A new statutory guideline adopted by judges provides for heavier sentences for domestic violence offences committed by adults in intimate relationships.
The 30-page guideline, the first adopted under the Judicial Council Act, relates to offences under section 40 of the Domestic Violence Act 2018.
In a statement on Thursday, the Judicial Council announced the guideline – prepared by its sentencing committee – was adopted at a meeting of judges the previous day.
Before the enactment of section 40, sentencing judges would generally have seen abuse of trust, confidence or a dominant position within an intimate relationship as aggravating factors in relation to most of the offences covered by the section, it noted.
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“What is new is that this principle must now be applied systematically to the specified offences, and there is now a specific requirement for a heavier sentence than might otherwise have been imposed.”
In imposing a sentence, a judge must have regard to any guideline made under the Act unless they consider that, for stated reasons, to do so would be unjust in the “exceptional” circumstances of the case.
Section 40 relates to offences committed in a context where the victim and offender were or are married, in a civil partnership or intimate relationship. The offences include assault causing harm and serious harm, threatening to kill, harassment, stalking, endangerment and false imprisonment.
Many considerations identified by the guideline will be relevant to judges dealing with some offences not listed under section 40, including coercive control and offences involving violence or a threat of violence to a person. This might include cases involving breaches of safety, protection and barring orders in a context of an intimate relationship.
Where an offence is committed in that context, it must be looked at in its context, not in isolation, the guideline stipulates. An intimate relationship must be seen as a factor that aggravates sentence for offences under section 40.
The sentence ultimately imposed must, where there is a relevant relationship, “be greater than would otherwise be the case” but can never exceed the maximum sentence provided for by statute.
The fact of the relationship should be taken into account in assessing the gravity of the offence because of the additional harm caused to the victim and the possibility that the offender’s culpability is greater.
The trauma caused by an offence in that context is generally deeper, the guideline noted. The presence of children and any action aimed at preventing the victim from disclosing the offence should be seen as among aggravating factors.
Judges must take into account any evidence about the effect of the offence on the victim, including a pattern of abusive behaviour.
Compensation to a victim may be offered or ordered, but the court should “never countenance the possibility that money can purchase leniency”.
Mitigatory factors relating to the offender must be taken into account, but the question of “good character” requires “more careful consideration” than might be necessary in the context of other offences, and character will be “at best a minor mitigatory factor”.
Taking responsibility for harm done and committing to behavioural change are “highly significant” mitigatory factors.
