Domestic Violence Offences

Overview:

When a person is being sentenced for committing a domestic violence related offence there are additional sentencing principles that apply beyond the normal sentencing exercise. The Court is required to consider and apply these principles when sentencing offenders for domestic violence related offences. This article explains the additional sentencing principles that apply on domestic violence offences.

What are “Domestic Violence” Related Offences?

The Crimes (Domestic and Personal Violence) Act 2007 defines a “domestic violence offence” at Section 11 to mean an offence committed by a person against another person with whom the person commits the offence has (or has had) a “domestic relationship”, being:

• A personal violence offence, or
• An offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or
• An offence under Section 54D(1) of the Crimes Act 1900, or
• An offence, other than a personal violence offence or an offence above, in which the conduct that constitutes the offence is “domestic abuse”.

A “domestic relationship” is defined at Section 5 of the Crimes (Domestic and Personal Violence) Act 2007 and is broadly drafted to include persons married, in de facto partnerships, those who have or have had an intimate personal relationship (whether sexual or not), is living or have lived in the same household, involves a relationship of dependence in paid or unpaid care, is or was a relative of a person.

Whether conduct constitutes “domestic abuse” requires consideration of Section 6A of the Crimes (Domestic and Personal Violence) Act 2007. Domestic abuse means any behaviour that is directed by one person against another person which whom the first person has a domestic relationship with:

• Violent or threatening behaviour,
• Behaviour that coerces or controls the person,
• Behaviour that causes the second person to fear for the person’s safety or wellbeing or the safety or wellbeing of another person.

What Are the Principles that Apply?

Requirement for Full-Time Detention or Supervision

Section 4A of the Crimes (Sentencing Procedure) Act 1999 provides that when a Court finds a person guilty of a domestic violence offence, the Court must impose either a sentence of full-time detention or a supervised order unless satisfied that a different sentencing option is more appropriate.

A supervised order is an order (either an intensive corrections order, community corrections order or conditional release order) that contains a condition that the offender is to be supervised by the Department of Community Corrections.

Protection and Safety of Victims

The Crimes (Sentencing Procedure) Act 1999 at Section 4B contains further provisions intended at increasing the protection and safety of domestic violence victims by limiting the availability of certain sentencing options.

Section 4B(1) provides that an intensive corrections order must not be made unless the sentencing Court is satisfied that the victim of the domestic violence offence (and any person with whom the offender is likely to reside) will be adequately protected. The Act goes on to say that a home detention condition must not be imposed if the Court reasonably believes that the offender will reside with the victim.

When imposing a community corrections order or conditional release order, the Court must consider the safety of the victim of the offence as per Section 4B(3).

Contravene Apprehended Violence Order (‘AVO’) with Act of Violence

Where a person has breached an Apprehended Violence Order (‘AVO’) with an instance of violence, Section 14(4) of the Crimes (Domestic and Personal Violence) Act 2007 provides that the person must be sentenced to a term of imprisonment. This principle applies on all offences for contravening an AVO. Where an AVO is breached with an instance of violence, the only available sentencing options as per the legislation is a term of full-time custody, or an intensive corrections order.  

Legislation: