Domestic violence is accepted to be a blight on civil society. A court sentencing an offender for an offence committed in what is loosely described as a “domestic context” must apply specifically developed sentencing principles.

The High Court in The Queen v Kilic (2016) 259 CLR 256 at [21] recognised a societal shift in relation to domestic violence:

The community’s concern at the level of domestic violence, generally inflicted by men against women, is given effect in sentencing by recognising the importance of general and specific deterrence. In that context, in Yaman v R [2020] NSWCCA 239 at [135] Wilson J (Fullerton and Ierace JJ agreeing) said:

Definitions of “personal violence offence” and “domestic violence offence” are found in ss 4, 5, 5A, 11 Crimes (Domestic and Personal Violence) Act 2007. These definitions are used as a basis for applying provisions in the Crimes (Sentencing Procedure) Act 1999 such as those discussed below.

A “domestic violence offence” is defined in s 11 Crimes (Domestic and Personal Violence) Act as an offence committed against a person with whom the offender has (or has had) a domestic relationship, being:

Section 6A of the Crimes (Domestic and Personal Violence) Act provides the definition of “domestic abuse”, and what may constitute domestic abuse. Section 6A was introduced, and s 11(1)(c) replaced, by the Crimes Legislation Amendment (Coercive Control) Act 2022, and apply to behaviour (or alleged behaviour) that occurred, or an offence (or an alleged offence) that was committed, on or after 1 February 2024: Crimes Legislation Amendment (Coercive Control) Act, s 2; Sch 2[6].

“Domestic relationship” is broadly defined in s 5. The definition of “personal violence offence” in s 4 includes most of the assault and wounding offences referred to in the list in Assault, wounding and related offences at [50-000]. Section 12(2) provides that if a person pleads guilty to, or is found guilty of, an offence and the court is satisfied the offence was a domestic violence offence, the court must direct that the offence be recorded on the person’s criminal record as a domestic violence offence.

Section 5A provides that a personal violence offence by a paid carer against a dependant is a domestic violence offence and an ADVO may be made for the dependant’s protection. However, a personal violence offence committed by a dependant against a paid carer is not a domestic violence offence, although the paid carer may still apply for an APVO against the dependant.

The Crimes (Sentencing Procedure) Act 1999 imposes several requirements on a court sentencing an offender for a domestic violence offence.

When a court finds a person guilty of a domestic violence offence, it must impose, under s 4A(1), either:

However, the court may impose a different sentence if satisfied that it is more appropriate in the circumstances, and gives reasons for reaching that view: s 4A(2).

Additional requirements designed for the protection and safety of victims are set out in s 4B:

See also Intensive Correction Orders (ICOs) (alternative to full-time imprisonment) at [3-600]ff, Community Correction Orders (CCOs) at [4-400]ff and Conditional Release Orders (CROs) at [4-700]ff.

In addition, ss 39(1) and 39(1A) Crimes (Domestic and Personal Violence) Act 2007 relevantly provide that following a guilty plea being entered by, or a finding of guilt being made in respect of, an offender who has committed a serious offence (defined in s 40(5)), a court must make a final apprehended violence order (AVO) for the victim’s protection, regardless of whether an interim AVO has been made or whether an application for an AVO has been made, unless satisfied that an order is “not required”. For adult offenders sentenced to full-time imprisonment the ADVO must be for the period of imprisonment and an additional two years, unless there is good reason to impose a different period: ss 39(2A)–(2C). In terms of when an ADVO comes into force, s 39(2D) states:

Domestic violence orders made in one State or Territory are now recognised in all other Australian jurisdictions as a consequence of the national recognition scheme given statutory effect in Pt 13B Crimes (Domestic and Personal Violence) Act 2007 which enables the enforcement of the prohibitions and restrictions contained in interstate and foreign domestic violence orders.

A comprehensive examination of the cases and legislation can be found in A Gombru, G Brignell and H Donnelly, “Sentencing for domestic violence”, Sentencing Trends & Issues, No 45, Judicial Commission of NSW, June 2016. See also M Zaki, B Baylock, P Poletti, “Sentencing for domestic violence in the Local Court”, Sentencing Trends & issues, No 48, Judicial Commission of NSW, July 2022.

The High Court in Munda v Western Australia (2013) 249 CLR 600 at [54]–[55] referred to the role of the criminal law in the context of domestic violence as including:

In assessing the crime before it, the court in The Queen v Kilic (2016) 259 CLR 256 treated the fact the respondent’s offence involved domestic violence as a distinguishing aggravating circumstance of significance and, at [28], referred to: “… the abuse of a relationship of trust which such an offence necessarily entails and which ... must be deterred”.

In Cherry v R [2017] NSWCCA 150, Johnson J at [78] (Macfarlane JA and Harrison J agreeing) said:

The importance of general deterrence in condemning such conduct was clearly explained by Wilson J (Fullerton and Ierace JJ agreeing) in Yaman v R [2020] NSWCCA 239 at [131] as follows:

The denunciation of, and punishment for, “brutal” and “alcohol-fuelled” conduct in the context of a domestic relationship was considered to be particularly apt in Ngatamariki v R [2016] NSWCCA 155 at [73]. Serious domestic violence offences, such as the sustained offending over 6 years in R v JD [2018] NSWCCA 233, should attract appropriate sentences to maintain public confidence in the administration of justice: at [102]. Indeed, in sentencing a domestic violence offender, particularly a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation and the need for protection of the community: R v Hamid (2006) 164 A Crim R 179 at [86]. See also Turnbull v R [2019] NSWCCA 97 at [153].

While a background of childhood deprivation may reduce moral culpability making an offender unsuitable for general deterrence (see [10-470] Deprived background of an offender), in dealing with domestic violence offenders, victims are not to be treated as less worthy of protection, nor that the crimes against them found warranting less denunciation, because of factors personal to the offender: Kennedy v R [2022] NSWCCA 215 at [43].

The appropriate imposition of a conviction with no further penalty under s 10A for a domestic violence offence must be rare: R v Sharrouf [2023] NSWCCA 137 at [188]. See also DPP v Darcy-Shillingsworth [2017] NSWCCA 224 at [84]–[85], [107]–[108] where the court held that the sentences imposed for offences committed in a domestic violence context did not reflect the community interest in general deterrence.

The courts have recognised the special dynamics of domestic violence. A victim of a domestic violence offence is personally targeted by the offender and the offence is usually part of a larger picture of physical and mental violence in which the offender exercises power and control over the victim: R v Burton [2008] NSWCCA 128 at [97]; see also R v JD [2018] NSWCCA 233 at [92]. In most instances, the conduct typically involves aggression by men who are physically stronger than their victims, and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths: Patsan v R [2018] NSWCCA 129 at [39]–[40]; Diaz v R [2018] NSWCCA 33 at [5]; R v Edigarov [2001] NSWCCA 436 at [41].

Another common feature is that there may be a considerable delay between the offences and the victim making a complaint. However, such delay should not be held against a victim as it is a direct product of the nature of the offending. It would be incongruous for the offender to benefit from such delay: Hurst v R [2017] NSWCCA 114 at [132], see also [138].

The offender often has a genuine, albeit irrational, belief of being wronged by the victim and also believes the violence is justified: Xue v R [2017] NSWCCA 137 at [53]; Ahmu v R [2014] NSWCCA 312 at [83]. But a resort to violence is not justified even if the belief turns out to be correct: Xue v R at [53]; see also Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86].

There is a continuing threat to the victim’s safety even where the victim becomes estranged from the offender: R v Dunn [2004] NSWCCA 41 at [47]. The victim may forgive the offender against their own interests: R v Glen (unrep, 19/12/94, NSWCCA); R v Rowe (1996) 89 A Crim R 467; R v Burton at [105]. Sentencing courts must treat such forgiveness with caution and attribute weight to general and specific deterrence, denunciation and protection of the community: R v Hamid at [86]; Simpson v R [2014] NSWCCA 23 at [35]; R v Eckermann [2013] NSWCCA 188 at [55]; Ahmu v R at [83]. The attitude of the victim cannot interfere with the exercise of the sentencing discretion: R v Palu [2002] NSWCCA 381 at [37].

Particular care is required on the part of a court when it makes findings of fact concerning the aggravating factor that the victim was vulnerable. The judge erred in Drew v R [2016] 264 NSWCCA 310 by observing that the victim was vulnerable using generalisations about a culture of silence and ostracism within Aboriginal communities in relation to domestic violence: Drew v R per Fagan J at [8], Gleeson JA agreeing at [1], N Adams J at [84]. Such a finding was not open on the evidence in the case: Drew v R at [3]–[4]. Further, the aggravating factor of vulnerability under s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999 is only engaged where the victim is one of a class that is vulnerable by reason of some common characteristic: Drew v R at [8]. See N Adams J’s discussion of the cases in Drew v R at [75]–[78].

However, a finding that the victim was vulnerable in the more general sense of being under an impaired ability to avoid physical conflict with the offender or defend herself in the event of such conflict was well open on the evidence: Drew v R at [5], [8]. It was a circumstance of the offence, relevant to determining the appropriate sentence, that because of the victim’s emotional and intimate attachment to the offender she was less likely than any other potential victim to avoid him or put herself out of harm’s way: Drew v R at [7]. That individual vulnerability had, in practical terms, the same consequence for assessment of the objective seriousness of the offence: Drew v R at [8].

Domestic violence is addressed elsewhere in the publication as follows:

In Browning v R [2015] NSWCCA 147 at [5], the court affirmed Spigelman CJ’s observations in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [20] concerning the objectives of the statutory scheme at the time which made provision for apprehended violence orders:

See the Local Court Bench Book for procedures with regard to apprehended violence orders from [22-000]ff.

Section 14(1) Crimes (Domestic and Personal Violence) Act 2007 provides for the offence of contravening an apprehended violence order (AVO). Section 14(4) provides:

An offence committed in breach of an AVO is a significant source of aggravation: Kennedy v R [2008] NSWCCA 21 at [8]; R v Macadam-Kellie [2001] NSWCCA 170 at [37]–[38]. Such offences are not offences committed in breach of conditional liberty simpliciter; they breach a form of conditional liberty designed to protect the same victim from further attacks by the offender: Cherry v R [2017] NSWCCA 150 at [80]. There is a particular need to show there will be a heavy price to pay for indulging in domestic violence particularly when court orders have been issued to prohibit such violence, lest such orders are seen to be, and become, wholly futile: Turnbull v R [2019] NSWCCA 97 at [153].

It is also a significant aggravating factor under s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 if an offender commits offences whilst on conditional liberty for offences arising from breaches of an AVO order: Jeffries v R [2008] 185 NSWCCA 144 at [91]; Browning v R [2015] NSWCCA 147 at [8].

Offences committed in breach of an AVO and the offence of breaching an AVO, involve separate and distinct criminality. There is no duplicity in imposing distinct sentences for each offence: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [131]. Breaches of an AVO should ordinarily be separately punished from an offence occurring at the same time. In Suksa-Ngacharoen v R at [132], when discussing the criminality inherent in a breach of an ADVO, Wilson J (Leeming JA and Bellew J agreeing) said:

Section 13(1) Crimes (Domestic and Personal Violence) Act 2007 contains an offence of stalking or intimidating another person with the intention of causing the other person to fear physical or mental harm. Section 13(3) provides that a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. A person who attempts to commit such an offence is liable to the same penalty as if the person had committed the offence itself: s 13(5). The offence of intimidation is one of “specific intent” under s 428B Crimes Act 1900 and, therefore, an offender’s intoxication can be considered for the purposes of determining criminal liability: McIlwraith v R [2017] NSWCCA 13 at [39]–[42]. However, an offender’s intoxication at the time of the offence cannot be relied upon as a matter of mitigation at sentence: s 21A(5AA) Crimes (Sentencing Procedure) Act; see also Cherry v R at [81] in the context of self-induced intoxication because of drug use.

See [11-335] Special rule for intoxication.

The Crimes Legislation Amendment (Coercive Control) Act 2022 (the Act) relevantly amends the Crimes Act 1900 to create a new offence of abusive behaviour towards intimate partners.

The offence involves engaging in a course of conduct consisting of abusive behaviour (violence, threats, intimidation, or coercion or control of a person) against a current or former intimate partner, with the intention of coercing or controlling that person: s 54D(1). Sections 54F and 54G provide definitions for “abusive behaviour” and “course of conduct” respectively. Section 54E provides for a defence to the new offence. A suggested direction and accompanying notes regarding the new offence are provided in the Criminal Trial Courts Bench Book at [5-2010], [5-2020] respectively.

The new offence provisions are expected to commence between 1 February and 1 July 2024 and will only apply to conduct occurring on or after the commencement of the amendments: the Act, s 2; Sch 1[2].

The maximum penalty for the new offence is 7 years imprisonment: s 54D(1). It is a Table 1 offence and may be dealt with summarily.

For a discussion of the reforms and the new offence, see R Hulme and E Sercombe, “Introducing the NSW coercive control reforms” (2023) 35(10) JOB 101. The Judicial Information Research System’s Coercive Control resource may be accessed at https://jirs.judcom.nsw.gov.au/menus/coercive_control.php for JIRS subscribers.

A suggested direction and accompanying notes regarding the new offence are provided in the Criminal Trial Courts Bench Book at [5-2010]ff.