Sentencing

Course of conduct

Most state and territory sentencing legislation does not expressly refer to a course of conduct as an express sentencing factor. One exception is the sentencing legislation of the ACT, which provides that a court sentencing an offender must take into account, where relevant and known ‘if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—the course of conduct’.^[3]

There is an issue about whether a court, in sentencing, can take into account conduct in respect of which an offender has not been charged. The ACT provision referred to above is expressed in the same terms as the Crimes Act 1914 (Cth) s 16A(2)(c).^[4] This is relevant because there has been case law in respect of the latter which reveals judicial disagreement about the meaning and ambit of s 16A(2)(c). In Weininger v The Queen Kirby J stated that the section did not allow ‘uncharged criminal acts’ to be taken into account in sentencing and expressed the view that the section was an attempt to express the totality principle.^[5] Callinan J, however, expressed the view that the section allowed a court to consider relevant conduct,

albeit that it might involve criminal acts which in turn might not have resulted in charged and established (by verdict or plea) facts constituting other offences.^[6]

Submissions and consultations in the course of the ALRC’s inquiry into the sentencing of federal offenders expressed confusion about the meaning and operation of s 16A(2)(c), and the ALRC recommended that the section be redrafted to provide greater clarity.^[7]

A provision allowing a course of conduct to be taken into account is also relevant where representative charges are used—that is, where a court sentences an offender for a limited or representative number of offences on the basis that those offences are part of a wider course of conduct. Representative charges are used in relation to sexual assault cases.

The Commissions consider that, to the maximum extent possible in criminal matters involving a course of conduct of family violence, police and prosecutors should be encouraged to pursue the option of using representative charges as a way of presenting a course of conduct to the court. The court should also, at the least, consider:

• whether the offence forms part of a series of proved or admitted criminal offences of the same or similar character; and
• where an offender has pleaded guilty to charges and has acknowledged that they are representative of criminality comprising uncharged conduct as well as the charged offences—the course of conduct comprising that criminality.

The Commissions consider that there is also merit in the specific context of sentencing for family-violence related offences for a court to consider evidence that an offender engaged in a pattern of family violence against a victim—even if this includes violence of a non-physical nature against the victim—such as emotional or economic abuse, which is typically, not of itself, criminal. Such evidence should be able to be taken into account for the purpose of rejecting any claim to mitigation. The Commissions are interested in hearing stakeholder views on this.

Further, the Commissions are interested in hearing whether:

• representative charges in family-violence related offences are under-utilised as a matter of practice;
• the extent to which guilty pleas entered to a family-violence related charge are accompanied by an acknowledgement that they are representative of criminality comprising uncharged conduct as well as the charged conduct;
• courts are sentencing family-violence related offences taking course of conduct issues into account, and if so, the parameters of any course of conduct considered by the court; and
• whether the sentencing legislation of states and territories needs to be amended to allow expressly for courses of conduct to be taken into account in sentencing. Such an amendment may have repercussions beyond the sentencing of offenders for family-violence related incidents.

The answers to several of the questions posed above will be affected by the exercise of prosecutorial decisions. In difficult to prove cases prosecutors may be tempted to accept a plea to a single incident assault. Therefore, the Commissions consider that appropriate prosecutorial guidelines will need to be developed, in addition to training and education in order to encourage more frequent and appropriate use of representative charges in family violence prosecutions.

Family violence as an aggravating factor?

Aggravating factors increase the culpability of an offender and act to increase the penalty to be imposed on sentencing—but never beyond the maximum penalty for an offence. Mitigating factors decrease the culpability of an offender and act to decrease the extent to which the offender should be punished. A more limited way of recognising family violence in sentencing is either to treat the fact that a crime was committed in the context of a family relationship as an aggravating factor in sentencing, or prevent it from being considered a mitigating factor in sentencing.

Some overseas jurisdictions treat the fact that the crime occurred in the context of a family relationship as an aggravating factor in sentencing. In Canada, the Criminal Code was amended in 1996 to provide that it is an aggravating factor if there is evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner.^[8] On 3 April 2006, the Parliament of Iceland passed an amendment to art 70 of the General Penal Code with regard to family violence, as follows:

In the event that an infraction was directed against a man, woman or child closely related to the perpetrator and their family connection is believed to have aggravated the violence of the act, this should generally be taken into account to increase the severity of the punishment.

The Commissions consider that, in some cases, it will be appropriate for a court to consider that the fact that an offender was in a relationship with, or the parent of the victim, as an aggravating factor in sentencing. However, the Commissions have some preliminary concerns about introducing a legislative requirement that would take away a judicial officer’s discretion in this regard. For example, if courts were always mandated to treat as aggravating the fact that an offence was committed in the context of a family relationship, this would conceivably apply in circumstances where it may not always be just and appropriate, such as in the case of:

• children who commit acts of violence against their parents, siblings or other family members;
• mothers suffering post-natal depression who commit acts of violence against their children; or
• any person with a mental illness who commits an act of violence against a family member.

The Commissions are therefore interested in hearing stakeholder views on the appropriateness or otherwise of treating as aggravating the fact that an offence was committed in the context of a family relationship. For example, would it be appropriate to adapt the approach taken in Iceland, which makes a specific link between a family relationship and an escalation of violence? If such an approach were considered appropriate, the Commissions are also interested in hearing how ‘family relationship’ should be construed for such purposes and, in particular, whether the definition of ‘family’ in family violence legislation should be adopted.

The Commissions are of the preliminary view that it would, however, be appropriate for sentencing legislation to specify expressly that the fact that an offence has been committed in the context of a family or domestic relationship should not be treated as a mitigating factor. The Commissions heard in consultation that courts have treated a family relationship as a mitigating factor on sentencing in circumstances where domestic partners or spouses have reconciled.^[9] To treat such a factor as mitigating can be seen to trivialise violence committed in a domestic setting.

Sentencing guidance

Another option for reform is the use of specific guidance on sentencing in the context of family violence. Guidance on sentencing is provided in a number of ways in Australian states and territories. For example, the Judicial Commission of NSW and the Judicial College of Victoria each produce sentencing bench books. The Commissions support the production of a model bench book, in consultation with jurisdictions, and as part of a national professional development program for judicial officers on family violence. A model bench book could play a significant role in guiding judicial officers in sentencing in family violence matters, by drawing attention to the particular features and dynamics of family violence of which judicial officers should be aware in sentencing offenders, as well as promoting national and intra-state consistency.