Sentencing for domestic violence offences
NSW Court of Criminal Appeal, 29 June 2018
The offender pleaded guilty to recklessly causing grievous bodily harm on the victim with whom he had commenced an intimate relationship. A further charge of assault occasioning actual bodily harm was taken into account on a Form 1.
The District Court imposed a sentence of 2 years and 3 months imprisonment with a non-parole period of 1 year and 4 months.
The offender sought leave to appeal against sentence in the Court of Criminal Appeal (CCA).
Justice Adamson (with whom Chief Justice Bathurst and Justice Leeming agreed) refused leave to appeal the sentence. In doing so, she rejected the submission that the sentencing judge had, in effect, used the applicant as a scapegoat for the prevalence of domestic violence offences:
"While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them. The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant’s conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths."
Justice Adamson observed that the CCA has frequently applied the approach sanctioned by the High Court that recognises the role of the criminal law in the context of domestic violence (arising from a change in societal attitudes to domestic violence) and that authorises giving significant weight to specific and general deterrence, denunciation and community protection.