A pattern of abusive behaviour in intimate partner relationships is to be treated as an aggravating factor when it comes to sentencing for domestic violence offences, according to new guidance for judges.
Other aggravating factors include if an offence is committed in the home, if children are present, and if an offender acts to prevent disclosure of it, the guidance states.
Evidence of an offender’s “good character” is, “at best, a minor mitigatory factor” in a domestic violence context, it said.
An intimate relationship is to be treated as an aggravating factor when sentencing, “with the sentence to be greater than it would otherwise be”.
Prepared by the Judicial Council’s sentencing guidelines and information committee, the non-binding guidance on sentencing for domestic violence offences is set out in a report approved by the board of the council and published on its website last Friday.
The Judicial Council Act 2019 provided for the preparation and adoption of sentencing and other guidelines by the council.
Because the Supreme Court ruled in 2022 that amending legislation is necessary for guidelines to be legally binding, the sentencing guidance has no binding effect unless such legislation is enacted, the committee noted in its report.
It hopes judges would nonetheless find the report’s analysis and insights “useful”.
The report mainly focuses on the application of section 40 of the Domestic Violence Act 2018, which applies if the victim and offender are or were in an intimate relationship, referred to as a “relevant relationship”.
Section 40 covers offences including rape, sexual assault, other assault offences, harassment and stalking and any other offence involving violence, or a threat to violence, to a person in an intimate relationship context, such as breaches of safety and barring orders.
While coercive control is not a section 40 offence, the committee hopes its guidance may assist judges in identifying the aggravating and mitigating factors in such cases.
A relevant relationship should be taken into account when assessing gravity of an offence, for reasons including the trauma caused is “generally deeper than if there were no intimate relationship”.
An offence must be looked at in context, and a pattern of abusive behaviour, breach of trust and domination is an aggravating factor.
Additional culpability arises if the offender deliberately took advantage of the victim’s trust or any vulnerability, including vulnerability arising from social isolation or immigration status.
The views of victims about the appropriate sentence, whether seeking leniency or severity, “cannot be determinative” in any cases, the report stresses.
Sentencing is a judicial function and, in that context, a victim’s views will be most relevant if they can provide insight into the background and conduct of the offender. Any intention to continue contact between the offender and any children may have to be considered.
Judges should be aware cases with a background of domestic abuse have a “disproportionately high” rate of victim withdrawal from the process, the report notes.
Mitigating factors relating to a particular offender must be taken into account but good character evidence is “at best, a minor mitigatory factor” and of little weight if there is a pattern of abusive behaviour. If an offender deliberately used their standing in the community to shield them from discovery and undermine a victim’s credibility, that is an aggravating factor.
Self-induced intoxication by alcohol or drugs is never a mitigating factor but a “genuine effort” to deal with addiction can be taken into account.
Post-offence mitigatory factors can include an early apology, admission of wrongdoing, avoiding manipulation of children to underline the victim and participation in an appropriate programme to address the underlying cause of abusive behaviour.
A voluntary offer of compensation to the victim is to be considered a mitigatory factor if the judge is satisfied it reflects genuine remorse and acceptance of responsibility but does not necessarily mean a custodial sentence will not be imposed.
Anger management courses and fines are not recommended in domestic abuse cases, the report states. Restorative justice interventions are not recommended, at least in the period before sentence is finalised, as they can be “manipulated” by offenders.
