Proposed Sentencing Guidelines for Breach of Intervention Order

Proposed Sentencing Guidelines for Breach of Intervention Order Criminal Law Section To Stephen Farrow, Chief Executive Officer, Sentencing Advisory Council 25 February 2009 Queries regarding this submission should be directed to: Contact persons Ann Graham Ph (03) 9607 9374 Email agraham@liv.asn.au Law Institute of Victoria (LIV). No part of this submission may be reproduced for any purpose without the prior permission of the LIV. The LIV makes most of its submissions available on its website at www.liv.asn.au

Table of Contents Introduction...3 Factors relating to the victim...3 Alternative Proposal...5 Factors relating to the offender...5 Whether prior convictions relate to the victim...6 Whether prior convictions represent rolled up charges...6 Sentencing Range and Appropriateness of Particular Sanctions...6 Status of Sentencing Guidelines for Breach of FVIO...7 20090225_SentencingGuidelines Page 2

Introduction I refer to your letter of 21 January 2009 inviting comment on the Sentencing Advisory Council s Draft Report in relation to Sentencing Practices for Breach of Family Violence Intervention Orders. The Law Institute of Victoria (LIV) is grateful for the opportunity to comment on the Draft Sentencing Guidelines. The LIV acknowledges that there may be a perception amongst stakeholders that sentencing for breach of Family Violence Intervention Orders (FVIO) is inconsistent and lenient. Whilst the LIV notes that statistical analysis undertaken by the Sentencing Advisory Council (SAC) appears to confirm some of those perceptions, the LIV concurs with the SAC s observation that the exercise of sentencing discretion is a complex process which is not necessarily reflected in the available sentencing statistics. There will often be valid reasons for an otherwise anomalous, and apparently lenient, sentencing outcome which were apparent to the court at the time of sentencing but not reflected in the statistics. The LIV agrees that a primary purpose in sentencing for a breach of FVIO should be to achieve compliance with the order or any future orders to secure the safety and protection of the victim. However, the LIV wishes to comment on specific aspects of the Draft Guidelines for Sentencing Breaches of Family Violence Intervention Orders. The LIV acknowledges that there are insufficient services currently available for men to access behavioural change programs relating to family violence. The LIV supports the SAC s recommendation for government funding of men s behavioural change programs specifically targeted at family violence offenders. The LIV acknowledges that support services in country areas generally, and in relation to family violence in particular, are inadequate and would need specific resources allocated by government to support private agencies if government programs could not be rolled out across the State. The LIV submits that the Sentencing Act 1991 should be amended to allow courts to attach program conditions to suspended sentences to provide Magistrates with all possible sentencing options to take into account the often complex family dynamics when sentencing for breach of a FVIO. Factors relating to the victim The LIV accepts that a magistrate should be provided with all relevant information on the breach to enable the court to determine the appropriate sentencing disposition. The LIV notes the SAC s recommendation that details of the original behaviour that led to the making of the FVIO and details of the history and dynamics of the parties relationship could be included in the police brief of evidence on the breach. The LIV acknowledges that this type of information might be difficult for police to obtain. The LIV submits, however, that the recommendation that the victim impact statement be admitted as evidence of the history of the relationship and/or the behaviour leading to the making of the original order would be contrary to established sentencing principles. The LIV has a number of reservations about the legal and practical implications of the recommendation. Those concerns include: Risk of sentencing for uncharged acts. The LIV is concerned that there is a risk of offenders being sentenced for uncharged acts if the court is to take into account the circumstances leading to the granting of the original FVIO. This is of particular concern as most FVIO s are made without the allegations being tested, whether by consent with a denial of the allegations, or after an ex parte hearing. That is, 20090225_SentencingGuidelines Page 3

the circumstances surrounding the making of the FVIO are not agreed facts for the purposes of sentencing on a plea to a subsequent breach; Reliability of victim s account of circumstances leading to the FVIO. It is unlikely that an historical account of events leading to the making of the original FVIO which is prepared by a victim would represent a balanced and objective view on which the court could rely. A court would never consider asking a victim of a burglary or an assault to provide a summary of the facts on which the court based its sentence because justice requires that the facts which describe the offence for which a person is sentenced must be an objective and fair account of the behaviour which comprised the offending. The summary of facts prepared by police and presented to the court in general criminal cases and for breach of a FVIO generally follows negotiation by the defendant s lawyer and is presented to the court as agreed facts on a plea. A failure to agree on the facts relevant to a charge usually leads to a contested hearing. A subjective recollection of events by a victim which might be set out in a victim impact statement may be significantly affected by the victim s emotions, motivations, language skills and other personal factors which could have a hidden impact on the reliability of the victim s account. Where there is no information available to police to corroborate the recollections of the victim in relation to the facts surrounding the making of the original FVIO, the court ought not rely on the subjective account prepared by the victim for the purposes of sentencing; Increase in contested breach hearings. If a court is entitled to take into account a victim impact statement for the purposes of determining the facts surrounding the making of the original FVIO, it is likely that defence will seek to challenge the tendering of the victim impact statement. As there is a risk that a challenge to the victim impact statement may be perceived by the court as evidence of a lack of remorse, defence lawyers may take the view that the safest course would be to contest the breach in full rather than undermine a plea in mitigation by challenging the facts contained in the victim impact statement. Considering the number of breach proceedings being initiated in the Magistrates Court, any increase in contested hearings for breach would be certain to have a significant impact on court resources and legal aid funding; Increase in appeals. For the reasons stated above, it is likely that there would also be an increase in contested appeals to the County Court if offenders are sentenced on the basis of uncorroborated facts provided by a victim. It is the LIV s view that if a court was to rely on a statement of facts prepared by a victim in relation to historical matters, it would effectively be delegating the responsibility for fact finding to a party in the proceeding. It is the LIV s view that the court must make its own findings on the basis of evidence presented by the prosecution and the defence as well as any information which forms part of the court record. The LIV strongly objects to the victim impact statement being used as a de-facto summary of the events surrounding the granting of the original FVIO which, under the proposed sentencing guidelines, would form part of the facts on which the offender is sentenced for a subsequent breach of that order. 20090225_SentencingGuidelines Page 4

Alternative Proposal As an alternative to the SAC proposal to expand the use of victim impact statements, the LIV suggests that information about the circumstances leading to the granting of the original FVIO should, and could, be included in the court record, together with an indication as to whether the defendant denied or accepted the allegations on which the FVIO was based. Where a FVIO is granted following a contested hearing, the Magistrate could enter a brief summary of the factual findings in the court record. Similarly, where the FVIO is granted by consent with both parties present at court, the Magistrate could enter into the court record a brief summary of agreed facts where possible. Where the parties were unable to agree on a summary of the facts, the court could include a brief summary of the allegations contained in the complaint and an indication as to whether the defendant admits or denies those allegations. Where an interim FVIO is granted without the respondent being served or a FVIO is otherwise granted ex parte, the Magistrate could enter a brief summary of the allegations contained in the complaint and note the circumstances in which the order is made. That is, whether the respondent was served with the complaint and summons, whether he was present at court, whether he denied or accepted the allegations in whole or in part, or indicated that he wished contest the application at a subsequent hearing. This information need not be included on the LEAP database, but would remain on the court record and be accessible to police, the defendant and the Magistrate on proceedings for a subsequent breach of the order. The LIV submits that the court record of the circumstances surrounding the granting of the FVIO should form part of the prosecution brief and must be provided to the defendant prior to the hearing of a charge of breaching that FVIO. Factors relating to the offender The LIV is concerned that an offender who was not present in court at the time of the granting of the FVIO, other than an offender who suffers from language difficulties, intellectual disability or mental illness, would not be able to raise a lack of understanding of the contents or the order or the consequences of a breach of the order in mitigation on a breach proceeding. There may be many circumstances where an offender did not fully comprehend his obligations as a respondent to a FVIO which do not fall within the limited exceptions proposed by SAC, particularly where he has not taken legal advice. For all the offenders charged with breach who might be manipulative and calculating, there will as many who are unsophisticated and confused. The LIV recommends that the proposed guidelines provide the court with a general discretion to take into account as a mitigating factor that the offender was not present when the FVIO was made. The LIV is concerned at the recommendation that a breach occurring shortly after the making of a FVIO is to be taken as an aggravating factor for sentencing. As discussed above, there may be many circumstances in which an offender does not fully comprehend his obligations as a respondent to a FVIO. In particular, an offender may not understand the relationship between the FVIO and any existing Family Court orders or other arrangements made prior to the FVIO until he is faced with the consequences of a breach. This may be especially relevant where there are arrangements in place for access to children, financial support arrangements or distribution of property following a separation, where there may be Family Court or other orders which are inconsistent with the FVIO. There would be many instances where respondents to a FVIO would not understand their obligations fully until they had obtained legal advice or had gone through a settling in period to find a workable solution which would give effect to competing factors affecting their family. The LIV recommends that the proposed guidelines provide the court with discretion to take into account all of the circumstances surrounding the breach when assessing whether the timing of the breach is an aggravating factor on sentence. 20090225_SentencingGuidelines Page 5

Whether prior convictions relate to the victim As defence lawyers generally discuss the facts and context of all relevant priors during a plea hearing, the LIV supports in principle the suggestion that police advise whether an offender s prior convictions relate to the victim who is the subject of the FVIO breach proceeding. However, the LIV reiterates its concerns stated above that the court should not rely on uncorroborated facts contained in a victim impact statement. The LIV recommends that the court only take into account details of previous offending described in police summaries, court records or material tendered by defence on the plea to minimise challenges to the facts on which the court relies for sentencing. Whether prior convictions represent rolled up charges The issue of advising the court of priors which can be described as rolled up charges is more problematic. The SAC suggests that the main reason for rolling up charges might be to secure a conviction for at least one or some charges where the victim is reluctant to proceed with a contested hearing of more serious or numerous charges. In reality there are many more reasons for settling charges on a plea than the reluctance of the victim to give evidence, such as: The prosecution may have made an assessment that there is insufficient evidence to secure a conviction on one or more charges; The victim or other prosecution witnesses may have been assessed by the prosecution as being likely to be unreliable, unsympathetic, lacking in credibility or competence or otherwise unpersuasive in a contested hearing; The victim or other prosecution witnesses may be unable to withstand the rigours of cross examination during a contested hearing because of their age, state of mental health or physical health at the time, which may or may not be connected to the offender s behaviour; Prosecution witnesses may be unavailable to come to court because they are incarcerated, overseas or cannot be located or are unwilling to attend at the time of a contested hearing; The defendant may have raised a defence in relation to his fitness to be tried or may be otherwise suffering from mental impairment which may be relevant to proving mens rea. The LIV submits that it is unlikely that police or prosecutors on a breach hearing would be aware of all of the circumstances which led to a decision by a previous prosecutor to accept a plea on one or more representative charges at some previous time, whether at the same court or at a different location. In the absence of reliable information in this regard it would be unjust for a court to take this information into account in sentencing for breach of a FVIO. The LIV objects to the court taking into account advice from police that the offenders previous convictions represent rolled up charges. Sentencing Range and Appropriateness of Particular Sanctions Taking into account the LIV s comments, above, the LIV otherwise commends the SAC on the table of sentencing considerations provided at pages 106 and 107 of the Draft Report. The table provides a clear and logical framework as a reference for prosecutors, defence and sentencing Magistrates. 20090225_SentencingGuidelines Page 6

Status of Sentencing Guidelines for Breach of FVIO The LIV notes that the Draft Report does not indicate the weight to be given to the proposed sentencing guidelines, or whether the proposed sentencing guidelines would be incorporated into the Family Violence Protection Act 2008, the Victorian Sentencing Manual, the Magistrates Bench Book or some other resource. The LIV recommends that the guidelines should be able to be easily amended to keep pace with developing caselaw, and therefore should not be incorporated in the Family Violence Protection Act 2008. Whether the guidelines are to be incorporated in the Victorian Sentencing Manual, the Magistrates Bench Book or some other resource, the LIV strongly recommends that the guidelines be readily available for use by police, prosecutors and defence. This would enable defence lawyers and prosecutors to properly prepare cases prior to sentencing, may also assist in settling cases, and would provide transparency and consistency in sentencing for breach of FVIO. Making the guidelines widely available would have the added benefit of raising the profile and educative value of the guidelines and, potentially, leading to culture change amongst past or potential offenders. 20090225_SentencingGuidelines Page 7