5.116 Under section 125 of the Family Violence Protection Act 2008 (Vic), an aggrieved family member
cannot be found guilty of aiding and abetting the commission of a summary offence496 because the
person ‘encourages, permits or authorises conduct by the respondent that contravenes the family violence intervention order or family violence safety notice’. One of the examples of this type of conduct provided in this section is ‘the protected person invites or allows the respondent to have access to the residence or another place in contravention of the family violence intervention order or family violence safety notice’.
How courts view victim contribution
5.117 A court may take into account the contribution of the victim in sentencing. In the Council’s survey
of Victorian magistrates, one magistrate commented, ‘[I] think if the victim is initiating contact with
the defendant which is the nature of the breach, this is highly relevant’.497
5.118 Another magistrate admitted to experiencing difficulties in:
deciding what impact (if any) an invitation to attend at the ‘prohibited premises’, or meeting where there is to be no contact, by the AFM [aggrieved family member] should have on sentencing the defendant on a breach.498
5.119 In her 2003–04 study of prosecutions of intimate partner violence, Heather Douglas examined
thirty cases heard in Queensland.499 She found that, on many occasions, appellants argued that
certain behaviours of the victim should be taken into account in their favour. Judges generally did
not state whether or not they found these matters to be favourable to the offender’s case.500 In
one of the cases, R v Von Pein,501 the victim hit the offender and then he assaulted her. In another,
R v Ketchup,502 the victim was drunk. While the Court of Appeal in each case saw these as
‘relevant considerations’, they did not adjust the sentence imposed by the court at first instance.503
5.120 In a study conducted by the Judicial Commission of New South Wales, magistrates were given
vignettes involving breaches of apprehended violence orders and asked to consider the appropriate sentence in each case. In one vignette, 55 per cent of magistrates mentioned that the aggrieved person had let the defendant into the house in a particular scenario and 42 per cent thought this
mitigated the breach.504
496 Pursuant to s 52 of the Magistrates’ Court Act 1989 (Vic).
497 Sentencing Advisory Council, Survey of Victorian Magistrates (October 2008), Survey Number 13.
498 Sentencing Advisory Council, Survey of Victorian Magistrates (October 2008), Survey Number 9. A Victoria Legal Aid lawyer with whom the Council consulted recognised the difficulty courts have in assessing the impact of a victim’s contribution to a breach: ‘If a woman invites the man back, this is still a breach, but very difficult for the courts to weigh up. But this might be reflected in the sentence, particularly where the victim and defendant have reconciled’. Meeting with Victoria Legal Aid Roundtable (24 September 2008).
499 Douglas (2004), above n 356. 500 Ibid 96.
501 R v Von Pein [2002] QCA 385 (Unreported, de Jersey CJ, Helman and Jones JJ, 25 September 2002), cited ibid 97. 502 R v Ketchup [2001] QCA 501 (Unreported, McMurdo P, Davies and Williams JJA, 15 November 2001), cited ibid 97. 503 Ibid 97.
504 Judicial Commission of New South Wales, Apprehended Violence Orders: A Survey of Magistrates, Monograph Series Number 20 (1999) 68–9.
S en te nc in g F ac to rs UK approach
5.121 The UK Guidelines for Breach of a Protective Order provides that where an order is breached in
circumstances where the victim has contacted the offender, this should be considered a mitigating factor. However, the UK Council is also careful to point out that ‘it is the responsibility of the
offender and not the victim to ensure that the order is complied with’.505 The UK Council also advised the court to look at the ‘history of the relationship and the specific nature of the contact’ in
deciding whether the behaviour is mitigating.506 It should be noted that there was some concern
about ‘victim-blaming’ in response to the Sentencing Advisory Panel’s consultation paper in relation
to this factor, which led to the inclusion of the italicised wording in the guideline.507
Consultation
5.122 Some participants queried the quality of the aggrieved family member’s consent in inviting a
perpetrator into the home. It was suggested that there may be cases in which the victim is under
some form of duress.508 Also, such behaviour has to be seen in light of the cycle of violence. The
woman may hope that her partner will ‘behave’—in the honeymoon period, for example.509
5.123 The Federation of Community Legal Centres were of the view that ‘the contribution of the victim
to the breach should be very cautiously, if ever, considered as relevant to sentencing’.510 Similarly,
the Women’s Legal Service submitted that:
While it may seem fair to take the contribution of the victim into account in sentencing for breaches of intervention orders, our experience indicates that there is real danger that this could be inappropriately misused against the victim. It is important to avoid the historical prejudicial attitudes towards family violence in which a victim’s behaviour is seen as ‘provoking the breach’.511
5.124 One magistrate said that defence lawyers often try to argue that the victim ‘aided and abetted’ the
breach, but that such arguments generally held little sway. Summary
5.125 Clearly, courts may generally take into account the contribution of the victim to any breach of
intervention order. However, given the unique dynamics of family violence situations, courts need to be cautious in assessing the degree to which victim behaviour may mitigate the seriousness of the offence. Again, a solid understanding of family violence issues and some detailed knowledge of the context of the particular breach will assist magistrates in this task.
505 Sentencing Guidelines Council [UK] (2006), above n 157, 6. 506 Ibid.
507 Sentencing Guidelines Council [UK] (2006), above n 431, 14. 508 Family Violence Service Providers Roundtable (18 September 2008). 509 Family Violence Service Providers Roundtable (18 September 2008). 510 Federation of Community Legal Centres (Submission).
Sentencing Practices for Breach of Intervention Orders
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