Imprisonment

NSW

  • Judicial Commission of NSW, Sentencing Bench Book (2018).

    [63-500] ‘Domestic violence offences’ is a dedicated chapter of the bench book dealing with the sentencing approach to domestic violence and apprehended violence orders. For breaches of apprehended violence orders, the bench book notes s 14(4) of the Crimes (Domestic and personal Violence) Act 2007 that states ‘[u]nless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person’ [63-520].

    [2-240] ‘To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b)’ notes that ‘weight should be given by a court to general and specific deterrence for a range of offences’ including ‘violent offences: committed in a domestic context: Simpson v R [2014] NSWCCA 23 at [35]; Smith v R [2013] NSWCCA 209 at [69]; R v Hamid (2006) 164 A Crim R 179 at [68]; and premeditated violence, particularly leading to grievous bodily harm, in R v Najem [2008] NSWCCA 32 at [33]’.

Vic

  • Judicial College of Victoria, Victorian Sentencing Manual (2015).

    The bench book does not contain observations regarding imprisonment specifically in the context of family violence cases. However, it does contain some general observations.

    Part 12.1 Introduction to imprisonment

    ‘Imprisonment is the most severe sanction available to Australian courts. In both the Victorian and Commonwealth schemes, it is the ‘sanction of last resort’, and together with other forms of confinement, is only to be imposed where no other penalty can meet the purposes of sentencing in a particular case’.

    Part 12.3.3.2 Identification of circumstances of ‘last resort’

    ‘Determining whether the last resort has necessarily been reached involves weighing the nature of the offence, the circumstances of the offence and matters personal to the offender. That the offence is of such a nature as to ordinarily justify imposing a sentence of imprisonment does not determine the need for imprisonment. The sentencer’s obligation is to be satisfied that no other sentence is appropriate before imposing a sentence of imprisonment: O’Connor [1987] VR 496 at 501; Skipper (1992) 64 A Crim R 260 […]A decision that imprisonment is the only appropriate sanction in any given case means that the court has concluded that retribution and deterrence must take precedence as sentencing purposes’.