Should There Be Mandatory Sentencing for Domestic Violence Offenders?

Should mandatory sentencing be introduced in Australia for domestic violence offenders?

Domestic violence is considered a national emergency. According to the Government of NSW Women’s Health Department “over 240,000 Australian adult women are physically assaulted each year” and “one in three Australian women will experience violence in their lifetime.”

New measures to tackle drug and alcohol related violence were put in place in 2014 when the Australian government introduced mandatory minimum sentencing for one-punch assaults. The “one punch” bill was introduced to combat alcohol-fuelled violence that has been on the rise in Australia since 2000. Now, Josephine Cashman, chairwoman of the Community Safety Committee of the Prime Minister’s Indigenous Advisory Council says domestic violence offenders should face mandatory jail time just like one punch offenders.

Why there should be mandatory sentencing for domestic violence offenders?

The reason that many feel that there should be minimum sentencing for domestic violence offenders is because offenders receive such a huge variation in penalties. Every sentence is considered on a case by case basis with many things being taken into consideration including: any prior convictions, breaching of AVO orders or whether there was any grievous bodily harm inflicted.

Advocates feel it is “no wonder we are not reducing rates of domestic violence” as “domestic violence jail times are too short” according to the Sydney Morning Herald.

For example, the most common charge in relation to domestic violence is “common assault.” “Those convicted on this charge were most likely to receive an unsupervised bond (29.6 per cent) . . . with just 7.2 per cent receiv[ing] a prison sentence.” This type of sentence is viewed by many as unduly lenient.

As Michael Slater, Lecturer in Criminology at the University of Western Sydney points out the fact that most domestic violence offenders have a low likelihood of imprisonment raises questions as to whether the prospect of jail is really a deterrence, “given the low likelihood of imprisonment and the brief stay of most domestic violence offenders.”

Not only is sentencing for domestic violence offences inadequate, the risk of domestic violence offenders re-offending is also great. This is especially true for the majority of offenders who come from low socioeconomic backgrounds, have a mental illness, a criminal history or who have substance abuse issues. For these offenders their persistent desire for control is linked to their low socio economic status and other markers of disadvantage. These individuals are the most resistant to treatment and behaviour change because they have the least to lose.

In comparison, “middle- and upper-class men may engage in serious domestic violence” but “the threat of arrest is a greater deterrent due to the serious implications for their employment and social status” (Sherman et al. 1992).

The one punch law was introduced in response to the violence that stemmed from alcohol consumption. Studies show there is also a clear correlation between domestic violence and alcohol consumption/abuse. A report by the Australian Institute on Criminology showed that the “West Australian Task Force on Domestic Violence found that 42 per cent of domestic violence incidents involved alcohol.”

A report by the Australian Government also revealed that “research demonstrating that women whose partners consume alcohol at excessive levels are more likely to experience domestic violence (Marcus & Braaf 2007).

By imposing a mandatory minimum sentence, government wants to send a strong message that domestic violence, like ”one punch” assaults is an especially serious crime and will be responded to using the full strength of the law.

The case against mandatory sentencing.

Critics such as The Law Council of Australia say that minimum mandatory sentencing “imposes undesirable restrictions on judicial discretion and independence, and undermines the fundamental rule of law principles.”

Substantial variation in sentencing takes into account all the particular circumstances and specifics of each case. Therefore “removing judicial discretion in sentencing is serious miscarriage of justice.”

A statement by The Law Council of Australia further argue that “we cannot tie the hands of the courts in sentencing matters as this creates especially unjust outcomes for particular groups within society, including Indigenous Australians.”

Arguments against mandatory sentencing for domestic violence offenders state that traditional justice principles of punishment, deterrence and rehabilitation, including minimum mandatory sentencing is ineffective in curtailing this type of crime.  Offender right advocates say that many of these offenders are disadvantaged and to break the cycle of violence a community based approach should be established that involves the collaboration between the justice system and social welfare agencies.

Does mandatory sentencing reduce crime?

There is continued debate about the efficacy of mandatory minimum sentencing. Western Australia introduced a mandatory minimum sentence for assault on a police officer in 2009. One year after the law was introduced, police minister Rob Johnson and attorney-general Christian Porter reported a 28 per cent decrease in assaults on police officers.

However, NSW Bar Association president Phillip Boulten SC says: “there’s no evidence at all that mandatory sentencing ever decreases the amount of crime that is committed and it has the ability to act unfairly on vulnerable and disadvantaged groups.”

According to ABC News though, ”experts contacted by Fact Check say there is not much evidence that mandatory sentencing reduces the level of crime being committed, but there is some.” Therefore we will not know if this will also be the case with domestic violence offences until the minimum mandatory sentencing is put in place.