Overarching Sentencing Guideline

11. Domestic Abuse

Introduction

There is no specific offence of domestic abuse. It is a general term describing a range of violent and/or controlling or coercive behaviour.

Domestic abuse can be defined as any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting his or her resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating his or her everyday behaviour.

Coercive behaviour is an act or pattern of acts of assault, threats, humiliation (whether public or private) and intimidation or other abuse that is used to harm, punish, or frighten the victim. Abuse may take place through person to person contact, or through other methods, including but not limited to, telephone calls, text, email, social networking sites or use of GPS tracking devices.

Care should be taken to avoid stereotypical assumptions regarding domestic abuse. Irrespective of gender, domestic abuse occurs amongst people of all ethnicities, sexualities, ages, disabilities, religion or beliefs, immigration status or socio–economic backgrounds. Domestic abuse can occur between family members as well as between intimate partners.

Many different criminal offences can involve domestic abuse and, where they do, the court should ensure that the sentence reflects that an offence has been committed within this context.

Assessing seriousness

The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to the victim’s life or the lives of others around them.

Domestic abuse offences are regarded as particularly serious within the criminal justice system. Domestic abuse is likely to become increasingly frequent and more serious the longer it continues, and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred.

Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked psychological, physical, sexual, financial or emotional abuse that has a particularly damaging effect on the victims and those around them.

Cases in which the victim has withdrawn from the prosecution do not indicate a lack of seriousness and no inference should be made regarding the lack of involvement of the victim in a case.

Aggravating and mitigating factors

The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context, and should be considered alongside offence specific factors.  The presence of domestic abuse aggravating and mitigating factors may justify an upward or downward adjustment in the applicable sentencing range.

da_agg_mit.PNG

Other factors influencing sentence

The following points of principle should be considered by a court when imposing sentence for any offences committed in a domestic context:

Wishes of the victim. A sentence imposed for an offence committed within a domestic context should be determined by the seriousness of the offence, not by any expressed wishes of the victim.

There are a number of reasons why it may be particularly important that this principle is observed within this context:

  • The court is sentencing on behalf of the wider public.
  • No victim is responsible for the sentence imposed.
  • There is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender.
  • The risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim.

Provocation is no mitigation to an offence within a domestic context, except in rare circumstances.

Chidren. The offender or the victim may ask the court to consider the interests of any children by imposing a less severe sentence. The court should consider not only the effect on the children if the relationship is disrupted but also the likely effect of any further incidents of domestic abuse. The court should take great care with such requests, as the sentence should primarily be determined by the seriousness of the offence.

Serious harm. Offences involving serious violence, or where the emotional/psychological harm caused is severe, will warrant a custodial sentence in the majority of cases.

Alternatives to custody. Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Where the custody threshold is only just crossed, the court will wish to consider whether the better option is instead to impose a community order or suspended sentence, including a supervision requirement to address domestic abuse behaviours. Such an option will normally only be appropriate where the court is satisfied that the offender genuinely intends to reform his or her behaviour and that there is a real prospect of rehabilitation being successful.

Restraining Orders

The court should also consider whether it is appropriate to make a restraining order, and if doing so, should ensure that it has all relevant up to date information.

Orders can be made on the initiative of the court; the views of the victim should be sought, but the victim’s consent is not required.

The order may prohibit the offender from doing anything for the purpose of protecting the victim of the offence, or any other person mentioned in the order, from further conduct which amounts to harassment or will cause a fear of violence.

If the parties are to continue or resume a relationship, courts may consider a prohibition within the restraining order not to molest the victim (as opposed to a prohibition on contacting the victim).

The order may have effect for a specified period or until further order.

A court before which a person is acquitted of an offence may make a restraining order if the court considers that it is necessary to protect a person from harassment by the defendant.

Victim personal statements

The absence of a victim personal statement (VPS) should not be taken to indicate the absence of harm.

A court should consider, where available, a VPS which will help it assess the immediate and possible long-term effects of the offence on the victim (and any children, where relevant) as well as the harm caused, whether physical or psychological.

 

 Previous page

10. Offenders Leaving The Jurisdiction

 Overarching Sentencing Guideline  Next page

12. Sentencing Offenders With

Mental Disorders & Impairments

 

 

pdf     
11. Domestic Abuse
Created: Monday, 15 February 2021 11:47 | Size: 97.69 KB