Are our Courts too lenient on Domestic Violence Offenders?
The presence of domestic violence in Australia has never been so topical and news-worthy. Victims of domestic violence, focus groups, the community, the government, and the courts have all made it very clear that domestic violence will not be tolerated in Australia.
A recent sentence handed down by the Queensland Court of Appeal (the highest court in Queensland) has generated a large amount of public attention and questions have been raised as to whether our courts are being too lenient on perpetrators of domestic violence.
In the matter of R v Kelley, Mr Kelley came before the court charged with Assault Occasioning Bodily Harm. The assault was committed against his female partner at the time, and for this reason, the conviction was recorded as a Domestic Violence Offence.
There was a Domestic Violence Protection Order in place prior to the offence naming Mr Kelley as the Respondent.
Facts of the case
Mr Kelly was 23 years of age at the time of the offence. He arrived at his partner’s house, and after some discussion the complainant ended the relationship. She held the front door handle and requested Mr Kelley to leave. Kelley then grabbed the complainant‘s arm and did not let go until she had let go of the handle. He then punched her once in the side of the face, causing immediate discomfort and bruising.
When the police questioned Kelley about the assault, he denied punching the complainant in the face and instead told police that the complainant had assaulted him. He also told police that the injury to the complainant’s face was from a previous injury received at the hand of a previous abusive partner.
The District Court sentenced Mr Kelley to three months’ imprisonment and ordered that he be released on parole after serving one month of that sentence in actual custody.
The sentencing judge noted that domestic violence was a “scourge in our country” and that “men who punch their female partners or wives are cowards.”
Making it clear that general deterrence played a big role in his sentencing decision, the judge further noted that “a message needs to be sent to the community that violence like this will not be tolerated by the court and that those who would act in this way towards their female partners need to realise that they stand a very good chance of going to prison.”
Court of Appeal Decision
Mr Kelley appealed the sentence to the Court of Appeal on the basis that the penalty was manifestly excessive.
The Court of Appeal overturned the original sentence, agreeing that it was excessive. Mr Kelley was resentenced to three months’ imprisonment to be fully suspended for a period of two years.
The Court of Appeal listed the factors that they considered when arriving to their decision, including that:-
- He was a relatively young, first time offender;
- The assault was one punch that occurred during an emotional meeting (which did not provide an excuse but instead context);
- There had been no further relevant offending since;
- He was a person of good character and was described by people known to him as quiet and non-violent;
- While no doubt distressing to the complainant, she sustained no lasting damage and had not provided a victim impact statement suggesting ongoing issues;
- He was in a new relationship and there was no suggestion of further contact with the complainant;
- He had been in gainful employment;
- He pleaded guilty; and
- He had excellent prospects at rehabilitation.
The Court of Appeal stated that “whilst a period of actual custody could not be said to be outside of the range of what might be imposed for an offence such as this…the particular circumstances here reveal that the sentence imposed was manifestly excessive.”
Commenting on the Court of Appeal’s decision to overturn the original sentence, Bill Potts stated that the decision struck an appropriate balance and still sent a strong message.
Bill noted that “What the Court of Appeal is saying … is that a custodial sentence was not warranted on this occasion for this defendant. (For) justice to be justice, it has to be individual. So, it’s not a one sentence fits all and we don’t want that to be because that can result in injustices for individuals.”
Article by Danielle Warren, Criminal Lawyer