Sentencing Guidelines for Domestic Violence
December 2006
Nicola Sharp, Policy Manager
Background
In November 2003, the Sentencing Advisory Panel was invited by the Home Secretary to
consider sentencing in domestic violence cases. The referral came as a result of the Safety
and Justice consultation paper in which the Government set out proposals for dealing with
domestic violence. The proposals included a suggestion that sentencing in domestic violence
cases be referred to the Sentencing Advisory Panel as the best way to ensure that courts treat
domestic violence as seriously as other cases of violent crime and for sentencing to reflect this.
Refuge’s response to Safety and Justice
September 2003
Question 18:
Is the best way to ensure that the courts treat domestic violence as seriously as other offences
to refer the issue to the Sentencing Advisory Panel for them to issue guidelines to courts
dealing with domestic violence cases?
It is important that courts treat domestic violence as seriously as other offences, whilst
recognising that such offences are complex and essentially different to other types of crime.
Ways that courts could ensure that these offences are dealt with appropriately are to:
 Recognise the systematic and patterned nature of the abuse, allowing evidence from
previous incidents to be heard (Regina vs. Ontario Court of Appeal).
 Understand that ‘severity’ or ‘duration’ of assaults/abuse is not necessarily correlated with
psychological impacts/emotional harm to the victim.
 Recognise that domestic violence is a breach of trust (in Sweden there is an offence of
‘gross violation of a woman’s integrity’ which takes account of the unique nature of
domestic violence and allows for prosecution to take into account a pattern of events rather
than a single act).
 Ensure that these understandings about domestic violence are enshrined in legislation and
policy.
 Ensure sufficient training and resources are available to guarantee those responsible for
administering justice are both competent and compliant.
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Consultation process
July 2004
April 2006
May 2006
June 2006
December 2006
The Sentencing Advisory Panel produced the consultation paper:
‘Sentencing Guidelines on Domestic Violence Cases’ for response by 12
October 2004. Following the consultation, the Sentencing Advisory Panel
provided advice to the Sentencing Guidelines Council.
The Sentencing Guidelines Council formed a preliminary view and issued a
draft guideline ‘Overarching Principles: Domestic Violence’ to the Home
Secretary, Parliament and other stakeholders for feedback by 12 June
2006.1
Refuge provided media interviews branding proposals that perpetrators of
domestic violence should escape a custodial sentence if they show
adequate remorse a ‘travesty’ (see newspaper articles). Supporters and
abused women contacted Refuge to say how appalled they were by the
proposals.
Refuge responded to the draft sentencing guidelines through the Home
Affairs Committee.
The Home Affairs Committee responded to the draft guidelines.
Refuge responded to the Home Affairs report through a press release.
Although pleased that the perpetrators of domestic violence are unlikely to
receive a custodial sentence by showing adequate remorse, Refuge
expressed disappointment that, where a victim wishes to continue a
relationship with the perpetrator, this might reduce the perpetrator’s
sentence.
The Sentencing Guidelines Council produced a summary of responses to
the draft guidelines.
The Sentencing Guidelines Council produced its definitive guidelines.
1
At the same time, the Council issued a separate consultation on breach of non-molestation orders
2
Impact analysis
Overview
Refuge welcomed the Sentencing Guidelines Council’s review of sentencing guidelines with regard to domestic violence and broadly agreed with the proposals
set out in ‘Overarching Principles: Domestic Violence – Consultation Guideline’. However, there were some proposals with which Refuge had serious concerns.
Proposal
Assessing seriousness
Offences committed in a domestic context
should be regarded as being no less serious
than offences committed in a non-domestic
context.
Refuge’s response
Domestic violence should be considered
as more serious than one-off incidences of
violence perpetrated by a stranger.
Domestic violence is perpetrated over time
within the context of an intimate
relationship – it is a gross breach of trust.
Outcome
Offences committed in a domestic context Yes
should be regarded as being no less
serious than offences committed in a
domestic context. Indeed, because an
offence has been committed in a domestic
context, there are likely to be aggravating
factors present that make it more serious.
Aggravating factors
Where an abuse of trust or power is present, Refuge agrees that the abuse of trust and No change
it will aggravate the seriousness of the power should be aggravating factors.
offence.
Where a perpetrator has exploited a victim’s
vulnerability, an offence will warrant a higher
penalty (cultural, religious, language, financial
or any other reasons).
Refuge believes that all victims of
domestic violence are potentially
vulnerable but agrees that the cooccurrence of additional factors such as
those highlighted by the Council might
increase a victim’s vulnerability. Disability,
ill health and age are additional factors
which Refuge believes should be
aggravating factors.
Successful?
Age, disability or the fact that the victim
was pregnant or had recently given birth at
the time of the offence may make a victim
particularly vulnerable.
n/a
Yes
3
Exposure of children to an offence (either Refuge agrees that exposing children to No change
directly or indirectly) is an aggravating factor. domestic violence should be viewed as a
particularly aggravating factor. The courts
should be alert to the considerable overlap
between abuse of a woman and abuse of
her child by the same perpetrator. Courts
should also be alert to the risk women and
children face when they impose either a
custodial or non-custodial sentence on a
perpetrator. Risk assessment and ongoing safety monitoring is absolutely
crucial.
n/a
An offence will be aggravated where an Agree. This has the potential to negatively No change
offender exploits contact arrangements with a impact on the child as well as the
child in order to commit an offence.
residential parent. Refuge recommends a
thorough assessment before establishing
contact arrangements. Close monitoring of
physical and psychological safety should
be an integral part of any contact
arrangements. If abuse occurs during
contact, Refuge supports returning to court
to: reconsider the previous sentence; and
to reconsider arrangements for contact.
n/a
Where an offender has previously been
convicted of an offence involving domestic
violence either against the same or a different
partner, this is likely to be a statutory
aggravating factor.
n/a
It is positive that the Council has No change
recognised the negative effects that
cumulative abuse can have on victims.
Research indicates that women are
assaulted, on average, 35 times before
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calling the police. However there are often
few formal records to ‘prove’ that violence
occurred. Refuge hopes that proof on the
balance of probabilities will suffice in such
cases.
Where an offender breaches a court order, it Refuge agrees that disobedience with No change
will be an aggravating factor.
respect of court orders is an aggravating
factor.
n/a
An offence will be aggravated if, as a Refuge agrees that this should be viewed No change
consequence, the victim is forced to leave as an aggravating factor. If children must
home.
also move school to remain safe from
violence then Refuge believes this
should further aggravate the offence.
Mitigating factors
An offender’s good character in relation to Refuge agrees that an offender’s positive No change
conduct outside the home should generally be good character outside the home will be of
of no more than minor relevance where there little relevance in terms of mitigation.
is a proven pattern of behaviour.
Outstanding
issue
Positive good character is of greater Refuge is concerned about the Council’s
relevance where the court is satisfied that the suggestion about ‘isolated’ incidents.
offence was an isolated incident.
Single acts of violence are rarely isolated
incidents but represent the tip of the
iceberg. Research also shows that
violence escalates in frequency and
severity over time and that being hit once
is a strong indicator that more violence will
follow.
n/a
Positive good character is of greater
Yes
relevance in the rare case where the court
is satisfied that the offence was an isolated
incident.
5
A court is entitled to take into account
anything occurring within the relationship as a
whole, which may reveal aggravating or
mitigating factors. It may be asserted that the
offence, at least in part, has been provoked
by the conduct of the victim. Such assertions
need to be treated with great care.
Other factors influencing sentence
A sentence imposed for an offence of
violence should be determined by the
seriousness of the offence, not by the
expressed wishes of the victim. Nonetheless,
there may be circumstances in which the
court can properly mitigate a sentence to give
effect to the expressed wish of the victim that
the relationship be permitted to continue. The
court must, however, be confident that such a
wish is genuine and that giving effect to it will
not expose the victim to significant risk of
further violence.
Refuge is extremely concerned about
the Council’s suggestion that the
provocative conduct of the victim might
be presented as just mitigation in
relation to a domestic violence offence.
Denying responsibility and blaming the
victim is one of the main vehicles by
which
an
abuser
maintains
psychological power over the abused.
The criminal justice system should not
reinforce the negative messages of the
abuser and blame the victim for
provoking the violence she has
suffered.
For provocation to be a mitigating factor, it
will usually involve actual or anticipated
violence including psychological bullying.
Provocation is likely to have more of an
effect as mitigation if it has taken place
over a significant period of time.
The Council rightly states that it must be No change
confident that any wishes expressed by
the victim are genuine and presumably not
coerced. Refuge would suggest that one
must be convinced beyond doubt on the
basis of a thorough assessment of both
victim and perpetrator, that any reduction
in sentence is both appropriate and safe.
Refuge would go further and suggest that
any sentencing decisions should be
made solely on the basis of the offence
committed and not on the basis of
victim’s wishes.
Outstanding
issue
Outstanding
issue
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The interests of any children will be relevant
when considering whether to impose a
sentence that enables the continuation of the
relationship between the victim and the
offender. The court will wish to have regard to
the effect on the children if the relationship is
disrupted and, on the other hand, the likely
effect on the children of any further incidences
of domestic violence.
Refuge agrees that the interests of No change
children are extremely important,
particularly with regard to protecting them
and the non-abusing parent from further
harm. Refuge believes that direct
assessments with children, in order to
obtain their views and to explore the
potential impact domestic violence might
have on their attitudes, behaviour and
development is essential. Children must
not, however, be made to feel that they are
central to any decision made in relation to
their father. These decisions must be
made, purely on the offence committed,
without recourse to the views of the victim.
n/a
Factors to take into consideration
The following points of principles should be
considered by a court when imposing
sentence for any offence of violence
committed in domestic context:
1. Offences committed in a domestic violence context should be regarded as
being no less serious than offences
committed in a non-domestic context.
No change
n/a
2. Many offences of violence in a domestic context are dealt with in a magistrates’
No change
n/a
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court as an offence of common assault or
assault occasioning actual bodily harm
because the injuries sustained are
relatively minor. Offences involving
serious violence will warrant a custodial
sentence in the majority of cases.
3. Some offences will be specified offences for the purposes of the dangerous
offender
provisions.
In
such
circumstances, consideration will need to
be given to whether there is a serious risk
of serious harm to members of the public
which include, of course, family members.
If so, the court will be required to impose
a life sentence, imprisonment for public
protection or an extended sentence.
No change
n/a
4.
a. Where the custody threshold has been
passed and a short custodial sentence is
being considered, if the court is satisfied
that the offender genuinely intends to
reform his/her behaviour, and there is a
real prospect of behaviour being
successful, it may be appropriate to
impose a sentence that will allow the
offender to be rehabilitated.
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b. Examples of the circumstances that might
warrant this approach will include those
where:

The preservation of the relationship is an Refuge is most concerned by the
important consideration
Council’s proposals to divert an
offender from custody in these
circumstances.
Diversions
from
custody, downgrading of charges or
reductions in sentences based on the
relationship between the victim and
perpetrator are unacceptable and out of
step with the Government’s emphasis
on brining perpetrators to justice. If an
offence warrants a custodial sentence
then this should be imposed regardless
of the nature of the relationship after
the offence.
In many situations of domestic violence, Outstanding
the circumstances require the sentence to issue
demonstrate clearly that the conduct is
unacceptable. However there will be some
situations where all parties genuinely and
realistically wish the relationship to
continue as long as the violence stops. In
those situations, and where the violence is
towards the lower end of the scale of
seriousness, it is likely to be appropriate
for the court to impose a sentence that
provides the support necessary.

The offender shows genuine signs of Signs of remorse are common place
remorse and wishes to address his/her amongst domestic violence perpetrators,
behaviour
and indeed amongst many offenders who
are about to receive a custodial sentence.
Refuge strongly believes that signs of
remorse are grossly insufficient to warrant
reducing a custodial sentence to a
rehabilitation order. Refuge would urge
courts to always carry out a validated risk
assessment
of
the
offender’s
dangerousness and threat to the victim
Such an option will only be appropriate Yes
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.
Such a situation is unlikely to arise where
there has been a pattern of abuse.
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prior to imposing a sentence which allows
him to escape custody.
c. Rather than the imposition of a short
custodial sentence, an appropriate
disposal in such situations might be a
suspended sentence order or a
community order, in either case with a
requirement to attend a domestic violence
programme.
Refuge would recommend conducting a
thorough assessment of the offender’s
suitability for specialist domestic violence
intervention, including his motivation and
capacity to change, prior to proposing he
attend a perpetrator’s programme.
Where the custody threshold is only just Yes
crossed, so that if a custodial sentence is
imposed it will be a short sentence, the
court will wish to consider whether the
better option is a suspended sentence
order or a community order, including in
either case a requirement to attend an
Refuge also has concerns about the accredited domestic violence programme.
effectiveness of perpetrator programmes.
There is no evidence to suggest that these
programmes reduce violence in the long
term. Refuge welcomes recognition that
‘anger management’ courses are wholly
inappropriate for those involved in
‘instrumental violence’ on the grounds that
the courses ‘have the potential to equip
the offender with additional control
mechanisms and increase his./her
capacity to manipulate a situation to their
advantage and power’.
The provision of parallel programmes for
women and children, as well as strict
monitoring for safety should run in
conjunction with any programmes that
(despite our concerns) be developed for
perpetrators.
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d. In considering what sentence to impose,
the sentencer should take account of how
the offender has responded to pervious
sentences, particularly a community
sentence, or whether the offender has
completed
a
domestic
violence
programme.
Any further incidents of violence or non- compliance should occasion a return to
court with a strong likelihood that a
custodial sentence would then be
imposed.
n/a
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