4. Memorandum submitted by Respect
C. AGGRAVATING AND MITIGATING FACTORS
AGGRAVATING FACTORS
(i) Abuse of trust and abuse of power (page
4)
— Agree that these should be aggravating
factors.
— Disagree that where the offender
and victim have been separated for a long period of time that
the issue of power is necessarily diminished.
(ii) Victim is particularly vulnerable (pages
4-5)
— Suggest 2nd paragraph is moved to
become first and then some of the vulnerabilities are listed.
— Include victims with disabilities,
and age as well as cultural, religious, language and financial
vulnerabilities and pregnancy.
(vi) Victims is forced to leave home (page
6)
— Suggest include forced to use sanctuary
scheme as well as forced to leave home.
MITIGATING FACTORS
(i) Positive good character (page 6)
— Agree that "one of the factors
that can allow domestic violence to continue unnoticed for lengthy
periods is the ability of the perpetrator to have two personae".
— Therefore public good character should
not be rewarded. It should be of no relevance (not "no more
than minor relevance").
— This should be for all offences including
what may appear an isolated incident but rarely is (particularly
as the definition being used includes a wide range of criminal
and sub-criminal behaviour).
— Pre-sentence report assessment of
future risk (and ongoing risks highlighted in the victim personal
statement) should be of much greater relevance than past public
positive good character.
(ii) History of the relationship (page 6)
— Agree that the court should "take
into account anything occurring within the relationship as a whole".
(iii) Provocation (page 6)
— The Sentencing Advisory Panel (SAP)
advice to the Sentencing Guidelines Council (SGC) is clearer than
what has been stated here.
— Suggest use SAP advice wording: "for
provocation to be a mitigating factor, it will need to 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".
D. OTHER FACTORS INFLUENCING SENTENCING
(i) Wishes of the victim and the effect of
the sentence (page 7)
— Suggest that a distinction needs
to be made between the interests of the victim and the wishes
of the victim. See Human Rights Act (HRA) distinction between
wishes and interests.
— Agree that the seriousness of the
offence should generally determine the sentence, not the wishes
of the victim—agree with all 3 bullet points.
— Suggest that a victim's interests,
but not wishes, should be taken into account—particularly
when related to future risk.
— Disagree strongly that a victim's
expressed wish for the relationship to continue should be a mitigating
factor. This should not be a factor for the court:
— There is no way of determining if
it is genuine and won't expose the victim to further risk.
— It takes no notice of risk posed
to other victims—children and future victims.
— Gondolf's[4]
research showed that repeat assault is more likely when couples
stay together. Apart from the immediate risk of separation and
in cases of ongoing stalking/harassment, victims are at greater
risk if they stay in a relationship—so a continuing relationship
should not be seen as a mitigating factor.
(ii) Interests of children (page 7)
— Courts should not be imposing sentences
with the aim of continuing the relationship between victim and
offender—this is not the role of the court!
— See above (i) wishes of the victim
and effect of sentence.
— Sentencers are not equipped to determine
what the best interests of the child are based on general guidance—this
is the job of the family courts and requires detailed and specialist
assessment.
— It is not appropriate to balance
the harm of a disrupted relationship with the harm of further
domestic violence—the Children Act views domestic violence
as "significant harm" and a child protection issue in
and of itself.
— The safety of the child should be
paramount.
E. FACTORS TO TAKE INTO CONSIDERATION
Paragraph 4(a)
— Respect disagrees that an
offender's expression of genuine remorse should have an impact
on sentencing and believe that this section needs to be changed.
— The court has no way of measuring
whether an offender's remorse is genuine. Indeed it is a feature
of domestic violence that perpetrators of domestic violence demonstrate
remorse. They should not be rewarded for something which is a
feature of their offending!
— Some perpetrators are genuinely remorseful
but remain high risk—it is the risk that needs to be the
priority in sentencing.
— If the offender knows that expressing
remorse will mean that he avoids custody, there is a huge incentive
to express remorse.
Paragraph 4(b)
— Respect strongly disagrees
that the preservation of the relationship and/or the demonstration
of genuine signs of remorse by the offender should result in a
non-custodial sentence when the custody threshold has been reached.
We are very concerned that these two issues have been highlighted
as the only reasons a non-custodial sentence might be considered—neither
are appropriate.
Paragraph 4(c)
— The sentencing of convicted offenders
has several functions:
— Reducing risk of future harm.
— Sentencing needs to take all of these
into account—Respect believes that the most important
of these is reducing future harm.
— Respect is not aware of any
research into the effect of different sentencing options in domestic
violence cases in the UK—so it is hard to predict whether
short custodial sentences have any impact on risk of future harm.
However, what we know about domestic violence (being about entrenched
patterns of behaviour based on power, control and entitlement)
tells us that a short custodial sentence on its own is unlikely
to bring about lasting change in a perpetrator and is therefore
unlikely to reduce the risk of future harm (to the victim, children
and future victims).
— However, when the custody threshold
has been reached, a custodial sentence should not be dismissed
(particularly as to have reached the custody threshold a serious
crime such as GBH or ABH is likely to have been committed). A
custodial sentence may well have a deterrent effect and gives
a clear message to the victim, perpetrator and the community that
domestic violence is taken seriously. It will also ensure that
justice is seen to be done and adequate punishment for the crime
is imposed.
— We would suggest a case by case basis
to sentencing.
— If an offender has both offered an
early guilty plea and shows willingness to participate in a perpetrator
programme it may be appropriate to impose a suspended order or
a community order, in either case with a requirement to attend
a domestic violence perpetrator programme.
— Pre-sentence report risk assessment
is key to determining whether such a sentence is appropriate.
— In cases where the custody threshold
has been reached, Respect would like to see exploration
of the use of Custody Plus or other such means by which justice/punishment
and rehabilitation/risk of future harm are addressed jointly—by
use of both custody and community rehabilitation orders.
— There should be clear guidance that
fines and bindovers are not appropriate sentencing options in
domestic violence cases.
Paragraph 4(d)
— If the perpetrator has previous convictions
for domestic violence (or other violence against women or children)
related offences and the custody threshold has been reached, then
a custodial sentence should always be imposed.
Jo Todd
Director
May 2006
4 Gondolf, E Batterer Intervention Systems
(2002).5. Memorandum submitted by Southall Black Sisters Back
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