Written by Andrew Tiedt
Published under Law Reform
October 24, 2013
There has long been a simmering controversy in the Court of Criminal Appeal about the way in which offenders who commit domestic violence in their own home should be treated.
Section 21A of the Crimes (Sentencing Procedure) Act lists a number of factors that can make an offence more or less serious. These are general factors that are designed to be as broad as possible and assist a Court in working out how serious an offence is.
One of the factors that is listed as an aggravating feature is that the offence occurred in the victim’s home. This is designed to recognize the fact that a person is entitled to feel safe in their home and any offence that occurs against them there (for example, a rape or a violent robbery) should, all things being equal, be regarded as more serious when it occurs at victim’s home.
This led to difficult legal questions where the residence in question was also the home of the offender. The most common example is what are usually termed “domestic violence offences”. Obviously, if a Husband assaults a Wife in their own home the offence is occurring in the victim’s home AND the offender’s home – but is this the sort of conduct that the law is aimed at?
When the law was introduced the Attorney General indicated that, in domestic violence offences, the matter should usually still be aggravated by the fact that the offence occurred in the victim’s home.
Notwithstanding this, the courts have for some reason being slow to apply the law in that way, rather finding usually that it would be inappropriate to regard this factor as aggravating an offence.
Two new cases where the Court of Criminal Appeal have recently called this view into question are the cases of Melbom and Montaro.
In both these cases, a Judge was sentencing the offenders for offences that occurred in the victim and the offender’s home, and applying the relevant law regarded the location as being an aggravating feature.
Both offenders appealed to the Court of Criminal Appeal claiming that this was incorrect (notwithstanding section 21A) and pointing to a number of cases consistent with this proposition.
The court made comments that suggested that the previous position on this issue is in fact incorrect. In the matter of Melbom, the court went so far as to say that “it is perhaps, time for a re-examination by this court of those previous decisions”.
It will be interesting going forward to see how the Court of Criminal Appeal deals with matters such as these and whether a case has to go to the High Court before the issue can be finally resolved.