In February 2018 the Sentencing Council published a new guideline, ‘Overarching Principles: Domestic Abuse’ in response to various campaigns to address the sentencing of perpetrators of domestic abuse. The guideline will apply to offenders sentenced on or after May 24th 2018 and endeavours to give courts up to date guidance that emphasises the seriousness of the offending involved in domestic abuse. Its scope is not limited to intimate partners but encompasses abuse and the subsequent victimisation between family members or those in a domestic setting.
The new guidelines replace those of 2006, and reflect how our understanding of domestic abuse and what it entails has developed. Indeed, the revision of the term ‘Domestic Violence’ to ‘Domestic Abuse’ goes some way to demonstrate the change in understanding: abuse need not be physically violent to form an offence; abuse can be psychological, sexual, emotional or financial. The new guideline, alongside the relatively new offence of controlling and coercive behaviour, shows a change in attitude towards domestic abuse. A guideline addressing intimidatory offences such as harassment, stalking and disclosing private images is set to follow.
As our use of technology grows, the 2018 guideline includes reference to abuse perpetrated through email, text, social media or GPS tracking devices. This reflects the evolution of abuse through different platforms and the impact on the victim. Online abuse is now recognised as being as serious as that perpetrated offline and is often part of a pattern of controlling behaviour.
The guideline seeks to identify the principles relevant to the sentencing of cases involving domestic abuse. It outlines how seriousness should be assessed and highlights other factors to be taken into account. This contrasts with the 2006 guideline which stated that offences committed in a domestic context should be seen as no more serious than those in a non-domestic context. The new guideline emphasises that a domestic context makes an offence more serious to reflect the ongoing nature of domestic abuse and the abuse of trust within any familial or intimate relationship. Domestic abuse can constitute a singular incident but is more often a recurring pattern of incidents that become more serious and may result in death.
The following aggravating and mitigating factors are provided by the guideline:
Aggravating features leading to an increased sentence include (but not limited to)
– abuse of trust/ abuse of power
– victim is particularly vulnerable
– steps taken to prevent the victim from reporting the incident
– steps taken to prevent the victim from obtaining assistance
– victim forced to leave the home
– impact on children (by direct or indirect exposure to domestic abuse)
– using contact arrangements with a child to instigate an offence
– a proven history of violence or threats by the offender in a domestic context
Mitigating factors
– positive good character
– evidence of genuine recognition of the need for change and evidence of obtaining help or treatment
Victim Personal Statements are not provided regularly in domestic abuse cases. The guidance states that where there is no VPS the court should not take this as an indication of any lack of harm to the victim.
When all of this is taken into account together with the extensive list of aggravating features provided, it is likely that offenders will see an increase in their sentences. This is particularly relevant for offences involving serious violence or severe psychological or emotional harm where the custody threshold will be passed. Sufficient thought needs to be given to addressing the offender’s behaviour in order to prevent reoffending and further abuse, but also to protect victims and consider the interests of any children. It may be that this is best achieved through the imposition of community orders and other rehabilitative programmes as an alternative to a custodial sentence, allowing offenders to address their behaviour within a domestic context.