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Click on each title below to read more about the cases under each section.

R v Hester [2007] VSCA 298 (29 November 2007)

R v Hester [2007] VSCA 298 (29 November 2007)

Victorian Court of Appeal: Neave JA
Keywords: domestic violence; victim impact statements

Summary

The appellant had been convicted on counts of false imprisonment and assault in circumstances amounting to domestic violence and sentenced to four years imprisonment with a non-parole period of three years.  The appellant was granted leave to appeal on the grounds that the sentence was manifestly excessive and that the trial judge had ignored the victim impact statements when sentencing the appellant.  The appeal was dismissed.

Feminist judgment

Neave JA noted that it was a common pattern for perpetrators of domestic violence to express penitence and persuade their victims to reconcile, that many victims were assaulted on several occasions before summoning the courage to leave an abusive relationship, and that they often required considerable support to do so. Therefore she urged that sentencing judges faced with a victim impact statement from a victim of domestic violence should give these matters considerable weight, and should treat evidence of forgiveness by a domestic violence victim “with extreme caution”.

R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22 (22 February 2008)

R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22 (22 February 2008)

Queensland District Court: Kingham J; Queensland Court of Appeal: Atkinson J
Keywords: mitigating factors; breastfeeding

Summary

The defendant pleaded guilty to unlawful wounding and breach of an intensive correction order (ICO) and was sentenced in the District Court on Mornington Island by Kingham J.  The defendant was initially sentenced to two and a half years imprisonment with a period of custody before being eligible for parole.  Counsel for the respondent submitted later on that same day that the respondent was still breastfeeding her child. Kingham J re-opened the sentence on the basis that there had been a “clear factual error of substance”.   The respondent would be unable to breastfeed her child while in custody.  Her Honour maintained the original sentence but allowed parole to commence from the day of the sentence.  The Attorney-General appealed against the sentence on the grounds it was manifestly inadequate and further submitted that it was beyond the power of the Court to re-sentence the respondent as the initial sentence had not been decided on a “clear factual error of substance” under s 188 (1)(c) of the Penalties and Sentences Act 1992 (Qld).  The Court dismissed the appeal.  

Feminist judgment

The trial judge (Kingham J) recognised breastfeeding of a small child as a substantial fact relevant to the sentencing outcome. On appeal, Justice Atkinson upheld the decision, considering that breastfeeding was a “relevant circumstance” and  recognising that the degree of hardship to the respondent’s children would be exceptional.  The sentence imposed was within the trial judge’s sentencing discretion.

R v RGG [2008] VSCA 94 (6 June 2008)

R v RGG [2008] VSCA 94 (6 June 2008)

Victorian Court of Appeal: Neave JA
Keywords: child sexual offences; mitigating factors

Summary

The defendant sought to appeal against his sentence for convictions pertaining to child sexual abuse on the ground that it was manifestly excessive.  The appeal was granted on the basis that the trial judge had failed to give sufficient weight to the defendant’s age and ill health as mitigating factors when sentencing.

Feminist judgment

All three judges agreed that the sentence imposed was manifestly excessive, but Neave JA did so in a way that avoided minimising the offences. She paid particular attention to the victims’ stories, for example noting that one of the victims suffered from epilepsy, and that the offending against her had continued for four years, with serious emotional and psychological consequences.

R v Khem [2008] VSCA 136 (17 August 2008)

R v Khem [2008] VSCA 136 (17 August 2008)

Victorian Court of Appeal: Neave JA
Keywords: rape; child sexual assault; sexually transmitted diseases; aggravating factors

Summary

The defendant pleaded guilty to attempted sexual penetration of a child under 16. He had done so without a condom, and there was a question as to whether this was a significant aggravating factor in sentencing given the lack of actual penetration.

Feminist judgment

In relation to this question, Neave JA said:

“If necessary, I would be prepared to take judicial notice of the fact that there is a risk that a number of sexually transmissible diseases, including genital herpes and genital warts, can be transmitted by genital contact falling short of penile penetration. There has been extensive community education on this issue.”

She added that the sentencing judge was entitled to give weight to the fact that the defendant:

“carelessly took the risk that intercourse, if completed, would expose the victim, a 14 year old girl, to the risk of pregnancy or infection. The fact that he did not have intercourse with the victim, either because he was unable to do so or because he was interrupted, does not alter his moral culpability for his irresponsible act of attempting to penetrate the victim without using a condom.”

R v Azizi [2010] VSC 112 (8 April 2010)

R v Azizi [2010] VSC 112 (8 April 2010)

Victorian Supreme Court: King J
Keywords: murder; domestic violence

Summary

Mr Azizi and his wife, Marzieh Rahimi came to Australia as refugees from the conflict in Afghanistan.  Two more children were born to the couple in Australia. Evidence suggested that it was an unhappy marriage, with Marzieh Rahimi complaining to her sister and various health professionals, with whom she had contact in Australia, that Mr Azizi had abused her throughout the course of their marriage.  Prior to her death, Marzieh Rahimi had indicated that she wished to attend English classes but Mr Azizi prevented her from doing so.  Mr Azizi claimed that the deceased had been violent to the children and had suffered from post-natal depression.  These claims were not substantiated. Mr Azizi did not deny killing his wife but submitted that he lacked the requisite intent and killed her accidently or in self-defence.  The jury found Mr Azizi guilty of the murder of his wife and King J sentenced him to a period of imprisonment of 17 years and six months.

Feminist judgment

In three sentencing decisions noted here (R v Azizi; R v Neacsu; R v Mulhall) King J seems to have explicitly taken on board the recommendations made by the Victorian Sentencing Council as outlined in their Provocation in Sentencing Report to acknowledge women's rights to equality when leaving a violent relationship. Against the defendant’s attempts to blame the victim, King J mobilises a counter-narrative that emphasises women's rights to equality by explicitly situating the killing in the context of separation and men's violence. King J doesn't afford any empathy to the defendants nor does she minimise the violence done to the deceased through her choice of language.

DPP v HPW [2011] VSCA 88 (5 April 2011)

DPP v HPW [2011] VSCA 88 (5 April 2011)

Victorian Court of Appeal: Tate and Neave JJA
Keywords: incest; indecent assault; mitigating factors; Aspergers Syndrome

Summary

The respondent pleaded guilty to five counts of incest and three counts of indecent acts with his daughter who was 11 years old at the time of the offending.  The sentencing judge recognised a causal relationship between the offending behaviour and the respondent’s Asperger’s Syndrome, such that the respondent mistakenly interpreted ‘behavioural cues’ of his young daughter.  The Crown sought to appeal against the sentence imposed on the respondent

Feminist judgment

The claims made by the offender in this case seek to place the blame for the incest on his 11 year old daughter and on his Asperger’s Syndrome. The judgments of Tate and Neave JAs emphasise the accountability and responsibility of the offender for his actions. Tate JA found that there was no causal connection between the Asperger’s Syndrome and the sexual offending. Neave JA agreed with Tate JA,  adding that  even if the defendant had misread ‘cues’ from his young daughter because of his Asperger’s Syndrome, she doubted whether this could be regarded as reducing his culpability for acts of incest or indecent assault. 

R v Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011)

R v Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011)

Queensland Court of Appeal: McMurdo P
Keywords: manifest inadequacy; domestic violence

Summary

The defendant pleaded guilty to seven charges of assault occasioning bodily harm, threatening violence at night, wounding, assault occasioning bodily harm while armed and four summary offences.  The complainant was the defendant’s de facto partner of 15 years. The offences were committed intermittently over a three year period.  The defendant was arrested when the complainant made a complaint to the police.  The police found the defendant to be in possession of weapons.  Subsequent domestic violence orders were made and were later breached by the defendant.  The trial judge imposed a sentence of six years’ imprisonment, suspended after 741 days.  The Attorney-General sought to appeal against the sentence on the basis that it was manifestly inadequate.  The Court allowed the appeal and a new sentence of ten years’ imprisonment, suspended after 741 days, and three years’ probation was imposed. 

Feminist judgment

McMurdo P’s sentencing decision clearly documents the “dreadful effects” of prolonged domestic violence which she describes as “notorious” and which extend beyond the physical injuries to depression, anxiety, alienation, behaviour problems in children and reduced financial position.

R v Neacsu [2012] VSC 388 (4 September 2012)

R v Neacsu [2012] VSC 388 (4 September 2012)

Victorian Supreme Court: King J
Keywords: murder; sexual jealousy

Summary

Marin Neacsu was found guilty of murdering his estranged wife’s partner, Ionel Coca.  Mr Coca had previously resided with Mr Neacsu and his wife, Dida Neacsu, on arriving in Australia from Romania.  During this period of co-habitation, Mr Coca and Mrs Neacsu fell in love.  Mr Neacsu became aware of the infatuation and asked the deceased to find other accommodation.  One month after Mr Coca moved out, Mrs Neacsu left her husband and moved in with the deceased, although she claimed to be living with an old Romanian woman from her church. The facts were not clear as to whether Mr Neacsu was aware of the reality of his estranged wife’s living circumstances.  A period of time passed in which Mr Neacsu attempted to beg his wife to return to their house.  Mrs Neacsu would come to the house every day in order to perform domestic duties in addition to gradually removing her possessions.  On one of these occasions, the couple had an argument and Mr Neacsu threatened his wife with a knife and forced her to take him to her new residence.  On arriving at the deceased’s flat, Mr Neacsu proceeded to stab the deceased 16 times.  King J rejected the defendant’s submission that the deceased had been the initial aggressor and sentenced Mr Neacsu to 17 years and six months imprisonment.

Feminist judgment

In three sentencing decisions noted here (R v Azizi; R v Neacsu; R v Mulhall) King J seems to have explicitly taken on board the recommendations made by the Victorian Sentencing Council as outlined in their Provocation in Sentencing Report to acknowledge women's rights to equality when leaving a violent relationship. Against the defendant’s attempts to blame the victim, King J mobilises a counter-narrative that emphasises women's rights to equality by explicitly situating the killing in the context of separation and men's violence. King J doesn't afford any empathy to the defendants nor does she minimise the violence done to the deceased through her choice of language.

R v Mulhall [2012] VSC 471 (10 October 2012)

R v Mulhall [2012] VSC 471 (10 October 2012)

Victorian Supreme Court: King J
Keywords: murder; drug and alcohol consumption; intervention order

Summary

The defendant pleaded guilty to the murder of Joy Rowley.  The defendant and the deceased had been in an intimate relationship.  Three months into this relationship, the defendant was charged with assault to the deceased and an intervention order was made.  The defendant breached this order and re-established his relationship with the deceased at an unknown time.  On the day of the deceased’s death, the couple went to a hotel and consumed alcohol and cannabis.  The couple had an altercation and the defendant proceeded to strangle and then smother the deceased.  The next morning, the defendant withdrew money from the deceased’s bank account, which he used to gamble, had social contact with the deceased’s family and returned to the hotel.  Similar activities were performed by the defendant the following day.  He did not report her death for four days.  The defendant entered a plea of guilty in the Magistrates’ Court.  King J sentenced the defendant to imprisonment for a minimum of 16 years without parole.

Feminist judgment

In three sentencing decisions noted here (R v Azizi; R v Neacsu; R v Mulhall) King J seems to have explicitly taken on board the recommendations made by the Victorian Sentencing Council as outlined in their Provocation in Sentencing Report to acknowledge women's rights to equality when leaving a violent relationship. Against the defendant’s attempts to blame the victim, King J mobilises a counter-narrative that emphasises women's rights to equality by explicitly situating the killing in the context of separation and men's violence. King J doesn't afford any empathy to the defendants nor does she minimise the violence done to the deceased through her choice of language.

R v Gittany (no 5) [2014] NSWSC 49 (6 February 2014)

R v Gittany (no 5) [2014] NSWSC 49 (6 February 2014)

New South Wales Supreme Court: McCallum J
Keywords: murder; domestic violence

Summary

After a trial by judge-alone, Simon Gittany was found guilty of the murder of his defacto partner, Lisa Harnum.  He was sentenced to a term of imprisonment with a non-parole period of 18 years. Shortly before she died Harnum had decided to leave Gittany and had packed a bag which she left with her personal trainer. Through reading her text messages Gittany discovered her plan and confronted her. Later the couple agreed to separate. However when she attempted to leave Gittany restrained her, she was heard to call for help from a neighbour, but shortly after that she was thrown, unconscious, from the balcony railing of the couple’s 15th floor apartment. Gittany attempted to portray Harnum’s death as a suicide.

Feminist judgment

In her sentencing judgment McCallum J paints a complex picture of the cycle of domestic violence. The judge accepted that although sometimes Gittany was a loving partner towards Harnum, he was also controlling, domineering and sometimes abusive towards her. She notes that his behaviour met ‘mixed resistance’ from Harnum and she draws attention to the manipulative behaviors practiced by Gittany which were directed to removing Harnum’s personal autonomy. McCallum J observes that  Harnum’s ‘small acts of defiance’ such as daring to wear her hair down, resulted in significant abuse. Finally the judge notes that Gittany’s intention to kill ‘was facilitated by a sense of ownership and a lack of any true respect for the autonomy of the woman he claimed to love...’ [40].

R v Williams [2014] VSC 304 (27 June 2014)

R v Williams [2014] VSC 304 (27 June 2014)

Victorian Supreme Court: Hollingworth J
Keywords: defensive homicide; domestic violence

Summary

The defendant, Angela Williams, was charged with the murder of her partner, Douglas Kally. After a jury trial she was found not guilty of murder but guilty of the alternative offence of defensive homicide. The couple had been in a relationship for 23 years and had two children. Over a long period of time Kally had been violent to Williams and the couple’s two children. The trial judge, Justice Hollingworth, imposed a sentence of 8 years with a non-parole period of 5 years.

Feminist judgment

Hollingworth J’s sentencing judgment reflects a broad understanding of the nature of domestic violence including that it is belittling and controlling; that discrete acts form a pattern of abuse that may seem minor if looked at in isolation; that the defendant had few friends and was isolated as a result of the violence and that Williams’ failure to complain to police or others about the violence during the relationship is not uncommon in family violence cases and that friends and family may not be aware of on-going violence as it often happens behind closed doors.