Family Violence Lawyers Melbourne: Plea of Guilty to Family Violence Charges — Sentencing and What to Expect
The majority of family violence criminal charges in Victoria that proceed past the investigation stage are ultimately resolved by a plea of guilty rather than a contested hearing. Entering a plea of guilty in a family violence matter does not mean the outcome is predetermined: the sentencing hearing that follows a guilty plea is where a family violence lawyer in Melbourne has the most direct influence on the outcome. The preparation of the plea in mitigation, the expert and character material presented to the court, and the quality of the advocacy at the sentencing hearing all materially affect the sentence imposed. This article explains what sentencing in a family violence matter involves and how a family violence lawyer approaches the plea of guilty process.
This is general information only and does not constitute legal advice.
Sentencing in Family Violence Matters
What sentencing options are available for family violence criminal charges?
The sentencing options available for family violence criminal charges in Victoria depend on the specific offence and its maximum penalty. For the most serious charges, including intentionally or recklessly causing serious injury and aggravated assault in a family violence context, imprisonment is a common outcome. For less serious assault and breach of intervention order charges, community corrections orders, fines, and diversion are available in appropriate cases. The Sentencing Act 1991 (Vic) requires the court to consider a range of sentencing purposes including punishment, deterrence, rehabilitation, and community protection, and the sentencing outcome in any family violence matter reflects the weight the court gives to each of those purposes on the specific facts.
How does the family violence context affect sentencing?
The Sentencing Act 1991 (Vic) includes family violence as an express aggravating factor that the court must take into account when sentencing for offences committed in the context of family violence. Where the offence was committed against a family member, the court treats the breach of trust and the impact on the complainant and any children as relevant to the gravity of the offending. A family violence lawyer in Melbourne presenting a plea in mitigation addresses the aggravating effect of the family violence context directly and presents the circumstances that reduce the weight of those aggravating factors in the specific case.
Does pleading guilty early make a difference to the sentence?
Yes. The Sentencing Act 1991 (Vic) requires the court to take into account a timely plea of guilty as a mitigating factor in sentencing. A plea entered early in the proceedings, before the matter has consumed court time and required the complainant to prepare for a contested hearing, is given more weight than a plea entered on the day of trial. A family violence lawyer in Melbourne advises on the timing of any guilty plea and on the discount that the timing is likely to attract in the specific court, so the client can make an informed decision about whether and when to enter the plea.
Preparing the Plea in Mitigation
What goes into a well-prepared plea in mitigation in a family violence matter?
A well-prepared plea in mitigation in a family violence criminal matter includes a written sentencing submissions document addressing the sentencing purposes, the circumstances of the offending and the mitigating factors, the offender's personal history and current circumstances, the steps taken since the offending to address the behaviour including completion of family violence programmes, expert evidence such as a psychological report addressing the causes of the behaviour and the prognosis for rehabilitation, and character references from persons who can speak to the offender's qualities and to the changes in their behaviour since the offending. A family violence lawyer in Melbourne prepares all of this material well in advance of the sentencing hearing.
What is a Fitzroy Legal Service report and when is it used?
A Corrections Victoria pre-sentence report, sometimes referred to by reference to the community corrections officer who prepares it, is a report ordered by the court on the background and circumstances of the offender and on the suitability of the offender for various sentencing options including community corrections orders. In family violence matters where a community corrections order is a realistic sentencing option, the pre-sentence report is an important document that the sentencing court relies on in deciding whether to impose a custodial or non-custodial sentence. A family violence lawyer in Melbourne advises the client on how to engage with the pre-sentence report process and ensures the report accurately reflects the client's circumstances.
What is a Cognitive Behavioural Intervention programme and how does it affect sentencing?
Cognitive Behavioural Intervention programmes, including the Men's Behaviour Change Programme, are programmes specifically designed to address the behaviours underlying family violence. Evidence that an offender has completed or is engaged in such a programme at the time of sentencing is relevant to the rehabilitation purpose of sentencing and to the court's assessment of the risk of reoffending. A family violence lawyer in Melbourne advises clients on the availability of these programmes and on the timing of enrolment, so that engagement with the programme can be presented at the sentencing hearing as evidence of genuine commitment to change.
Specific Sentencing Considerations
How does the court assess the impact on the complainant?
The impact of the offending on the complainant is assessed through a victim impact statement, which the complainant may choose to provide to the court before sentencing. A family violence lawyer in Melbourne cannot prevent a complainant from providing a victim impact statement, but can address its contents in the plea in mitigation by presenting evidence about the offender's remorse and the steps taken to address the harm caused. Where the victim impact statement contains factual errors or overstates the impact attributable to the specific offending, the family violence lawyer may address those aspects in sentencing submissions, with care to do so without challenging the complainant's right to have their experience acknowledged by the court.
What happens if there is a concurrent intervention order proceeding?
Where a family violence intervention order proceeding is running alongside the criminal charge, a plea of guilty to the criminal charge does not automatically resolve the intervention order matter. The intervention order proceeds in the Magistrates Court as a separate matter and requires separate management. In some cases, a plea of guilty to the criminal charge will inform the intervention order proceeding in a way that makes a contested hearing unnecessary, but this depends on the specific charges and the terms of any proposed final order. A family violence lawyer in Melbourne manages both the sentencing process and the intervention order proceeding in a coordinated way.
Can a family violence offence be diverted rather than sentenced?
Diversion from conviction for family violence charges is available in limited circumstances in the Magistrates Court under the Criminal Procedure Act 2009 (Vic). Diversion is not available for all family violence charges and is assessed by the court on the eligibility criteria set out in the Act, including the nature of the offending and whether the accused accepts responsibility. A family violence lawyer in Melbourne advises on whether diversion is available in the specific matter, how the diversion application is made, and what the conditions of a diversion plan are likely to include. A successful diversion means no conviction is recorded, which is a significantly better outcome than any sentencing result.
What to Expect at the Sentencing Hearing
How is the sentencing hearing conducted in a family violence matter?
At the sentencing hearing following a plea of guilty in a family violence matter, the prosecutor reads the summary of the offending to the court and presents any victim impact material. The family violence lawyer for the accused then presents the plea in mitigation, including reading or tendering the sentencing submissions, tendering the expert reports and character references, and making oral submissions to the court on the appropriate sentence. The accused may also be invited to speak briefly to the court about their remorse and their intentions going forward. The magistrate or judge then delivers the sentence, which may be delivered on the day or reserved to a later date.
What sentences are imposed for family violence assault charges?
Sentencing outcomes for family violence assault charges in Victoria vary widely depending on the nature and gravity of the assault, the number of counts, the prior offending history of the accused, and the quality of the plea in mitigation presented. At the less serious end, fines and community corrections orders are available. More serious assaults, and assaults accompanied by a significant prior history, carry a real risk of immediate imprisonment. A family violence lawyer in Melbourne advises on the realistic sentencing range for the specific charges having regard to comparable cases, so the client can enter the sentencing hearing with a realistic understanding of the possible outcomes.
Can a sentence be appealed?
Yes. A sentence imposed following a plea of guilty in the Magistrates Court can be appealed to the County Court, which hears the appeal as a fresh sentencing hearing. An appeal from the County Court goes to the Court of Appeal on a question of law or, in limited circumstances, on a sentence appeal. A family violence lawyer in Melbourne advises on the prospects of a sentence appeal after any sentencing result, including the grounds available and the likely outcome of the appeal process. An appeal that has reasonable prospects of resulting in a lesser sentence is worth pursuing; an appeal without a viable ground risks a worse outcome and should not be filed.
Selection of Counsel
What should I look for in a family violence lawyer for a sentencing hearing?
A family violence lawyer in Melbourne who is effective at the sentencing stage understands the sentencing framework under the Sentencing Act 1991 (Vic), has experience preparing and presenting sentencing submissions and expert material in family violence matters, is familiar with the sentencing patterns of the court in which the matter is being heard, and can present the accused's mitigation in the most persuasive way available on the facts. Sentencing advocacy is a distinct skill from trial advocacy and requires specific experience in the preparation and presentation of mitigating material at the sentencing level.
When should I engage a family violence lawyer if I am considering a guilty plea?
As early as possible, and before any decision to enter a plea is made. The timing of a guilty plea, the preparation of the supporting material, and the coordination of the plea with any concurrent intervention order proceedings all require planning that takes time. A family violence lawyer in Melbourne who is engaged well before the sentencing hearing can ensure that the plea is entered at the optimal time, that all supporting material is properly prepared and filed, and that the sentencing hearing is conducted in the most effective way available on the facts of the matter.
Can the same family violence lawyer handle both the criminal charge and the intervention order?
Yes, and there are significant practical advantages to having a single family violence lawyer in Melbourne manage both the criminal charge and any concurrent intervention order proceeding. The sentencing outcome in the criminal matter, the terms of any intervention order that follows, and any interaction with family law proceedings all need to be considered as a coordinated whole. A family violence lawyer who manages all three tracks ensures that the approach taken in each is consistent and that the best overall outcome, not just the best criminal outcome in isolation, is what is pursued throughout.
If you are facing family violence criminal charges in Melbourne, including at the sentencing stage and are looking for experienced criminal defence representation in Melbourne, Doogue + George Defence Lawyers is among the firms with senior practitioners active in this area. Engaging a criminal defence lawyer at the earliest stage of any investigation, before any police interview or formal step in the proceeding, is the decision that most consistently affects what options remain available. |
