The Sentencing Council have released a definitive guideline for dealing with matters involving domestic abuse. A copy of the guideline can be found here:SC_Domestic_Abuse_Paper. Whilst the guideline is not due to come into force until May, it can be expected that Courts will begin to follow the guideline from today. It is therefore essential reading for all advocates.
There are a number of important points to consider:
1. There is a real risk of much more severe sentences being imposed for offences within the scope of the guideline. Currently offences within a domestic context are already considered an aggravating feature so advocates will need to be careful to address this in their mitigation.
2. If the matter involves serious violence or severe psychological or emotional harm then the matter WILL pass the custody threshold. It therefore appears that harm alone will put this matter into category one for sentencing matters of domestic violence irrespective of culpability.
3. However the guideline does state that whilst the custody threshold has been passed the Court should still consider whether a community order with a rehabilitative element would be more appropriate to try address the offenders behaviour within a domestic context.
4. The Court should also consider the interests of the children and the impact of any sentence on those children. This could be important mitigation in many cases we deal with.
5. The guideline also states that provocation is NOT a mitigating factor when dealing with cases of domestic abuse save for exceptional circumstances.
6. Advocates should also be cautious when dealing with restraining orders. The guideline appears to contradict recent case law in that the complainant’s view should be sought, ‘but their consent is not required.’