A
Sentencer’s View
Sheriff A V Sheehan, Sheriff of Tayside, Central and Fife at
Falkirk
The
Procurator Fiscal is responsible for deciding whether criminal
proceedings should be taken in domestic violence cases and in
which court such cases should be prosecuted. The female victim,
the accused and the sentencer have no control over or even any
influence in, either of these decisions. Since the maximum
sentencing power of each court is prescribed by law, it
therefore follows that the maximum sentence available to the
sentencer depends on the choice of court by the prosecutor. In
practice, apart from extremely serious cases, most instances of
domestic violence are prosecuted in the Sheriff Summary court
where the maximum sentence is three months imprisonment unless
the offender has a previous conviction for assault, in which
case a second conviction for assault has a maximum sentence of
six months imprisonment.
Where
an offender is convicted in the Sheriff Summary court the first
relevant factor for the sentencer is to determine the facts of
the case. Where an accused has pleaded guilty, the prosecutor
will give a brief narrative of the facts and the accused's
solicitor will then make a plea in mitigation which often seeks
to minimise the offender's actions and the effect on the victim.
Where the offender has been convicted after trial, the court
will have heard all the evidence relating to the offence and in
particular, it will normally have heard the evidence of the
female victim who may, when confronted with the offender in the
dock, seek to minimise the incident, or who may say that she had
provoked the offender. The Sheriff will require to assess the
credibility and reliability of such evidence.
Having
determined the facts, the sentencer will then ascertain whether
the offender has been detained in custody awaiting either trial
or sentence, since time spent in custody on remand must be taken
into account when deciding sentence. In some instances, where a
custodial sentence is imposed, this might be backdated to the
date on which the offender was remanded.
The
next factor affecting sentence will be the accused's previous
convictions, if any. The amount of information disclosed by a
list of previous convictions is very limited in that they only
disclose the date and place of the conviction, a general
description of the offence, (e.g. assault) and the sentence
imposed. While the sentencer may therefore conclude that an
offender with several convictions for assault is a person of
violent tendencies, such convictions will not disclose whether
they relate to domestic violence. Moreover, many domestic
violence cases are prosecuted as a breach of the peace, but a
previous conviction for this offence will not disclose that it
relates to domestic violence. In brief, therefore, the
offender's list of previous convictions is of little help to the
sentencer who wishes to know whether the present offence is an
isolated incident, or whether it is the latest example of a
series of domestic violence offences.
However, while the above factors are relevant to sentence in
every case, Sheriffs are also accustomed to dealing with divorce
cases in the Civil Court (90% of all divorces are now taken in
the Sheriff Court) and in consequence most experienced Sheriffs
are well aware that the incidence of domestic violence far
exceeds the limited number of cases prosecuted in the criminal
court.
Because
of this knowledge and because the list of previous convictions
(if there are any) provides such restricted information, many
Sheriffs will exercise their discretion and request a Social
Enquiry Report before deciding what the appropriate sentence
should be. The usefulness of such a report will largely depend
on the social worker who compiled it and speaking personally
(other sentencers may take a different view), I find that the
most helpful reports will (a) state whether the offender has a
history of domestic violence either to the present victim or to
other women and (b) contain a Victim Impact Statement giving
some indication of the effect of the violence on the victim.
Both of these factors can have a very real impact on the choice
of sentence.
However, whether the sentencer is proceeding on the basis of
limited or detailed information, he is likely to be motivated by
various general considerations which can not include the views
of the victim as to what the appropriate sentence should be (HMA
v McKenzie 1989 SCCR 587). These considerations may include the
concepts of punishment, protection of the public (and in
particular the female victim), rehabilitation and, possibly,
deterrence (although, in my personal view the use of deterrent
sentences in domestic violence cases is of doubtful value).
The
sentencing options are as follows:-
1.
Imprisonment.
While a
lengthy sentence in an indictment case may punish the offender
and protect the public, the maximum sentence in most summary
cases is three months imprisonment and when account is taken of
remission, in effect this results in a sentence of six weeks
imprisonment. A sentence of such short duration is, of course,
still a punishment and it will afford the female victim a brief
window of opportunity to move elsewhere, if that is what she
wishes to do. On the other hand, since the court may be
constrained from imposing the maximum sentence in every case,
shorter sentences of 60 days (30 days with remission) or 30 days
(15 days with remission) are likely to prove less effective,
especially where such a sentence is backdated. Moreover, a
custodial sentence may give rise to other problems - for
example, it may cause the offender to lose his job and thus
deprive the victim and family of financial support. In some
instances a custodial sentence might even be counterproductive,
if on release, the offender becomes resentful or vengeful
towards the female whom he regards as responsible for his prison
sentence.
2.
Financial Penalties.
A fine
and/or a compensation order in favour of the victim may be an
appropriate sentence in some cases, but where the victim and
family are dependent on the offender for financial support, any
financial hardship occasioned by a financial penalty may fall
upon her. As has been said elsewhere, "First she gets beaten up
then her housekeeping gets reduced".
3.
Community Service.
This
sentence can be imposed as an alternative to custody and in this
respect it can be seen as a punishment. Whether it will protect
the victim or rehabilitate the offender is more open to question
- indeed a somewhat cynical female view might be, "I've been
trying to get to dig our garden for years and now the court has
ordered him to dig other people's gardens".
4.
Admonition, Absolute Discharge.
While
these sentencing options are available to the court, they are
generally inappropriate for domestic violence cases in the first
instance, although they may be more appropriate at the end of a
period of deferred sentence.
5.
Deferred Sentence: Probation.
These
two sentences are similar in many respects in that both allow
the court to impose conditions on the offender as to his future
behaviour. Probation has the advantage that the offender's
behaviour will (or should) be closely monitored and he can
quickly be brought back to court for any breach of probation.
The court has a very wide, almost limitless, discretion as to
the conditions to be applied. Apart from being of good
behaviour, the offender can be ordered to attend for alcohol or
drug counselling, or psychiatric or psychological treatment or
to participate in any project which is likely to increase his
awareness of the effect of his violent behaviour and prevent its
recurrence. The last mentioned option, if available, is likely
to be welcomed by most sentencers since it seeks to achieve the
twin aims of rehabilitating the offender and protecting the
victim by reducing the risk of further violence towards her.
The
effectiveness and credibility of such a sentence has been proved
by the Home Office which investigated the only projects
available in Scotland, namely the CHANGE Project (in the former
Central Region) and the Lothian Domestic Violence Probation
Project. According to Home Office Research Paper No 42, a
follow-up study based on questionnaires sent to the female
partners of men convicted of domestic violence showed that where
such men had not been placed on one of these Projects, some 75%
committed a further violent act against their partners within
twelve months of the original conviction, whereas for offenders
who had participated in one of the Projects, the corresponding
figure was 33%.
The
research concluded that "Well managed criminal justice based
projects such as CHANGE or Lothian Domestic Violence Probation
Project are more likely than other forms of criminal justice
interventions to reduce or eliminate violence and intimidating
behaviour".
What is
the way forward?
(1) If
the full extent of domestic violence in Scotland is to be
ascertained, it must be borne in mind that the Criminal Courts
reveal a very limited picture and a much broader perspective can
be obtained from matrimonial cases in the Civil Courts.
(2)
Since the power of the Criminal Courts to prevent domestic
violence or to protect the victims is very restricted, other
measures must be taken to educate the public and to provide
succour for the victims.
(3) It
would be helpful to those responsible for imposing sentences in
the Criminal Courts if detailed background information were
provided and if credible and well managed sentencing options
were available. Neither of these suggestions would require any
change in the existing legislation.
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