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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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