Judicial Narratives and ‘Reality’: A Thematic Analysis of References to Family Violence in Sentencing Remarks for the Offence of Threat to Kill

Abstract

For domestic and family violence (‘DFV’) offences, sentencing remarks present a unique opportunity for dialogue between the Court, the offender, the victim-survivor, and the public. At the point of sentencing an offender, the judicial officer provides a rationale for the sentence imposed. This rationale includes a consideration of the impact of the offending on the victim, but can also carry narratives about the harms, dynamics, and outcomes of DFV offences. This article seeks to evaluate the narratives present within sentencing remarks for the offence of threat to kill occurring in a DFV context in the Australian jurisdictions of the Australian Capital Territory and Victoria. The authors use thematic analysis to compare themes generated within the judgments to the sentencing considerations required by the Crimes (Sentencing) Act 2005 (ACT) and the Sentencing Act 1991 (Vic). Our findings support the idea that if required to refer to the nature and dynamics of DFV in sentencing offenders, judicial officers’ understanding of DFV may be improved. We therefore suggest such requirements could potentially play a similar role in other jurisdictions.

1. Introduction

Previous literature has highlighted the ties within the criminal justice system between language, cognition, cultural and societal beliefs, and gender (See for example Easteal et al. 2012, p. 324). Law is intrinsically connected with language. From the macro level, ‘the greater part of … legal processes is realised primarily through language’ (Maley 2014, p. 11) with legal stories or narratives permeating both societal and legal discourse surrounding domestic and family violence (‘DFV’).

Accordingly, ‘[w]hat matters most, in the law, is how the “narratees” or listeners–juries, judges–hear and construct the story’ (Brooks 2005, p. 424). Responsibility for DFV can be obscured and deflected, simultaneously positioning the perpetrator as the victim and silencing the victim-survivor (See Towns and Adams 2016). Prior research has observed that the judicial system remains permeated by ‘Anglo, male, able-bodied, heterosexual values and views’ where there are frequent failures to recognise the harm and seriousness of emotional and psychological abuse and coercive control towards victim-survivors (Easteal et al. 2019, p. 11).

Using thematic analysis of sentencing remarks for the offence of threat to kill in two jurisdictions of Australia—the Australian Capital Territory (‘ACT’) and Victoria—our primary aim in this study is to see if the judicial narrative surrounding DFV is conveying a nuanced understanding of victim-survivors’ realities of the violence that includes the harm and seriousness of non-physical DFV, or if responsibility for DFV continues to be obscured and/or deflected onto its victims (Hunter 2006, p. 733; Towns and Adams 2016). The offence of threat to kill is apt for such an analysis as it can involve immediate and serious psychological harm, and within a DFV context, affect the victim’s autonomy. In addition, this particular offence has high rates of reoffending and frequently occurs within the context of DFV (Victorian Sentencing Advisory Council 2021, pp. 49–50).

As judicial officers are required to consider certain criteria set out in the relevant legislation (discussed next), this enables us to pursue a secondary aim of considering the results in relation to the context of sentencing legislation in Victoria and the ACT and changes in the latter, to identify any consequential implications for other jurisdictions.

2. Background

2.1. About the Offence and Legislation

The rationale for the criminalisation of the offence of threat to kill fits within broader statements about DFV offending. As the plurality of the High Court considered in The Queen v Kilic, DFV offences ‘involve the abuse of a relationship of trust which such an offence necessarily entails and which … must steadfastly be deterred’.1

The offence of threat to kill has been enacted in several Australian jurisdictions including the two we are examining: the ACT and Victoria.2 The offence of threat to kill as it currently exists in the Crimes Act 1900 (ACT) was inserted by an amendment to the legislation in 1990.3 The explanatory statement provided that ‘[i]t is a new provision replacing the former section 31 which is narrowly confined to threats in written form’ and ‘[t]he new provision covers threats in any form’.4 This broadened and extended the offence of letters threatening to murder contained within the original version of the Act,5 which became an enactment of the ACT when self-government was established.6

Similarly, in Victoria, the offence of threat to kill as it currently exists was inserted into the Crimes Act 1958 (Vic) by s 8 of the Crimes (Amendment) Act 1985 (Vic).7 The explanatory memorandum to the Bill which became the Act provided that ‘[t]he current provision covers only threats to kill delivered by post’ but that ‘[t]hreats to kill should be criminal, though delivered’.8 Both the ACT and Victorian offence provisions have remained almost identical since their insertion into the legislation, with the notable exception of the maximum penalties.9

This study applies the methodology of thematic analysis to relatively rigid and formulaic content matter. Simply, Victorian judges must sentence according to considerations in s 5(2) of the Sentencing Act 1991 (Vic) while ACT judicial officers need to consider the relevant considerations in s 33 of the Crimes (Sentencing) Act 2005 (ACT) to achieve the purposes of sentencing.10 Both jurisdictions’ sentencing legislation provides that one of the purposes of sentencing is the denunciation of the offender’s conduct.11 What can be conceptualised as mitigating and aggravating factors fit within the mandatory considerations of the Court.12 These are closely examined in the Discussion section of the article.

In relation to sentencing DFV offenders, legislation has not remained static. Indeed, responding to DFV is rightly an important focus for the legislature and thus, an ever-evolving area of law.13 For the offence of threat to kill, whilst the elements of the offence remained the same over the 10 years leading up to our study, some of the ways in which offenders are sentenced for family violence offences in the ACT did change. In 2021, s 34B of the Crimes (Sentencing) Act 2005 (ACT) was inserted requiring the court to consider ‘the nature of family violence and the context of the offending’ if the matter included a DFV offence.14 The court is also directed to the preamble of the Family Violence Act 2016 (ACT).15 This section was inserted following the decision of the ACT Court of Appeal in R v UG where the plurality of the Court held that ‘[a]bsent any statutory provision to the contrary, in a criminal justice system based on individualised justice, there is no place for a separate sentencing regime that applies to offenders who commit “family violence offences”’.16

No equivalent provision has been added to the Sentencing Act 1991 (Vic).

2.2. More About Sentencing Narratives

Sentencing narratives are a distinct form of legal language with the judge acting as the ‘“official” narrator’ (Campos Pardillos 2020, p. 30). At the point of sentencing the offender, the purpose of sentencing remarks is to ‘explain the sentence that is imposed on the offender’ (Hunn et al. 2018, p. 814). There must be sufficient reasoning behind the imposition of the sentence involving a ‘whole argumentative process, the starting point of which is to establish a “narrative” of the facts and the trial’ (Campos Pardillos 2020, p. 30). In this sense, narratives are interwoven within sentencing remarks.

Forming a judgment requires a set of choices that ‘fashions the narrative presented in the judgment, dictates its character, and leads directly to the judicial determination’ (Almog 2001, p. 478). The judge provides the final version of events, ‘albeit with his or her own value judgments that may colour the facts and justify the punishment imposed’ (Campos Pardillos 2020, p. 30).

While prosecutors or defendants in criminal proceedings use narrative to persuade the court of their position, ‘the story that judges choose to tell in the judgment is carefully controlled and constructed’ (Almog 2001, p. 477). The process of sentencing an offender is complex and requires multifaceted and often competing considerations with judicial officer’s intuition playing a role too:

The nature of sentencing calibrations is so obscure that sentencing has been described as a jurisprudential wasteland, where judicial intuition remains the guiding determinant.

(Bagaric 2014, p. 503)

Therefore, the analysis of judgments requires acknowledgement of their unique characteristics (Mitchell 2023, pp. 107–8). Judges pronounce and produce an outcome such as a sentence for an offender, justifying that outcome and following a particular pattern (Mitchell 2023, p. 109). Additionally, judgments come, not only from the individual judge who is giving the judgment, but the court as an institution, where judgments are created in response to submissions given by counsel and evidence from parties and witnesses (Mitchell 2023, p. 109).

2.2.1. Sentencing Stories in the DFV Space

Prior research into sentencing remarks in the context of DFV offending has shown that false narratives can be told within the courtroom. For example, an analysis of Queensland District Court decisions for breaches of domestic violence orders found that distinctions were made between different types of DFV offending and their seriousness (Easteal et al. 2019, pp. 13–14). Conceptualisations of the ‘gradation of harm’ differed depending upon whether the individual judge understood the effects of non-physical DFV effects on survivors (Easteal et al. 2019, pp. 11–14, 16).

Judicial misconstruction of the harms experienced by the victims may be contributed to by the language that they use to describe DFV (See Easteal et al. 2012, pp. 328–30). For instance, in one 2006 New South Wales Supreme Court sentencing decision for a woman who pled guilty to manslaughter against her former partner, the judicial officer stated that ‘[n]ot even extreme domestic discord can ever be an excuse for the victim to take the law into her own hands’.17 Describing DFV in terms of ‘domestic discord’ clearly minimises its seriousness and perceived harm.

Accordingly, it has been argued that Courts need to ‘walk in the shoes’ of victim-survivors—understanding for example that the reasonableness test for self-defence in relation to statutory defences for homicide requires ‘an appreciation of the [victim survivor’s] “reality”’ (Hopkins and Easteal 2010, p. 132).

3. Approach

3.1. Data Collection

The sentencing decisions were identified using the Australasian Legal Information Institute (‘AustLII’) database and the Supreme Court of the ACT and the County Court of Victoria websites. Boolean search terms were used, involving sequences of ‘“threat to kill” AND “domestic violence”’, and ‘“threat to kill” AND “family violence.”’ We considered the concept of information power (Malterud et al. 2016), identifying 50 first-instance judgments handed down between June 2014 and February 2024 with nine from the Supreme Court of the ACT and 41 from the Victorian County Court.18 In all cases except one, the offender was male and the victim-survivor female.

3.2. Data Analysis

The process of reflexive thematic analysis provides specificity and a framework through which to analyse the data (see Braun and Clarke 2006, p. 77). We followed methodological suggestions from the literature, including conducting the analysis within a qualitative analysis program (Nowell et al. 2017, p. 7).19 Neither the type of sentence imposed by the Court nor the sentence length were included in our data collection. This is because the purpose of the study was to analyse the sentencing remarks to identify themes, and almost all offenders were being sentenced for multiple offences.

Whilst thematic analysis can be understood as a category of qualitative analytic methods not bound to a particular theoretical framework (Braun and Clarke 2006, p. 78), reflexive thematic analysis is a specific approach where themes are developed from the initial coding of the data (Braun and Clarke 2021, pp. 38–39). However, this specificity is by no means prescriptive about the result of the analysis. Instead, within the process of reflexive thematic analysis, ‘[c]odes are understood to represent the researcher’s interpretations of patterns of meaning across the dataset’ (Byrne 2022, p. 1393). The aim of this flexible analysis is to ‘achieve richer interpretations of meaning, rather than attempting to achieve consensus of meaning’ (Byrne 2022, p. 1393).

3.2.1. Stages of Reflexive Thematic Analysis20

First, we became familiar with the data by carefully reading through the decisions, and making comments within the documents (Byrne 2022, p. 1398). For guidance, two broad questions were formulated: what are the remarks saying to the offender and what are they saying to the victim-survivor?

Next, we generated initial codes. Within reflexive thematic analysis, codes are distinguishable from themes and are ‘succinct, shorthand descriptive or interpretive labels for pieces of information that may be of relevance to the research question(s)’ (Byrne 2022, p. 1399). The generation of 118 codes was guided by stage one comments and informed by prior literature.

Codes were grouped into themes; for example, ‘attitudes,’ which encompassed codes of ‘community protection’, ‘general deterrence’, ‘cowardice of offender’s conduct’, and ‘community attitudes towards DFV’. These initial themes were subject to revision to align with our research focus. For instance, the scope of a broad theme such as ‘offender’ was narrowed to specifically encapsulate discussions of culpability within the resultant theme of contributions to offenders’ behaviour. In this way, themes could be analysed within the framework of the research.

3.3. Methodological Limitations

Ideally, methodological rigour should be considered at each stage of the reflexive thematic analysis process (Nowell et al. 2017, p. 4). We note though that the scope of the current research meant that not every suggestion for ensuring methodological rigour could be incorporated into the methodology (Nowell et al. 2017, p. 1).

As outlined by Braun and Clarke in their seminal paper, ‘a simple thematic analysis does not allow the researcher to make claims about language use, or the fine-grained functionality of talk’ (Braun and Clarke 2006, p. 97). And, while thematic analysis has the advantage of flexibility, this may equally be considered a disadvantage as ‘this flexibility can lead to inconsistency and a lack of coherence when developing themes derived from the research data (Nowell et al. 2017, p. 2). In point of fact, the development of themes is inherently driven by subjective analysis, where ‘the researcher becomes the instrument for analysis, making judgments about coding, theming, decontextualizing, and recontextualizing the data’ (Nowell et al. 2017, p. 2). In the same vein, sub-themes were subjectively identified as fitting under a broader theme but expressing a slightly different idea.

One needs to be aware that the themes and codes within sentencing remarks found may have been affected by plea negotiations or amendments to the statements of fact (Roff and Easteal 2021, p. 262). Within the sample used, the majority (82%, n = 41) of the sentencing decisions were preceded by a plea of guilty.

Lastly, any comparison between jurisdictions is limited by the preponderance of Victoria matters (41 of the 50 cases) and the inclusion of multiple offences within the sentencing remarks.

4. Results

The themes generated in the analysis are considered in relation to the question of how the sentencing remarks reflect the extent of understanding by the judge of the nature, dynamics, and effects of DFV from the victims’ perspective. We note that there did not appear to be any marked differences deriving from jurisdiction, the gender of the judicial officer, or the nature of other offences.21

4.1. Theme One: Control22

Both control and a loss of control may be seen within the broader context of coercive control as ‘impulsive but tactical behaviour, designed to effect fear, submission and compliance, even when it is “out of control”’ (Stark 2023, p. 308).

Indeed, as considered by Charlotte Barlow and Sandra Walklate, ‘[a] key feature of a coercive and controlling relationship is the presence of fear’ (Barlow and Walklate 2022, p. 45). Such fear frequently originates in events beyond physical violence where ‘[p]erpetrators will often use specific techniques that are unique to the victim and relationship to coercively control the victim, making it difficult for third parties to identify and understand what is going on’ (Barlow and Walklate 2022, p. 46).

In one victim impact statement the victim-survivor described how she was being controlled by the offender, and the corresponding lack of control she experienced:

[The offender’s] actions made me feel I had no control over the situation and I honestly felt that this was the night he would take my life as he threatened to kill me.23

The codes that made up the theme of control were in just over two-thirds (68%) of the sentencing remarks. These encompassed both explicit references to control and descriptions of behaviours such as possessiveness, jealousy, isolation, psychological violence and manipulation that fit within the category of controlling conduct.

An example of an explicit reference to control is seen in DPP (Vic) v Sepehrnia [2022] VCC 942, [92] (‘Sepehrnia’) where Judge24 Tinney described the offending as ‘[j]ealous, controlling threats to kill issued from early on in what was a short relationship’.25 In this excerpt, the sentencing judge characterised the offending in relation to its desired effect on the victim-survivor, and also to the attitude of the offender. Similarly, when describing antecedent DFV offences in DPP (ACT) v Rand, Justice Refshauge opined that these ‘show an ongoing attitude of [the offender] to the woman of whom he has a relationship, and, in particular, the possessiveness and jealousy shown, which is of an explosive and dangerous nature’.26 The use of words such as ‘possessiveness’ and ‘jealousy’ point to a broader context of control, whilst the word ‘explosive’ implies a sudden change driving the behaviour.

4.1.1. Sub-Theme: Loss of Control

Rather than a separate theme, we consider loss of control as a sub-theme, marked by a broader underlying theme of personal control (either control over the perpetrator’s own person or a loss of control for the victim-survivor) (Umberson et al. 1998, pp. 443–44). The way the sub-theme of loss of control relates to the overall theme was explored in Sepehrnia when Judge Tinney described the offender as ‘behaving like an out-of-control, jealous and controlling maniac’.27

4.2. Theme Two: Attitudes

The second theme involves reflective discussions of societal attitudes surrounding both the conduct of the offender and DFV behaviours more broadly. This theme was present in four decisions of the five post-reform ACT decisions (80%) as compared to two of the four ACT pre-reform sentencing remarks, and 49% of the Victorian judgments.

In addition to discussions of general deterrence, other attitudes concerned with community protection, community attitudes towards DFV and the cowardice of the offender’s conduct were found.28 For example:

The sentence I impose must announce to you the community’s denunciation of your treatment of [the victim-survivors]. It must signal to others the community’s absolute disdain for such violence behind the closed doors of a relationship.29

Here, Judge Riddell denounced the offender’s conduct, with her Honour using the word ‘announce’, alluding to the publicity of the sentencing process.

In a similar vein, Justice McWilliam described that ‘[s]etting higher maximum penalties for aggravated offences provides guidance to the courts and the … community about the seriousness of family violence offences compared to other offences’.30

In both examples, the notion of guidance indicates that the seriousness of family violence is something that is prescribed by the legislature on behalf of the community. However, in contrast, Judge Tinney made the judiciary the principal actors when stating that:

We are sick of men who think it is somehow their right to assault or threaten or monster a female intimate partner or ex-partner, as you did, … [w]e as judges must seek to deter others from committing this style of offence31

4.3. Theme Three: Characteristics of DFV

This theme, including its sub-themes, does respond to the question of whether the sentencing remarks indicate whether non-physical and non-incident specific aspects of DFV are understood and discussed by the courts. For instance, in DPP (ACT) v Padreny, Justice Refshauge wrote that ‘[a] feature of family violence which is most associated with women is the ‘cycle of abuse’ which generally progresses through phases’.32 In that matter, his Honour further described that ‘[p]erpetrators often combine subtle and overt methods to maintain their control over a victim’.33

4.3.1. Sub-Theme: Context of DFV

Although statements describing broader characteristics of DFV were not common within the sample (20%), there was a recognition in 52% of the sample judgments of its context. This could be indicative of an understanding of the nature and dynamics of DFV including its non-physical aspects (Birenbaum and Grant 2012, p. 218).34 For instance, in DPP (Vic) v Avalos (a pseudonym), Judge Riddell described ‘[a]lmost without exception each charged act here is accompanied by other physical and verbal violence’.35 Her Honour also found that:

The relevance of those other [uncharged] acts of violence as well as the aspects of psychological, at times financial and physical control you exerted over each woman… as context is that it places your offences in their true setting.36

This description of uncharged acts of violence and control as the ‘true setting’ validates the experiences of the victim-survivor by recognising the bigger picture in which the offending occurred.

A broader understanding of DFV was seen in DPP (Vic) v Reid where Judge Dawes outlined that ‘[a]s the relationship developed, the victim perceived you as a jealous and controlling partner’37 and in DPP (Vic) v Younis, similarly, her Honour, Judge Gwynn, considered the broader context of the relationship between the offender and the victim-survivor, but intimated that the offending conduct was out of character.

I accept that in terms of the offences for which you fall to be sentenced, there was limited, albeit some planning, and that your actions would appear to be out of character.38

4.3.2. Sub-Theme: Male Entitlement

Male entitlement covers judicial noting of behaviours and attitudes of offenders who demonstrated no regard for the victim-survivor. This was exclusively seen in Victorian sentencing decisions with 17% of the cases. For instance:

The situation is, putting it bluntly, that your former wife and your child are terrified of you and it is hard to escape the conclusion that you simply do not care.39

And, in DPP (Vic) v Talley (a pseudonym) Judge Moglia recognised the attitudes of the offender and clearly denounced these attitudes, using the adjective ‘terrible’.

The only explanation for your offending is that you held terrible attitudes about your own entitlement to control your wife and to justify violence to that end.40

4.4. Theme Four: Seriousness

As expected, given the lack of legislative mandate, none of the sentencing remarks contained a rationale for the criminalisation of the offence. Nevertheless, the theme of seriousness was identified in all but one of the ACT Supreme Court (88.89%, n = 8) and in two-thirds of the Victorian County Court judgments. 65.85%, An example from the latter jurisdiction is DPP (Vic) v Bersey:

As your counsel accepted, offending of this type is inherently serious. The content of the threats, and some of the messages, was rightly described by your lawyer as vile. Not only were strongly offensive words used, and racial slurs, but in some an actual method of killing was described.41

This statement not only demonstrates a recognition of the seriousness of the offence of threat to kill but also of the specific offending acts. Judge Dalziel’s use of the word ‘vile’ within the statement further highlights the seriousness to which the court may view the offending.

Serious threats to kill and trivial threats to kill were mentioned in two judgments by Judge Smallwood. In DPP (Vic) v Kellen (a pseudonym):

The vast majority of threat to kill charges are, in my view, throwaway lines in the heat of an argument or in the course of a dispute or someone who is becoming angry for a moment or two.42

It should be noted that within the judgment, his Honour immediately distinguished the conduct of the offender from this notion of a ‘throwaway line’. A similar conceptualisation that potentially minimises the offence was observed in DPP (Vic) v Tanaka where his Honour stated, ‘threat to kill in some circumstances can be a very serious offence. In other circumstances, not so serious’.43

4.4.1. Sub-Theme: Harm

This sub-theme which includes discussions of victims’ ongoing fear and harm, and their vulnerability was identified in 80% of the decisions. For example, in R v Cranfield, Justice Mossop stated that the victim-survivor, reading the victim impact statement, ‘describes herself as a shell of her former self’, ‘continues to fear the day when the offender will be free and living in the community’ and ‘describes the ongoing effects of anxiety and wariness and her loss of the joy of life’.44

In DPP (Vic) v Barton (a pseudonym), Judge Riddell referenced the victim impact statement as well:

She felt trapped and isolated from her family, unable to seek help for the abuse that [the offender was] putting her through both because of the shame and lack of respect that she felt for herself, but also because [his] offending against her was at a particularly vulnerable moment in her life.45

Here, her Honour was considering not only the vulnerable position of the victim-survivor but additionally the social stigma inherent within DFV offending.

In 11 cases, there was no victim impact statement filed (including the cases where more than one victim-survivor was identified). Its absence did not mean that the judge failed to recognise the harmful effects of DFV with, for example, Judge Chambers stating: ‘[a]lthough no victim impact statement has been filed, the events of this day must have been traumatic for the victim’.46

4.5. Theme Five: Contributions to Offenders’ Behaviour (Culpability)

Culpability encompasses considerations of the offender’s circumstances as they relate to the offending. Broadly, the theme incorporates discussions of the offender’s substance (ab)use, mental ill health, history of childhood deprivation, previous good character and prospects of rehabilitation. In a High Court case, The Queen v Bugmy (‘Bugmy’),47 a number of factors that could affect an offender’s culpability were enunciated. Bugmy principles were identified in six judgments as mentioned below.

4.5.1. Sub-Theme: Substance (Ab)Use

Within the theme of culpability, the most prominent sub-theme was substance abuse. Such behaviours or prehistory did not generally absolve the offenders of responsibility with judges, as illustrated in DPP (Vic) v Henderson, juxtaposing the idea of the substance abuse as causative (‘fuelled’) but not as exculpatory:

Your offending appears to be fuelled at least in part by lack of sleep and regular drug use, facts which do not excuse what you did in any way but may provide some context for this extreme behaviour.48

There were several explicit statements delineating a more direct causal relationship between substance abuse and the offending such as Judge Higham in DPP (Vic) v Kaur (a pseudonym) writing that the defence lawyer had ‘realistically conceded that the direct and driving cause of [the offender’s] offending was [the] alcohol abuse against the background of [his] inability to deal with the stressors in [his] life’.49 In this case, the judge described a ‘direct’ causal relationship between the substance use of the offender and the subsequent offending within the broader context of financial stressors. However, in this case, the offender’s deliberate failure to get help for his alcohol abuse pointed to his moral culpability.50

In other sentencing remarks, there was a recognition of a connection (not a cause) but with the caveat that this was not a factor in mitigation. For instance, Judge Cannon stated:

While it appears to be the case that you behaved in such an outrageous and cowardly fashion when affected by Ice and/or alcohol, or were suffering from sleep deprivation due to the effects of Ice, these are not matters in mitigation.51

4.5.2. Sub-Theme: Mental Ill Health

The second observed sub-theme within the theme of culpability was the offenders’ mental ill health as discussed in 17 cases. In seven of these, submissions made on behalf of the offender about a reduction in culpability due to mental ill health were not accepted as the sole reason for reducing the sentence. For example, the connection between the sub-themes of substance abuse and mental ill health is seen clearly in DPP v Bersey [2023] as Judge Dalziel discussed how both affected the offender’s behaviour:

Whilst I accept that [the offender’s] mental state to exercise judgment and self-control were affected by [his] mental state and various disorders, the impact of [his] voluntary drug consumption cannot be disentangled.52

And, in DPP (Vic) v Soan, Judge Johns articulated the way in which post-traumatic stress disorder (‘PTSD’) may be related to substance abuse:

I do find that there is an explanatory nexus rather than a causal one in relation to PTSD. And it is difficult when looking at an explanatory nexus based on something like PTSD when it sits within the context of wider Bugmy v The Queen (“Bugmy”) type factors and impacts, which in this particular case includes early exposure to drugs and alcohol.53

His Honour also contextualised PTSD within the context of childhood deprivation, which is looked at next.

4.5.3. Sub-Theme: Childhood Deprivation and Trauma

The sub-theme of childhood deprivation was intrinsically connected to the other sub-themes, although it was a more minor theme. The importance of considering childhood deprivation comes from Bugmy v The Queen where the plurality held that ‘[b]ecause the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision’.54 DPP (Vic) v Breheny illustrates that view plus how the offender’s childhood deprivation may be seen as linked directly with issues of alcohol and substances use:

I have accepted that the case of Bugmy applies to you, such that your upbringing has effectively hardwired you to resorting to drug taking and angry episodes when under stress, which in your case have transferred to abuse of intimate partners.55

A clear connection to the overarching theme of culpability was demonstrated too in a statement by Judge Lauritsen in DPP (Vic) v Alexander:

Given your appalling early life, Bugmy rightly applies. The observation at the end of the passage demonstrates your background serves to reduce your moral culpability, but the person you have become points to the need to deter and protect the community from you.56

The judge described two competing considerations within the sentencing process: the need to recognise the broader context for the offender in which the offence occurred, but in addition the need to protect potential victims.

4.5.4. Sub-Theme: Judicial Mention of Offender Denying His Actions

In 70% of the sentencing matters, judges made reference to offender denial, which could include victim-blaming and/or denying that the conduct ever took place. These judicial officers were not impressed. For example, in one case Judge Cohen stated that the offender ‘has never accepted responsibility for [his] offending conduct’.57 In another decision, Justice Kennett noted that ‘[t]he offender displayed a confusing and concerning attitude about his offences to the author of the pre-sentence report’ where ‘[h]e claimed to have accepted the decision of the Court, but also maintained that he did not commit the offences’.58 Similarly, in DPP (Vic) v Habib, [the offender] ‘took no responsibility and sought to blame the victim and accuse her of being mentally unwell’.59

4.5.5. Sub-Theme: Recognition of Remorse

In 38% of the decisions, there was a reference to (a degree of) offender remorse. For instance, in DPP (Vic) v Chirnside, Judge Hassan described aspects of the offender’s behaviour as ‘indicative’ of his remorse:

I also find in conjunction with your plea, your apology to the victim tendered at your plea and also your efforts at rehabilitation … are indicative of remorse on your part.60

Such an approach which considered a number of factors in conjunction can be compared with other judgments where the sole reference to remorse came from statements made by the offender in that matter to the author of the pre-sentence report.61

5. Discussion

We chose threat offences in part as they ‘are harmful in and of themselves but also portend a serious risk of substantive offending’ (Victorian Sentencing Advisory Council 2021, p. 5). Whilst there must be an assessment of the objective seriousness of the offending within the sentencing process,62 this is not synonymous with a denial of the reality for the victim-survivor, or other victim-survivors of the same type of offending. Indeed, as stated by the plurality of the High Court in Munda v Western Australia, ‘a just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in … denunciation and punishment’.63

We have seen here that harm to the victim-survivor, the seriousness of the offending, and denunciation of the act are consistently and explicitly seen within most of the sentencing stories. Further, the non-physical aspects of DFV are being recognised in statements that describe the behaviour of the offender as controlling or as out of control. The centrality of control to the offending is frequently referenced within the sentencing remarks, further pointing to an understanding by the courts of the nature and dynamics of DFV. This is illustrated by Justice Refshauge’s statement that ‘[p]erpetrators often combine subtle and overt methods to maintain their control over a victim’64 and how shaped the subsequent judgment narrative was shaped with his Honour describing that ‘[i]n this context it is now necessary to sentence [the offender]’.65

Similarly, within the theme of contributions to the offenders’ behaviour, there are the expected discussions of antecedents such as alcohol and drug use, mental ill health and childhood deprivation. This accords with a meta-analytic study which showed that ‘[s]urvivors and perpetrators both explained [DFV] perpetration in terms of a change or disinhibition in self when under the influence of alcohol or stimulant drugs’ (Gilchrist et al. 2019, p. 20). That research found too that ‘[p]erpetrators who used substances were more likely to blame their violence on intoxication or their partner’s behaviour’ (Gilchrist et al. 2019, p. 20). Moreover, survivors were apt to view intoxication by perpetrators as part of ‘a wider pattern of behaviour, including controlling tendencies and emotional unpredictability’ (Gilchrist et al. 2019, p. 20).

However, we note that these factors are critically analysed by the judicial officer. Rather than an excuse, when accepted, they are recognised as explanations of the offender’s behaviour, such as descriptions of being ‘hardwired… to drug taking and angry episodes when under stress’ in the case of childhood deprivation.66 Even though perpetrators’ narratives do exist within the sample of sentencing remarks, considering the sample as a whole, these are neither adopted nor endorsed. Consequently, within the theme of recognition of denial, the sentencing judge frequently characterises statements made by the offender denying the offending or seeking to blame the victim-survivor as ‘confusing and concerning’,67 or ‘very alarming in its own right’.68

We do observe nonetheless that there are sentencing narratives that continue to minimise the conduct of the offender, and also the reality for the victim-survivor. These are very much in the minority though. For example, his Honour Judge Smallwood’s statement cited earlier that ‘[t]he vast majority of threat to kill charges are, in my view, throwaway lines in the heat of an argument or in the course of a dispute or someone who is becoming angry for a moment or two’69 may be considered to be problematic, particularly when considering the characteristics of DFV, and the incident-specific responses of the criminal justice system.

5.1. Possible Relationship of Themes with Legislation

The language used within the courtroom matters. It is echoed to the offender, the victim-survivor and the broader public. Statements about public attitudes towards DFV offences fulfil the objectives of the requisite sentencing legislation insofar that they ‘denounce the conduct of the offender’,70 and ‘allow the court to denounce the type of conduct in which the offender engaged’.71

The themes identified by the reflexive thematic analysis reflect the aggravating and mitigating factors contained within the Crimes (Sentencing) Act 2005 (ACT) and the Sentencing Act 1991 (Vic) which must be considered in sentencing if relevant and known.72 Although termed differently, the themes of seriousness,73 culpability and contributions,74 and attitudes,75 each directly reflect a mandatory consideration found within the legislation. Other sub-themes, such as the degree of harm to the victim-survivor,76 the recognition of remorse or denial,77 childhood deprivation,78 substance abuse,79 and mental ill health or impairment80 are contained in the sentencing Acts used by judicial officers in our sample.

We have seen that in the ACT matters sentenced following the Crimes Legislation Amendment Act 2021 (No 2) (ACT), the themes of characteristics, control, context and attitudes are more prominent as compared with the Victorian cases and the earlier ACT decisions. This is not surprising as the addition of s 34B was intended to help judicial officers reflect on the characteristics of DFV with more explicit discussions of both its seriousness and dynamics.81 Accordingly, this section requires, amongst other things, that the Court considers the definition of family violence in s 8 of the Family Violence Act 2016 (ACT).82 Judicial officers are also directed to the preamble of that 2016 Act which states that ‘family violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years’.83

6. Conclusions

The themes identified within the sample of judgments for the offence of threat to kill show that most of the judges do appear to understand the nature and effects of the offence within the context of DFV. In the main, entrenched problematic societal views of DFV by judicial officers appear to have been replaced. Hopefully, these findings are not an anomaly but are instead a sign that the judicial sentencing narratives relating to violence against women space is changing to more accurately describe DFV’s manifestations, dynamics and outcomes.

Such positive change could be indicative of a nexus between specific sentencing legislation and narratives surrounding DFV within the courtroom.84 While some judges in our sample included wide-ranging comments or expressed their opinion towards the offending, we observed a largely formulaic approach to sentencing. Broadly, each judge considered what they were supposed to examine according to the relevant legislation. For example, mention of harm to the victim-survivor as required by s 33(1)(e) of the Crimes (Sentencing) Act 2005 (ACT) and by s 5(2)(d) of the Sentencing Act 1991 (Vic).

We have seen that how the harms of DFV are seen and understood may be informed by sentencing legislative provisions such as s 34B of the Crimes (Sentencing) Act 2005 (ACT). Whilst Victoria also has a Family Violence Act—the Family Violence Protection Act 2008 (Vic)—which contains an equivalent preamble and definition section,85 the Sentencing Act 1991 (Vic) does not require the Court to consider these in sentencing an offender.86 If Victoria and other jurisdictions where sentencing remarks are to a certain extent formulaic added a section similar to s 34B, our preliminary findings indicate that this might facilitate an increased likelihood of the DFV victim-survivor’s reality being heard.