SUBMISSION

NSW Sentencing Council: Homicide consultation paper

This supplementary submission applied recently published ANROWS evidence to the issues raised in the NSW Sentencing Council’s Homicide consultation paper. It was designed to supplement the information contained in ANROWS’s preliminary submission to this review. 

The submission utilises insights from ANROWS research – Kungas’ trauma experiences and effects on behaviour in Central Australia (Bevis et al., 2020) – to address the incarceration of Aboriginal and Torres Strait Islander women with experiences of domestic and family violence for murder and manslaughter. It argues that sentencing decisions affecting Aboriginal and Torres Strait Islander women need to consider the links between trauma and imprisonment, and the high rates and complexity of trauma in Aboriginal and Torres Strait Islander communities. This submission also uses the report Transforming legal understandings of intimate partner violence (Tarrant et al., 2019) to highlight the impact social entrapment theory can make in understanding victim and survivor behaviour to better ensure justice.

This submission recommended:

• a wider view of community impact that better considers the role of community for Indigenous people, and the intergenerational impact on Indigenous children in the sentencing principles relating to domestic violence homicides, as well as culturally safe, trauma-informed alternatives to imprisonment for manslaughter for these offenders
• against mandatory minimum penalties for manslaughter and murder, including domestic or family violence homicides, that impact upon judges’ and magistrates’ broad discretion to consider the circumstances and background of an offender when it comes to sentencing
• judges have a feedback loop about the consequences of decisions based on factual matters, like the circumstances of defendants, to help render visible the impact upon entrenched intergenerational disadvantage
• the mandated use of a social entrapment theory-based framework in sentencing decisions relating to victims and survivors of DFV who use lethal force
• a review mechanism that tracks sentencing decisions relating to victims and survivors of DFV who use lethal force
• supporting the NSW Domestic Violence Review Team’s call for a holistic approach to addressing domestic violence homicide, encouraging the Sentencing Council to take up the issues within its remit relating to structural inequality and disadvantage, and improving terminology about domestic violence used in sentencing.

Suggested citation

Australia’s National Research Organisation for Women’s Safety. (2020). NSW Sentencing Council: Homicide consultation paper [Submission]. ANROWS.