Prison rates triple for breaches of family violence orders — but does it stop the abuse? (2022)

More people than ever are being imprisoned for breaching family violence orders in Victoria as police have become increasingly responsive to the state's scourge of abuse, recording a fivefold increase in the number of breach offences in the decade to 2020.

A new report by the Sentencing Advisory Council released this week shows Victoria's response to family violence has shifted dramatically since 2011, with remarkable yearly increases in the number of incidents attended by police, protection orders issued and breaches of orders sentenced —to the extent that about one in 11 of all cases sentenced in the Magistrates' Court each year now involves a breach of a family violence order.

Perhaps most strikingly, though, the imprisonment rate for breaches of family violence orders almost tripled over the 10 years and by 2020 was the most common sentencing outcome for breaches ahead of community orders, fines and lower-end orders. Men were three times more likely to receive imprisonment for breaching orders than women and received the bulk of prison sentences each year—likely a reflection of the fact that men's violence is generally more serious than women's, and men are more likely to have lengthier criminal histories.

The report could be seen as a "good news story" for police, who have frequently been criticised for dropping the ball and failing to act on family violence. But the findings also pull focus onto the impacts of Victoria's tightened bail laws — which have likely contributed to the increase in prison sentences for breach offences —and raise questions about whether tougher criminal justice outcomes are actually improving the safety of women and children.

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (1)

"We have seen significant changes in the nature of prison sentences in Victoria in recent years. There are more people receiving prison sentences each year, but fewer people serving prison sentences at any given time," said Arie Freiberg, chair of the Sentencing Advisory Council.

"The findings of this report suggest this is at least partly because courts are imposing more short prison sentences, especially for people who have been held on remand. This is very likely linked to changes to Victoria's bail laws, meaning many more people are held in custody while awaiting trial. It also invariably causes more churn of people cycling in and out of prisons."

What's happening on the frontline?

Police issued almost 13,200 family violence safety notices (FVSNs) in 2020—more than double the number issued in 2012 —largely due to an increase in the number of incidents officers attended, which jumped from 57,000 in 2012 to almost 93,000 in 2020.

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (2)

This contributed to an increase in the number of family violence intervention order (FVIO) applications in the Magistrates' Court, where the number of final orders made jumped 44 per cent between 2011 and 2019, before dropping considerably in 2020, almost certainly because of the effect of COVID on courts' ability to hear and finalise matters.

Police also recorded 53,200 breaches of family violence orders in 2020, a 402 per cent increase from 2011, which led to a tripling in the number of breach cases sentenced in the Magistrates' Court, where 97 per cent of the state's breaches were sentenced.

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (3)

The report's findings strengthen evidence that family violence is gendered —committed mostly by men against women: Men made up the majority of respondents on FVSNs and FVIOs (82 per cent), the majority of breach offenders recorded by police (85 per cent) and those sentenced for breaching (87 per cent). Women, meanwhile, made up the majority of protected persons on FVSNs (76 per cent) and IVOs (80 per cent).

They also suggest there has been a broadening in the kinds of relationships police are intervening in: While most FVSNs are made against current partners, the number of orders made against ex-partners increased more than fivefold, and the number of orders against family members quadrupled, which might indicate more children are being protected.

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (4)

Stakeholders told the Council they were not surprised by the increases, with some observing victims had become more willing to report abuse and police more prepared to take action —particularly against coercive controlling behaviours they might once have dismissed. This, the report notes, is at least partly because the Royal Commission has increased community awareness about the range of behaviours—and relationships —family violence can involve.

"As a whole, the findings of this report ... suggest that police have become increasingly responsive to family violence," Professor Freiberg said. "We hope [they] ... provide some measure of confidence that change is happening, and that family violence in all its forms is being taken seriously by the justice system."

What's driving the increase in imprisonment?

The almost-trebling of the imprisonment rate for violence order breaches will be seen by some as an encouraging sign that judges have become tougher on abusers who break the law, but by others as a massive problem.

In 2011 just 14 per cent of breach offenders received a prison sentence but by 2020 imprisonment had become the most common sentencing outcome at 40 per cent. This increase, the report found, is partly because of the introduction in 2013 of two new offences with maximum penalties of five years' imprisonment: persistently breaching a family violence order and breaching an order while intending to cause harm or fear.

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (5)

But by far the biggest driver of the increase in imprisonment was a tenfold increase in the number of breach offenders receiving short prison sentences of less than six months. This was driven "equally" by a jump in the number of time-served sentences — where a person is sentenced to a term of imprisonment that is equal to the time they've spent in custody on remand —and sentences requiring people to spend a little more time in custody than what they have already spent on remand.

Notably, the increase in prison sentences for breach offences is consistent with an overall trend of increasing imprisonment rates in the Magistrates' Court, which stakeholders attributed to changes to Victoria's bail laws, which from 2018 made it harder for people to get bail and increased the number of prisoners being held on remand. This in turn has increased the likelihood of courts imposing time-served prison sentences.

Police 'make no apologies' for bringing offenders before courts

Lauren Callaway, Assistant Commissioner of Family Violence Command at Victoria Police, said the report's figures showed police had "created an environment" where victims could more confidently report family violence. "Intervention orders are effective in reducing the rate of family violence recidivism and we make no apologies in bringing offenders before the courts in record numbers to keep the community safe," Ms Callaway said.

"The complexities and volume of family violence remain a challenge for police, but we continue to take a zero-tolerance approach to breaches of intervention orders, recognising that they play an important role in supporting victim safety and holding perpetrators to account."

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (6)

Still, some frontline workers say more police action against family violence —and the increase in imprisonment for perpetrators who breach protection orders — doesn't necessarily mean victims are safer, or that family violence is being addressed meaningfully.

Helen Matthews, director of legal and policy at Women's Legal Service Victoria, said she still hears of too many cases where police have "brushed away" women reporting breaches, particularly women who don't speak English well or who don't have immediate evidence of a breach, such as physical injuries or text messages.

Women's Legal also sees "too many cases" where police have misidentified a female victim of family violence as the primary aggressor, and named them as a respondent on an intervention order or charged them with criminal offences.

(The slight increase in women being named as respondents on orders — and the quadrupling in the rate of imprisonment for women breaching orders —was flagged in the report as a potential concern given it appears to be inconsistent with the policy of trying to reduce the number of women being misidentified.)

"There has been an enormous investment in police ... so we would want to see a greater responsiveness to family violence, and that it's there —that it's being taken seriously — is definitely a positive," Ms Matthews said. "But what I'm worried about is whether or not we've got women's safety being taken more seriously. So are those figures — more people making reports, police responding to those reports and to breaches —resulting in greater safety for all women?"

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (7)

More prison probably isn't fixing family violence

Ms Matthews said it was also important "not to congratulate ourselves" for putting more people in prison for breaching family violence orders because that also doesn't necessarily improve women's safety, hold perpetrators accountable or change their behaviour. As the Royal Commission reported in 2016, while imprisoning family violence offenders may be appropriate in many cases, evidence suggests it doesn't reduce violence and may actually increase the risk to victims when they're released.

"When you're talking about accountability of the perpetrator, I think it's a mistake to conflate imposing our most serious punishments as a sign that we're taking their behaviour seriously," Ms Matthews said. "When we're looking at short periods in prison, what are we doing? When those men come out of prison, what happens? There's no eyes on them at that point ... So imposing that punishment is not necessarily equivalent to perpetrator accountability ... and may well have consequences for the victim-survivor."

Prison rates triple for breaches of family violence orders — but does it stop the abuse? (8)

The Sentencing Advisory Council's report found the increase in breach offences receiving imprisonment over the decade to 2020 coincided with a decrease in the rate of community orders (CCOs), which dropped steadily from 32 per cent in 2015 to less than 20 per cent in 2020.

Meanwhile, the rate of fines for breaches remained stable at about 20 per cent, which it said was a "point of concern" because fining perpetrators often punishes victims if, say, the payment is drawn from shared accounts or stops an abuser paying child support.

The decline in CCOs, it says, "stands in stark contrast to recommendations made in 2016 by magistrates specialising in family violence", who suggested sentencing outcomes should not only prioritise general deterrence, "but also prioritise orders that keep offenders within the court's 'web of accountability'" —orders such as adjourned undertakings or CCOs which can include conditions requiring perpetrators to participate in treatment programs.

On that issue, stakeholders raised concerns with the Council about how the limited availability of men's behaviour change programs in Victoria was affecting courts' ability to "confidently mandate participation" in treatment as a condition of their sentence. One participant said "we often get breaches coming back" when people sentenced to orders or good behaviour bonds are still in the queue waiting for behaviour change programs or drug and alcohol counselling. "I think we would see far fewer breaches if treatment was front-ended."

For Helen Matthews, it all comes back to the question of whether criminal penalties are actually reducing family violence, protecting women and children.

"I'm not saying people shouldn't go to prison," she said. "But if we want to increase women's safety, we have to make sure we've got eyes on the perpetrator and that we've also got sufficient supports in place for women to make sure they don't have to worry about their security of housing, about whether or not they have to take all of these steps to make themselves safe."

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