The laws in Victoria in relation to domestic violence are unforgiving, and this case presented as one of the most challenging intervention order breaches that we have had to deal with.
Should you breach a domestic violence intervention order multiple times in Victoria, you will be locked up. If the charges are made out then this will happen at the time of sentencing. Often it happens prior to the matter being heard, because the police refuse bail and leave defendants on remand (locked up before Court has been finalised). In many cases the Bail Act insists that this is what should happen.
Magistrates spurred on by police, the legislation and the media take a hard line when it comes to domestic violence. Anyone charged with domestic violence should seek urgent advice from a lawyer.
The client met his partner in March of 2013. The relationship progressed quickly and two months later the client and his partner moved in together. Within one month there was an incident involving domestic violence. A family violence protection order (also known as an AVO) was sought by the client’s partner. The relationship ended briefly but within a week the client had moved back in, in contravention of the order.
The order was eventually varied to allow contact but clause one (cannot commit family violence) remained. The order was varied at the request of the client’s partner (also known as the complainant, AFM or aggrieved family member).
In August of the same year there was another incident. The police were called and the client was charged. At this point the relationship was over. The intervention order was then reverted to a full order, preventing any contact between the two parties. This did not stop the client from attempting to contact the complainant over hundred times from August through to October 2013.
The client was arrested three times during this period and, amazingly, released each time. On the fourth arrest the client was arrested and remanded in custody. It was a waste of time to seek bail, because the client presented an unacceptable risk (see bail section). We attended the police cells and took instructions from the client. We entered a plea of guilty to multiple charges, including the very serious charges of persistently breaching a family violence intervention order and breaching a family violence intervention order with an intention to cause harm. The client received a penalty of six months gaol, with one month to serve immediately and the balance of five months wholly suspended for 12 months. This meant that the client had to serve 30 days before being able to be released.
The client received this sentence because of the multiple breaches and the serious nature of the breaches. He had attended the complainant’s property in the early hours of the morning, sent multiple emails, made multiple phone calls and followed the complainant to work. The client did not wish to appeal and was prepared to do the 30 days prison and be subject to a suspended sentence for 12 months.
Just seven days after his release from prison the client again contacted the complainant multiple times. This was extremely problematic from a defence perspective because the client was now breaching the conditions of a suspended gaol sentence.
Fortunately the client called our office before the police could arrest him. We immediately advised him to appeal his sentence, because he had offended within 28 days of being sentenced. At the time of sentence he had already accrued 18 days of pre-sentence detention. The new offending had occurred only 19 days after the sentence had been imposed. The client had 28 days to appeal his sentence and subsequently could lodge an appeal within time.
We then advised the client to attend rehabilitation. The client had a significant alcohol problem, whereby every time he drank to inebriation he would contact the complainant. The client returned to his home state and entered a residential rehabilitation facility. He stayed there until the time of his appeal at Court.
Upon attending the County Court, we convinced the prosecution not to allege the new offending, as at that stage it had not been dealt with and could not be considered a prior matter. We then urged the Judge to defer sentence for a further period because there was no potential for the client to complete a Community Corrections Order. The Judge agreed and but imposed a suspended gaol sentence.
The Judge was persuaded to adjourn the case part-heard before imposing a further gaol sentence. The point of a deferring sentence is to allow the client to be released for a further period and undertake rehabilitation on their own terms to prove to the Court that they are worthy of being given an opportunity.
We submitted to the Court that upon successful completion of the client’s residential rehabilitation stay, the Court should:
a) set aside the original Magistrates’ Court decision;
b) remove the gaol sentence from his record; and
c) impose a fine in relation to all the offending.
The Court agreed and the matter was adjourned for a further four months.
Unfortunately during the deferral period the client not only left the residential rehabilitation centre early but once again contacted the complainant in the matter. He was again charged with persistently breaching a domestic violence order and breaching a domestic violence order with an intention to cause harm to the complainant.
This was an unbelievable situation. The client had been given an opportunity to not only avoid doing any further gaol time but also to avoid having the gaol sentence on his record. He only had to stay on the path of rehabilitation and not commit further offences.
Although he left the residential facility early, the client did continue to see a psychologist on a weekly basis. He also continued doing community service at the local Salvation Army and he kept attending AA meetings. In this period he had completed four months of live-in rehabilitation. These were all positives that had to be taken into account.
On the return date, and despite the new offences, we submitted that a fine was still appropriate. Taking into account the client’s rehabilitative efforts the Court agreed, but also decided to record the 30 days that had already been served on his record, something we were trying to avoid.
Critically though the Judge set aside the original Magistrates’ Court orders. If those orders had remained the client would have been facing a breach of suspended sentence regarding the new offences, meaning that he would have had to serve an extra five months in prison.
Further to that, if the client had received a suspended sentence in the first instance from the County Court Judge, prior to the deferral period, the client would have breached that sentence and would have likely ended up serving an immediate gaol sentence in relation to the new offending.
Following the conclusion of the appeal, we attended the Magistrates’ Court to finalise the remaining two matters, one being when the client was first released from prison and the other being offences that occurred during the period of the deferral.
Because the Judge had set aside the Magistrates’ Court Orders and re-imposed sentence after the new offences occurred, the sentence subject of the appeal could not be said to be a prior conviction per the Criminal Procedure Act (CPA). Section 3 of that Act states that a previous conviction is not a Magistrates’ Court order that has been set aside per section 256 of the Criminal Procedure Act.
Since the client had no matters that could constitute a criminal history, the client was sentenced in the Magistrates’ Court as an offender with no prior history, and received a fine.
From a defence perspective this case was very frustrating because despite the client being given a number of opportunities, he continued to offend. He was very lucky not to go to prison again.
The client avoided gaol for two reasons. Firstly, our experience with offenders (particularly first time offenders) dealing with substance abuse issues. We understand that they need time to address the addiction. In this case the client was given a number of chances to address his addiction and may well have got over the line, but it took time. The other critical factor was having a firm understanding of both the Criminal Procedure Act and the Sentencing Act and using both to the client’s advantage.
This case study highlights the importance of engaging specialist criminal lawyers to assist you if you are facing charges in relation to domestic violence. Visit our website for further information on AVO Apprehended Violence Orders or Intervention Orders