Section 123 of the Family Violence Protection Act 2008

by Michael Brown

Charges:

The client was charged by a number of informants with offences including:

Our client was also charged with driving offences. All of the offences occurred over a two month period.

Court Location: Frankston Magistrates Court

Facts:

  • Our client and the complainant had been in a relationship for approximately 5 years. They had two children of the relationship; a son, 2, and a newborn daughter. The complainant has an older daughter, 6, from a previous relationship.
  • The Police had attended the residence of our client and the complainant on a number of occasions in relation to allegations of domestic violence between the parties.
  • Family Violence Intervention Orderwas sought by police after the last occasion that they had attended the residence.
  • The complainant and our client were still in a relationship at the time that the matters were before the Court.

Our client denied all allegations of assaulting the complainant. He did admit to damaging property when he was leaving the residence following a fight with the complainant.

Interestingly, on one occasion the complainant stabbed our client in the leg with a kitchen knife. The police summary acknowledged that after this occurred, our client removed the knife from his leg and went to the hospital to seek treatment. This was an important fact as it bolstered the credibility of our client’s version of events as there was no act of violence following this incident.

Section 123 of the Family Violence Protection Act 2008 states that the penalty for each breach of the Act, the maximum penalty is Level 7 imprisonment (the equivalent to 2 years), a level 7 fine (the equivalent to approximately $35,000 in fines) or both.

Our client had a significant prior history and a term of imprisonment was a likely outcome in this matter due to the severity of the allegations as well as contraventions of the Family Violence Protection Act. Although the police summary stated that there were acts of violence against the complainant, the police failed to provide statements made by the complainant regarding the incidents. These statements would be vital to the case against our client as they would give a first hand account of what happened on the dates in question and the complainant would be required to give evidence if the matters proceeded to a contested hearing.

Ultimately a statement made by the complainant was provided. However, it only related to one of the four alleged incidents. The complainant had also stated to police that she would not be providing evidence to the court at any contested hearing. This meant that for all but one of the incidents, our client’s evidence as to what had occurred would be the only version that could be put to the Court by a person who was present at the time of the incident. This enabled fruitful negotiations to occur with the prosecution with relation to the withdrawal of some of the charges.

The prosecution conceded that, without the evidence of the complainant, it was unlikely that the Court could find that our client was guilty of intentionally cause injury, recklessly cause injury and unlawful assault in relation to three of the four incidents. As a result, the relevant charges were withdrawn and the summaries of the offences were amended to reflect only the remaining charges. However, the prosecution indicated that they would proceed with the charge of unlawful assault where the complainant had previously made a statement.

We argued that the charge should be withdrawn on the basis that the complainant would not give evidence at a contest. However, the prosecution maintained that they could prove the charge as they would treat the complainant as an unavailable witness and tender her statement to the court as contemporaneous evidence.

The above issues were explained to our client who instructed us to obtain a sentencing indication with regard to all of the charges. That is, we asked the magistrate to provide our client with a sentence that they would be given, if they entered a plea of guilty to the charges rather than proceed to a contested hearing.

The magistrate was read all of the summaries to the remaining charges, viewed and considered our client’s prior criminal history and indicated that he would place our client on a community corrections order to assist with the treatment and management of our client’s mental health and drug issues. Pleas of guilty were entered on this basis and the matter was adjourned so that an assessment for suitability to undertake a community corrections order could occur.

Result:

The client was ultimately placed on a community corrections order that would run for a period of 15 months. Although the main focus of the order was the rehabilitation of our client, the magistrate ordered that he complete community work in order to address the punitive element of sentencing.

The magistrate also ordered that the client be subject to judicial monitoring throughout the course of the order. That is, the client is required to appear before the sentencing magistrate and reports would be prepared and submitted by community corrections as to his progress and compliance with the order. The magistrate stated that this was to ensure that our client was complying and benefiting from the imposition of the order. Furthermore, the magistrate warned that if the reports were not favourable, he would resentence our client and he would be sentenced to a term of imprisonment.

This was a wonderful result for the client as the possibility of a term of imprisonment was very likely due to the client’s prior criminal history. This meant that the client would be able to properly address both his drug and mental health issues and would still be held accountable for his actions as he would still be required to appear before the sentencing magistrate and prove that he was taking advantage of the chance of rehabilitation that was given to him.

If you have an upcoming court appearance or just need some legal advice, call our trusted law firm and let one of our Family Violence Intervention Order Lawyers help you today.



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