The Court: County Court of Victoria
The Lawyer: Kieran Burke
The Charges:
- Persistent Breach of Family Violence Intervention Order
- Breach of Order Intending to Cause Harm or Fear for Safety
- Breach of Family Violence Intervention Order
The Allegations:
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 family violence.
The client’s partner sought a family violence intervention order. The relationship ended briefly, but within a week, the client moved back in.
The order was subsequently varied to allow contact between the client and his partner, but the first clause, including not to commit family violence, remained. The order was varied at the request of the client’s partner.
In August of the same year, another incident occurred. The police were called and attended the property, and the client was subsequently charged. At this point, the relationship was over. The intervention order was then reverted to a complete no-contact order, preventing any contact between the two parties. This did not deter the client from attempting to contact the complainant over 100 times between August and October 2013.
The client was arrested three times during this period and, interestingly, released on bail each time. On the fourth arrest, the client was remanded into custody. Making a bail application would have been futile, as the client was deemed an unacceptable risk to the community.
Our solicitor attended the police cells and took instructions from the client. We entered a plea of guilty to multiple charges, including the 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 eligible for release. Fortunately for him, he had already served 18 days whilst on remand.
The client received this sentence due to the numerous aggravating features associated with his offence.
- Multiple breaches and their serious nature.
- He had visited the complainant’s property in the early hours of the morning, causing the complainant fear.
- Sent multiple emails and made numerous phone calls.
- He followed the complainant to work.
On advice, the client did not wish to appeal the matter and was prepared to serve a 30-day prison sentence and be subject to a 12-month suspended sentence.
Just seven days after his release from prison, the client contacted the complainant multiple times again. This was highly problematic because the client was now breaching the conditions of a suspended gaol sentence.
At Court:
Following these further breaches, the client called our office before the police could arrest him. Our solicitor immediately advised him to appeal his sentence. The client was entitled to appeal the original decision in the Magistrates Court concerning the breach offences, as he had 28 days to appeal the original sentence received. At the time of receiving his sentence of 30 days’ imprisonment, the client had already accrued 18 days of pre-sentence detention. This meant that the new offence had occurred only 19 days after the sentence had been imposed. The client had 28 days to appeal his sentence and could subsequently lodge an appeal within the time allowed.
Our solicitor 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 entered a residential rehabilitation facility. He stayed there until the time of his appeal at the County Court.
Upon attending the County Court of Victoria, our solicitor convinced the prosecution not to allege the new offending, as it had not been dealt with at that stage and could not be considered a prior matter. Our solicitor then urged the Judge to defer sentence for a further period because there was no potential for the client to complete a Community Correction Order due to the client being an inpatient at a rehabilitative facility.
Our solicitor 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 offences.
The Judge agreed and, although initially minded to impose a suspended sentence, adjourned the case part-heard for a further four months.
Unfortunately, during the deferral period, the client not only left the residential rehabilitation centre early but also recontacted the complainant in the matter. He was again charged with persistently breaching an intervention order and breaching the order with the intention of causing harm or fear for safety.
This was incredibly disadvantageous to our case, as the client had been given an opportunity not only to avoid 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 weekly. He also continued to participate in community service at the local Salvation Army and regularly attended Alcoholics Anonymous (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, our solicitor 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, which we had been trying to avoid.
More importantly, though, the Judge set aside the original Magistrates’ Court orders. If those orders had remained in place, the client would have faced a breach of suspended sentence regarding the new offences, meaning he would have had to serve an additional five months in prison.
Following the conclusion of the appeal, we attended the Magistrates’ Court to finalise the remaining two matters: one related to the client’s initial release from prison and the other to offences that occurred during the period of the deferral.
The Outcome:
Because the Judge had set aside the Magistrates’ Court Orders and reimposed sentence after the new offences occurred, the previous sentence could not be considered a prior conviction as per section 3 of the Criminal Procedure Act (“The Act”). The Act states that a previous conviction does not include a Magistrates Court order that has been set aside in an appeal.
Since the client had no prior criminal history when the new matters were being dealt with, he was sentenced in the Magistrates’ Court as an offender with no previous convictions and received a fine for the new offences.
From a defence perspective, the client was making it very difficult for our solicitor to keep him out of gaol because, despite being given numerous opportunities, he continued to offend. He was fortunate not to return to prison.
This was, however, an excellent outcome for the client as he avoided any further term of imprisonment for continuous family violence offending.
