The Court: Frankston Magistrates Court
The Lawyer: Alex Miglietti
The Charges:
- Intentionally Cause Injury
- Recklessly Cause Injury
- Common Assault
- Wilfully Damage Property
- Contravene Family Violence Intervention Order
The Allegations:
The client and his partner had been in a relationship for approximately five years. They had two children from the relationship: a two-year-old and a newborn. The partner has an older daughter, aged six, from a previous relationship, who resides with the client and the partner.
The police had attended the client’s residence on several occasions concerning allegations of domestic violence between the parties. On one of the occasions, the police sought a Family Violence Intervention Order to protect the partner and the children.
The client and his partner had a domestic dispute, and the neighbours called triple 000. At the time, a safe contact intervention order was in place against our client. Upon police attendance, our client admitted to damaging property when he was leaving the home following a fight with the complainant; however, he denied all allegations of assaulting the complainant.
The client was charged with several family violence offences relating to four separate incidents between the client and his partner and breaches of an intervention order.
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, given that there was no act of violence following this incident.
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 Intervention Order. 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 these incidents. These statements would be vital to the case against our client, as they would offer a firsthand account of what happened on the dates in question. The complainant would be required to give evidence if the matter proceeded to a contested hearing.
Ultimately, the complainant provided a statement. However, is only related to one of the four alleged incidents. The complainant had also stated to police that she would not be giving 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 regarding the withdrawal of some of the charges.
At Court:
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 causing injury, recklessly causing injury and unlawful assault concerning 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.
Our solicitor 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 by treating the complainant as an unavailable witness and tendering her statement to the court as contemporaneous evidence.
The above issues were explained to our client, who instructed our solicitor to obtain a sentence indication regarding all the charges. That is, our solicitor asked the Magistrate to provide the likely sentence that our client would receive if he entered a plea of guilty to the charges, rather than proceeding to a contested hearing.
The Magistrate 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 Correction Order to assist with the treatment and management of our client’s mental health and drug issues. Formal pleas of guilty were entered on this basis, and the matter was adjourned so that an assessment for suitability to undertake a community correction order could occur.
The Outcome:
The client was ultimately placed on a Community Correction 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 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 will be prepared and submitted by the Corrections office regarding 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 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.
