Diversion For Family Violence – Geelong Magistrates Court
Diversion For Family Violence Charges:
Diversion For Family Violence Penalties:
Family violence and violence against women generally is now taken incredibly serious by both police and the Courts. In turn, the courts have generally handed down harsher penalties to those who commit family violence-related offences. This means that if an assault involves a woman then it will be considered aggravating.
Section 18 of the Crimes Act 1958 (Vic) sets out the maximum penalty, being five years imprisonment. The offence of Recklessly Causing Injury requires the following to be proven beyond reasonable doubt:
- That an individual caused an injury in another;
- The injury was caused by that individual acting recklessly;
- That individual did not have a lawful excuse, such as self-defence.
Unlawful Assault carries a maximum of three months imprisonment and is set out under s23 of the Summary Offences Act 1966 (Vic). The offence is proven where:
- An individual, without permission of another;
- Intentionally touches another person;
- Without a lawful excuse to do so (such as during s football match, or by accident in a crowded area)
The charge of Unlawful Assault with an Instrument is governed by the same section, however the use of an instrument is considered an aggravating factor. As a consequence, it brings the offender closer to the maximum sentence. See section 24 of the Summary offences Act. For a greater discussion on assaults see here.
Diversion For Family Violence Facts:
Our client was a 55-year-old male. The offences for which he was charged involved physically assaulting his wife, specifically, hitting her in the head with a wine bottle and causing a laceration to her head.
Our client was arrested and interviewed in relation to the incident. He made a ‘no comment’ interview.
The Police charged him based on the evidence available, which included pictures of the victim’s injuries, her statement and the statements from witnesses to the incident.
Our client had no history of prior criminal behaviour and had not previously been subjected to police interview.
Our client had just started a new job that required a security clearance, and he could not have kept his job with a criminal record. This effectively left him with two options:
- Contest the charge
- Obtain a Diversion Order
After the incident, our client’s wife indicated to police that she had forgiven our client, by way of a statement of no complaint. They had reconciled, and she did not wish for the matter to proceed any further. However, it was too late to withdraw, and her statement of no complaint had no bearing on whether the matter would proceed.
Diversion For Family Violence Result:
Importantly, our client attended an appointment with one of our solicitors shortly after being charged. This allowed his legal representatives to engage in lengthy and meaningful negotiations prior to court.
It is very difficult in the current climate to convince police prosecutors to recommend a Diversion Order in respect of family violence, particularly in circumstances where injury is alleged.
The solicitor sought to negotiate our client’s charges with the Police Prosecution and put to them the fact that, despite investigating a serious allegation, they were stepping in the way of a family relationship in a way that neither party wanted.
Our solicitor asked that they conduct a Family Violence Case Review and have a further consideration of the matter.
Following this Case Review, and a discussion with the Family Violence Liason Officer, the Prosecution was eventually convinced to recommend the matter for Diversion.
Once the Diversion Notice was granted, the matter went to court. A similar argument was put to the Magistrate and the Diversion was granted.
This was a outstanding result for our client as his situation had changed dramatically following professional and strong negotiations with the Police Prosecutor. Our client initially thought that his options were limited given his charges. If we had not successfully argued that Diversion was appropriate, our client expected to receive a Community Corrections Order and a criminal record. Instead, he walked out of court with no record whatsoever. He was very lucky that he chose the right law firm and engaged us early to get him the best possible outcome.