A Diversion for Unlawful Assault Offence
Melbourne Magistrates Court, March 2022
Unlawful assault (section 23 of the Summary Offences Act 1966 (Vic). The maximum penalty for this offence is 15 penalty units or imprisonment for 3 months.
The offence occurred in a setting where widespread mask use was not mandated under the CHO
s public health orders. The building in which our client lived had published a notice in various parts of the building, including the lifts to the building that directed the wearing of masks. Our client had just finished using gym facilities on a different floor and entered the lift to travel a short distance to his apartment on a different floor. Given the short distance, he did not fix a mask on his face. An argument between our client and another occupant of the lift developed on account of the fact our client was not wearing a mask and escalated to a physical altercation between our client and another man. The incident was captured on CCTV.
No injuries were sustained by our client or the other party. Our client was interviewed, was cooperative and gave a full account of his actions and was remorseful.
He was later charged with Unlawful assault, and his case was listed at Melbourne Magistrates' Court.
Our client had a clean criminal history.
How was the case prepared for Court?
During early discussions with our client, it was identified the prosecution case was strong, but there were powerful mitigating factors in support of our client.
Because our client had a clean criminal history, was cooperative during his interview, and expressed remorse, a request that the police recommend diversion was submitted.
The police agreed that diversion was appropriate in all the circumstances, and filed a diversion notice with the Court thereby progressing the case for a diversion assessment hearing before the Melbourne Magistrates' Court.
What was the outcome?
Detailed written submissions were provided to the Court in support of diversion together with several character references. The Court was persuaded to grant our client a diversion, and the diversion plan contained conditions to be of good behaviour for 3 months and to make a $450 donation to the Court fund.
Our client avoided a criminal record and was consequently able to avoid any negative consequences that may have affected his continuing employment in the real estate sector.