Updated: Apr 18
Date and location of Offence(s)
August & September 2019
Melbourne Magistrates’ Court
Our client was charged with Breach Intervention Order x 3. The circumstances of the alleged breaches were that on dates in August and September 2019 our client sent his former partner text messages. These messages were not abusive but were in breach of a condition of a Family Violence Intervention Order that prohibited contact between our client and his former partner.
When interviewed by the police our client made full admissions and provided the context to the breaches.
Because of the incident, our client received a Charge and Summons directing him to attend the Melbourne Magistrates’ Court for the following offences:
Contravene Family Violence Intervention Order – s. 123(2) of the Family Violence Act 2008 (Vic) x 3.
Factors relevant to client
Our client had no previous criminal history, had a good professional work history and was 43 years old at the time of the offence. Of note also, our client suffered from Parkinson’s disease.
Outcome and how achieved
Family violence offences are rarely recommended by police for diversion, however the circumstances of the offending in this case warranted diversion. The following factors were highlighted in submissions to the Court:
· The offences occur against a backdrop of our client being in a parlous financial position and struggling to cope emotionally from the separation of his wife (marriage of 10 years).
· The content of the messages related to requests from his former wife that she render him some financial assistance, and it was noteworthy that when his former wife refused to engage with our client, he accepted her denial, and did not become abusive.
· Before and after the text message communication in August and September 2019, all communication had been respectful and solely in connection with their child.
· That our client was a man of otherwise good character, and that his character was demonstrated not only by reason of his lack of criminal history, but his long and consistent employment.
· Avoiding a criminal record was critical to his own attempts at rehabilitation, as he had struggled for a few years to re-join the workforce as he had suffered the severe and debilitating symptoms of Parkinson’s disease.
These submissions were further strengthened by submitting compelling character references evidencing our client’s good history. Medical reports setting out the severity of our client’s physical and mental health were also submitted to the court.
Ultimately, the Court was persuaded that it was appropriate to approve Diversion, notwithstanding that our client had been charged with 3 counts of Breach Intervention Order. This case study also highlights that where the criminality associated with a breach is at the lowest level, a diversion may be achievable.
An Important Note Regarding Case Studies Published on this site
Obviously, each case turns upon its own facts and a variety of other factors including matters personal to the accused, and most relevantly the law set out and applied in the Sentencing Act 1991 (Vic). In some cases, additional aggravating facts will result in a more severe outcome. Case studies such as this one are published to inform you of the sentencing outcome that was achieved in a particular case. The case study does not constitute legal advice. It is always important to receive legal advice based upon your situation and what factors may be argued to obtain the best possible outcome.
Written by Shaun Pascoe, Director, Pascoe Criminal Law.