Case Study: Unlawful assault

Date & location

March 2021, south-eastern suburbs.


Court

Dandenong Magistrates’ Court.


Facts

Our client a man in his early fifties had an argument with his daughter in her early twenties. The argument became heated, our client's wife intervened, as the conflict escalated our client became increasing annoyed and angry at what he perceived to be a lack of support from his wife. Unfortunately, the conflict culminated in our client slapping his wife three times to the left side of her face.

The police were called shortly after the assault. Fortunately, his wife did not require medical treatment. Pursuant to a Family Safety Notice our client was prevented from returning to the matrimonial home. Police later applied for and obtained a Family Violence Intervention Order on behalf of the complainant.

When questioned about his conduct, our client made full admissions, and his remorse was self-evident. The police charged our client with Unlawful assault.

How case resolved

Upon assessment of the prosecution brief and in consultation with our client, the decision to plead guilty to the offence early was obvious and really our client's best chance of mitigating the penalty. Sentencing for family violence offences has changed significantly over the last few years, and the dominant sentencing purposes for family violence offences are deterrence and renunciation. These sentencing purposes are frequently met by the recording of a conviction (so as to deter others from similar offending, and to send a message more broadly to the general community). In most cases, a without conviction outcome will not be justified simply on the basis that a defendant has no prior criminal history.

In this case, our client had no prior criminal history, he was remorseful for his actions, but more importantly had engaged in counselling to address the underlying causes of his behaviour namely his ability to regulate and control his anger in the context of inter-family conflict.

He completed a Behaviour Change course and attended psychological counselling organised by his GP as part of a Mental Health Care plan.

Our client also obtained several character references which were impressive and spoke to his community involvement and his good character.

Sentencing outcome

The Magistrate was ultimately persuaded that the competing sentencing considerations could be addressed by an Adjourned Undertaking with the conditions that he be of good behaviour (not commit any further offences) and complete the course of counselling prescribed by his psychologist. Furthermore, that he provides evidence to the Court that he had in fact completed counselling.

Importantly, and due in no small part to our client's efforts, the presiding Magistrate was satisfied that it was appropriate not to record a conviction.






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