Table of Contents
Summary of Facts
Charges
Use telecommunications to harass, Unlawful assault, and Breach Family Safety Notice
Court
Moorabbin Magistrates' Court - November 2022
Our client had attended a function with his wife during which he had consumed a considerable amount of alcohol. His wife left and he remained at the function. He continued drinking and sent numerous text messages to his wife.
Later he came home and a protracted argument occurred with his wife that involved an allegation of unlawful assault. The police were called and he was taken to the police station where he was served a family violence safety notice and questioned about what had occurred.
After being served with the safety notice he sent further text messages to his wife. In the weeks that followed the police applied for an intervention order, and our client was charged with the three offences referred to above. The matter then proceeded to the Moorabbin Magistrates' Court for a hearing.
What Happened at Court?
Our client disputed the unlawful assault allegation and it was clear that the offence of Use telecommunications harass was not appropriate to the circumstances of the case.
The matter proceeded to a contest mention. It was conceded by the prosecution that in circumstances where the first batch of text messages sent by our client had occurred before the later allegation of unlawful assault (and before the attendance of police at our client's home) that it was not appropriate for that charge to be laid.
Our client maintained his instructions in regard to the allegation of unlawful assault. The breach of the family violence safety notice was not disputed.
The matter was poised to proceed to a contested hearing but the prosecution was prepared to concede exceptional circumstances for the purposes of a Court diversion for family violence offences. The factors which assisted the prosecution's recommendation for diversion included:
although his wife wanted a final separation, she was still supportive of a diversion;
our client had attended counselling to address his mental health and alcohol consumption
he had all but completed the men's behaviour change course.
The matter was then adjourned for a diversion assessment hearing.
Court Outcome
The Magistrate was prepared to grant a diversion and the conditions ordered by the Court were that our client:
be of good behaviour for 12 months;
contribute $1000 to the Court Fund;
complete the men's behaviour change course.
Conclusion
In the above case study, our client was able to avoid a criminal record for family violence offences and received a diversion.
The prosecution did not offer diversion and the outcome achieved was a result of negotiations with the prosecution, and some good work by our client in demonstrating a continued period of rehabilitation and treatment.
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