Case Study – 2 x Contravention of Domestic Violence Order

Matter: 2 x Contravention of Domestic Violence Order

Court Brisbane Magistrates Court

Maximum penalty: 3 years imprisonment

Solicitor: Jack Bendall

 

Date: March 2023

Overview

Our client was a named respondent on a protection order, his partner was the aggrieved. As a result of the protection order being made he was subjected to a number of conditions. These conditions included him having no contact with the aggrieved, and was prohibited from being within 100 metres of the aggrieved, unless with her written permission.

A few months after this protection order was made, our client was charged with contravening the order. This was in circumstances where the aggrieved and our client were found arguing in a carpark.

When the police arrived, they discovered that the aggrieved had not provided written consent for our client to be within 100 metres of her. The aggrieved further told the police that she locked herself in her vehicle due to our client yelling at her. Our client was granted bail on this occasion.

Just over one week later, our client was charged for a second time with contravening the protection order. On this occasion, a member of the public had observed our client and the aggrieved to be in a physical altercation inside a vehicle. It was alleged that our client had punched the aggrieved repeatedly. The aggrieved was later contacted by the police. At this time, she told the police that she had hit our client out of frustration. Our client was questioned by the police. He confirmed that an altercation had occurred between himself and the aggrieved, however he said that he was attempting to restrain the aggrieved as a result of her assaulting him.

Following questioning, our client was arrested and held in the watchhouse. The following day our client’s bail application was refused, and he was remanded in custody.

Mr Bendall was then engaged to act for our client after his bail application was refused.

Discussions with our client

Mr Bendall met with the client in custody.

After meeting with Mr Bendall and being provided with some advice in the matter, the client instructed that he had decided to enter a plea of guilty to both of his charges. He also advised that he wanted to have his matter resolved and be sentenced as soon as possible.

Our client’s sentence

By the time our client’s matter was listed for sentence he had spent approximately three months in custody.

The prosecution informed the court of the facts and tendered the protection order that was in place at the time of our client’s offending.

The prosecutor then made submissions referring to the violent nature of the offences, in particular our client’s second charge.

Mr Bendall then made detailed submissions on our client’s behalf noting relevant mitigating factors which included:-

• Our client’s personal background, in particular his exposure to domestic violence as a child and his Cerebral Palsy diagnosis;
• the particular circumstances surrounding the offences, particularly the conduct of the aggrieved;
• That this our client had not previously been charged with or convicted for breaching a domestic violence order;
• Our client’s efforts towards rehabilitation prior to being remanded in custody (in particular obtaining a mental health plan and referral to a psychologist);
• Our client’s employment prospects were he to be released;
• The time spent in presentence custody and the impact of this time in custody;
• Our client’s immediate acceptance of responsibility for the offences, early plea of guilty and genuine remorse; and
• The potential impact of a recorded conviction upon him.

Mr Bendall ultimately submitted that the appropriate penalty in the circumstances was a 12 month period of probation. He also urged the Court to exercise their discretion not to record a conviction for the offences, having regard to the impact this may have upon our client’s future employment opportunities.

The Court noted that the conduct in question was seriously concerning, and that were our client to be convicted of any further domestic violence offences it was likely that he would receive a custodial sentence. Ultimately the presiding Magistrate accepted Mr Bendall’s submissions and made the following orders:

• Our client was sentenced to a probation order for a period of 12 months; and
• No convictions were recorded.

Our client was released from custody shortly after his sentence, much to his relief and his family’s.