Case facts
Our client was a father of a young daughter. The daughter resided with the mother. The mother was an active participant in on-line dating websites. It was the father’s opinion that his daughter was often not receiving appropriate care and attention, and was left alone at home unsupervised. The daughter let the father know, and the father decided to intervene by offering a “middle ground” of sorts – he would pick her up from school, feed, dress and bathe her before handing her back to her mother for the evening. Gradually, the mother took advantage of the assistance provided by our client and sometimes did not return home at night, leaving the child alone.
One evening, the child was so distressed alone at home that the father collected the child to console her. To say the least, he was unimpressed that the mother would leave the child alone at such a young age.
The father and child went to a fast food outlet, and upon leaving saw the mother leaving a motel. The father approached the ex-wife and expressed his disappointment. The mother called the man she had been with, who came down to street level where an argument took place between the two men. The father punched the other man. Police were called and he was charged with assault as well as stalking and intimidating the mother. Police took out a provisional AVO or apprehended violence order.
Charges and potential penalties
Our client was charged with common assault (domestic violence related) pursuant to section 61 of the Crimes Act 1900 and stalk/intimidate (domestic violence related) pursuant to section 13 of the Crimes (Domestic and Personal Violence) Act 2007. Common assault carries a maximum penalty of two years imprisonment. Stalk/intimidate carries a maximum penalty of five years imprisonment and/or 50 penalty units.
Negotiations
Our client accepted his guilt in relation to the assault matter, but denied stalking or intimidating his ex-wife. Upon reading the brief of evidence, police facts sheet and AVO complaint, there appeared to be no evidentiary basis for the latter charge. Representations were made in writing to the NSW Police Legal Services. The prosecution conceded that there was insufficient evidence for the stalking and intimidation allegation and agreed to withdraw those police charges.
Plea of guilty and sentence
With only the common assault charge remaining, our client pleaded guilty. We raised the context of the assault, which the magistrate readily accepted. After negotiations, the client agreed to an AVO being made in the statutory conditions only for a short period of time. The magistrate dismissed the common assault matter pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.
Why Nyman Gibson Miralis?
We are experienced in defending all types of police charges and AVOs throughout NSW. Our domestic violence lawyers can advise you on the typical traps and pitfalls that await an accused when they go to court. Whilst some AVO applications are genuine, many are not. Contravening an AVO can result in imprisonment and a criminal record.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.
