- South Australia - National Domestic and Family Violence Bench Book
- South Australia
- Bentleigh East south Bentleigh East girls
- Supreme Court - Full Court
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The respondent accepted that he was a high risk offender pursuant to s 5 of the HRO Act, and did not oppose the making of an ESO provided that the order included the following conditions [14] : The respondent may depart from South Australia with the intention of living in another State, and if he chooses to do so, he will not be subject to the order unless he returns to South Australia during the period of the order. The order will take effect if the respondent returns to South Australia.
The respondent proposed that he would move between the Tjuntjuntjara community and Kurrawang, where he has other relatives.
South Australia - National Domestic and Family Violence Bench Book
He also expressed an intention to live in Esperance [15]-[16]. Further, it was submitted that if he was prevented from living on or near his traditional lands, both on the APY Lands and in Western Australia, this would negatively affect him and increase his likelihood to reoffend, as he would be deprived of the opportunity to play a meaningful role in his culture and lore [19]. Her Honour placed great reliance on the psychiatric report [35] , which noted that the respondent was at high risk of further violent offending, due to his significant history of violent and sexual offending, his limited and only very recent insight into that behaviour, and his tendencies to minimise his behaviour and blame circumstances and victims for his past behaviour [36].
It was also noted that the respondent was at a heightened risk of sexual offending due to his issues with childhood abuse and increased risk of violence [37]. If the respondent returned to his traditional lands in South Australia, he would be at a greater risk of reoffending due to potential personal conflicts with other community members and the difficulties in accessing adequate supervision in remote communities. There would also be a real risk of the respondent resuming alcohol abuse without adequate supervision and therapy [43]. The further the respondent travels from Adelaide, the more difficult it would be for him to access the necessary therapy [47].
Even though Tjuntjuntjara is a dry community, other communities in which the respondent had expressed a desire to visit are not [50]. Under the terms of the order proposed by the respondent, there would be no practical way for the Court to satisfy itself that the community is protected should he choose to visit or reside in South Australia [53] , as South Australian supervisory authorities have no practical way of determining if he was to re-enter the APY Lands [52].
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Her Honour held that an ESO for a month term would adequately protect the community and enable the respondent to continue with appropriate rehabilitation and therapy [55]. Charges : 3 x contravening a term of an intervention order contrary to s 31 2 of the Intervention Orders Prevention of Abuse Act SA. Facts : The appellant, who was self-represented at trial, was convicted of three counts of contravening a term of an intervention order, contrary to section 31 2 of the Intervention Orders Prevention of Abuse Act SA.
Although he admitted to attending the premises, he argued that he genuinely believed that the victim and their daughter were residing at a different address [2], [9]. Under s 13B of the Evidence Act SA , the appellant was not allowed to cross-examine the victim at trial unless it was done so by counsel. Section 6 1a of that Act provides that if a defendant who is not legally represented at trial applies to the Commission for legal assistance for the cross-examination of a s 13B witness in the trial, the Commission must, subject to qualifications, grant such assistance [17].
Although the Magistrate advised the appellant of his right to apply for legal aid [14], [16] , he did not advise him that legal assistance must be granted to a defendant subject to certain qualifications terms , and instead informed the appellant that he probably would not qualify for legal assistance [18]. The trial was adjourned, and upon resumption, the appellant remained under the mistaken belief that he would not qualify for legal assistance and was not advised of s 6 of the Criminal Law Legal Representation Act SA.
Consequently, the Magistrate accepted her evidence and convicted the appellant [21]. Held : Lovell J allowed the appeal and set aside the conviction. In the present instance, the appellant was required to be aware of and fully understand his rights provided for by s 13B and, by extension, s 6 1a in order to receive a fair trial [23].
The Magistrate was obliged to ensure that he fully understood that cross-examination of the victim could only occur if he employed counsel to do so on his behalf, and that if he applied to the Commission for legal assistance, they were bound by law to provide it, subject to any conditions they saw fit [24].
Facts : The appellant was convicted of assault causing harm after having repeatedly punched the victim in the face, in the presence of her twin daughters from a previous relationship [14]. The appellant and victim had been in a relationship for approximately 9 years. The conditions of the bond are noted at [3], and included the requirements that he does not leave South Australia unless given permission by his Community Corrections Officer for specific purposes, and that he attend any programs and appointments as directed.
Issue : The appellant appealed against the sentence on the grounds that it was manifestly excessive and that it was manifestly unreasonable to not wholly suspend the prison sentence. He also appealed the condition of the partially suspended sentence bond requiring him not to leave South Australia without permission. Although the appellant has not consumed alcohol in over 3 years, he reported weekly use of cannabis [23]. His mother was dependant on him and he also had a brother who suffers from schizophrenia [20].
The appellant experienced anxiety and low self-esteem, as well as health issues. His psychologist opined that he exhibited dysfunctional personality traits, and experienced self-doubt and feelings of inadequacy [25]. According to a violence risk assessment, the appellant was identified as likely to pose a Moderate-High risk of re-offending [26].
Having regard to the relative importance of general deterrence, Kourakis CJ held that the length of the prison sentence was not manifestly excessive. The length of both the notional starting point and the actual prison term was well within the permissible range. Kourakis CJ allowed the appeal only to the extent of removing the condition of the bond requiring the appellant to not leave South Australia unless given permission by his Community Corrections Officer, as such a condition was unreasonable.
Facts : The appellant and the complainant were in a relationship and two children were born of that relationship. Issues : The appellant advanced two grounds of appeal; both grounds were considered together since they were intrinsically linked in both time and context [42]. In the extract, the High Court stated that the facts are to be determined by the jury and the trial Judge may comment on the facts but often the safest course for a trial Judge will be to make no comment on the facts beyond reminding the jury of the arguments of counsel [49].
In addition, for the same purpose, his Honour referred to similar observations made in R v Golubovic where it was pointed out that in trials such as the one at hand, there may be little need for the judge to identify the issue or explain the cases of the parties [50]. For these reasons, amongst others, his Honour deemed that it was unnecessary for the Judge to provide more elaborate directions in the terms suggested by the appellant see [3]. Charges : 2 x aggravated assault, 1 x contravening a term of an intervention order, 1 x property damage.
Facts : The offending occurred in the context of a domestic relationship which was in the process of ending [5]. At the relevant time, the appellant was subject to an intervention order [11]. The appellant was living with his former domestic partner and her daughter the protected person under that order. One count of aggravated assault involved the appellant punching his former domestic partner with a clenched first to her left shoulder in the presence of her daughter [8]. The police were called to the house.
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His character references indicated that he was a hardworking, honest person who made a positive contribution to his community [14]. The appellant had a prior conviction for assault of a police officer for which he was ordered to perform hours of community service within 10 months [15]. The Magistrate did not refer to the circumstances that led to the making of the intervention order [17].
In his view, specific and general deterrence were significant sentencing principles [18]. Held : Hinton J allowed the appeal in part. His Honour considered each ground separately, and placed reliance on relevant case law and statistics from the New South Wales Bureau of Crime Statistics and Research. Referring to House v The King and R v Lutze, his Honour concluded that the submissions made in support of the first appeal ground should be treated as forming part of the submission in support of the second appeal ground [24].
The appellant did not provide any explanation for his conduct or express remorse or contrition, and mitigating circumstances were absent. Although he is an intelligent person, his prior involvement with the courts and police should have been a clear reminder that such violent, abusive conduct towards his family and police is not tolerated [40]. Facts : In the respondent assaulted his partner and was sentenced to imprisonment for 9 months, suspended upon entering into a good behaviour bond for 18 months.
In the respondent breached his good behaviour bond by committing a further assault on his partner.
Supreme Court - Full Court
The Magistrate excused the breach of bond, extended the bond by 6 months, and sentenced the respondent to imprisonment for 28 days for the fresh offending suspended upon the respondent entering into a further good behaviour bond for 18 months. Decision and reasoning : Granting permission to appeal and dismissing the appeal, the Full Court held:. His Honour, at [35], cited the Magistrates three reasons for refraining from revoking the suspension:. His Honour held that reasons 1 and 2 were personal circumstances. Facts : On 2 November , the appellant was arrested and charged with stalking his father-in-law.
He was released on bail subject to conditions, one of which prohibited him contacting his then wife of 13 years, who was also the mother of his five children and the daughter of his father-in-law. On 10 November , the appellant telephoned his wife, but did not leave a message. The appellant also sent 2 text messages on a separate occasion. As a result, he was arrested and charged with 3 counts of breaching the terms of his bail.
The appellant appealed against the conviction and sentence. His appeal against conviction was over 40 weeks out of time. Issue : This is an appeal against a conviction and sentence, where the appeal against conviction was made out of time.
The appellant submitted that the relevant bail condition was unreasonable or unlawful for including the prohibition against contact with his wife when she was not the complainant. He also argued that he had not been competently represented by counsel at his trial. Held : Upon the hearing of the appeal, the appellant was unrepresented.
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Hinton J noted that one of the purposes of conditions of a bail agreement is to prevent further offending [33]. Hinton J was not satisfied that the impugned condition was legally unreasonable, as the evidence suggested a domestic disturbance between the appellant and his wife, a repeat of which the police intended to prevent by prohibiting contact.
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The fact that a person is charged is sufficient to subject him or her to bail [36]. His Honour found that it is irrelevant whether a mental element attaches to the act, as the offence of breaching a bail agreement pursuant to section 17 of the Bail Act SA is one of strict liability. A bail agreement, in his view, not only seeks to ensure compliance but also requires the accused to take positive steps to ensure compliance.