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Sec10 Granted in Domestic Violence Matter with Child Present

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Our Solicitor, Nicholas Hardy-Clements, represented a 40-year-old man at Parramatta Local Court in relation to a common assault domestic violence related offence pursuant to section 61 of the Crimes Act 1900 (NSW).

Domestic Violence in the presence of a child
In brief, our client and the victim have been together for approximately 15 years. The victim had recently given birth to their child. Like most doting fathers, our client was focused on taking care of his wife and their child, often neglecting his own mental health. That being said, mentally, both he and his wife were adjusting to life as parents. Very late one evening, both our client and the victim began arguing over raising the child. As a result, the victim began making arrangements to stay overnight at a family member’s house, which upset our client to a point where he slapped the victim once to her face. A neighbor overheard the argument and called the NSW Police.

Upon conferencing our client and obtaining instructions, we advised there were several aggravating factors in relation to the incident. The offence involved the actual or threatened use of violence, was committed in the presence of a child and in the home of the victim. Moreover, because the offence was domestic violence in nature the court would treat the offence as serious. Without proper preparation and care being given to the matter, it was very likely our client would receive a criminal conviction.

On the evening of the offence, the NSW Police attended at our client’s residence at 3:00am. When speaking with the NSW Police that morning, our client immediately expressed sadness in himself and apologized to his wife and the NSW Police. Police obtained a domestic violence evidence in chief from the victim before cautioning our client and questioning him on body worn camera. Our client made full and frank admissions to assaulting his wife due to how frustrated he has become. Understandably, our client did not hesitate to instruct his solicitor to formally enter a plea of guilty to the offence and to set his matter down for sentence.

At the sentence hearing, Mr Hardy-Clements assisted the client to prepare a number of character references and drafted detailed written submissions, of which canvased the mitigating factors relevant in this case. It was submitted the injury, emotional harm, loss or damage caused by the offence was not substantial, the offence was not part of a planned or organised criminal activity, our client did not have any criminal record, our client was of prior good character and was unlikely to re-offend. In addition to this, our client had good prospects of rehabilitation as he had attended several one-on-one psychology sessions for behavior and there was good evidence of remorse.

Mr Hardy-Clements submitted on the purposes of sentencing for domestic violence matters, of which can be relevantly distilled in terms of emphasis on rehabilitation, punishment and deterrence along with added consideration regarding the appropriateness of a term of imprisonment and/or a supervised community-based order. Ultimately it was submitted that consideration be given to Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 and that the Magistrate could deal with the matter without proceeding to conviction.

After considering all the material before the court and Mr Hardy-Clements’ detailed submissions, the Magistrate sentenced our client without proceeding to conviction and imposed a Conditional Release Order for a period of 2 years in accordance with s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999. This was a great result for both our client and our firm.

This case illustrates the importance of experience and teamwork offered at Jameson Law. At Jameson Law, we take the time to understand our client’s individual circumstances. The team is always working hard to ensure cases are prepared properly and presented in a way that ensures the best outcome.

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Role Of Victim Impact Statements In Sentencing

  Summary Victim impact statements are important for the criminal process as they can influence the sentencing courts when considering penalties and punishment. Despite the fact they are essentially based on opinion, victim impact statements are written to describe the physical and emotional suffering crime has affected. A victim impact statement can be written by either the primary victim or the family, friends or other affected victims of the primary victim. A victim impact statement can be presented to the court whether the offender pleads guilty or not guilty as it is more relevant to sentencing than it is for proceedings. If you are unsure about anything to do with victim impact statements then you should seek legal advice as soon as possible. Jameson Law have a team of expert criminal lawyers ready and willing to assist you with anything you need. What Is A Victim Impact Statement? A victim impact statement allows the victim a voice within the criminal proceedings. It is a chance for the victim to explain their pain, suffering or mitigation of a crime committed against them. It is important for the court to understand the impact the criminal offending had on the victim so it can factor into two important issues; whether there is a continued risk to the community and whether there should be a harsher or lighter penalty considered. The court is able to use a victim impact statement to factor into sentencing matters for the defendant. At the sentencing hearing, the victim or prosecution will read the victim impact statement aloud to demonstrate the emotional suffering the victim has endured. If the defendant has plead not guilty but been found guilty of the offence, the victim impact statement can be a powerful tool. It can signify to the court the lack of remorse shown by the defendant towards the victim.   Case Study Kayla is the victim of a violent assault where she suffered a fractured skull, broken cheek bones and a broken arm. She was in significant distress at the time the police arrived at the scene. Kayla has spoken to the prosecution about wanting to provide a victim impact statement to the court. Kayla has been having nightmares, flashbacks and anxiety attacks since the assault due to the harm suffered. On top of the physical harm, there is deep emotional harm which she may never recover from. The court process so far has taken its toll on Kayla and she requires the support of both family members and a support person during the court case. The court finds her victim impact statement to have influence in relation to the defendants sentence, The court can see that Kayla has suffered harm at the hands of the defendants and that it has irreversibly changed her life. Is A Victim Impact Statement Required? There is no requirement for a victim to provide a statement about what they have suffered and how it is effecting them. In many instances, it can be too painful for the victim to even contemplate writing a statement or they simply elect not to do so. It can be confronting for a a statement to be read aloud which broadcasts the emotions and suffering of an already vulnerable individual. There are some who do not want their offender to become aware of how much pain, harm or suffering they have caused to their life, particularly if it is someone known to them. Ultimately, the facts, circumstances and harm suffered are presented to the court by the prosecution during the trial, if required, and those factors are taken into account when the determination is made. Who Can Write A Victim Impact Statement? Usually, the term “Victim Impact Statement” leads people to believe that the physical victim of the offence is the only one who can present to the court how the offending has affected them. Yet this is not the case. 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Court Procedures in Sydney

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Defending Against Domestic Violence Charges

  In a nutshell… Domestic violence is a serious criminal law matter which can leave deep emotional and physical scars. Domestic violence refers to the use of physical, emotional, sexual financial or psychological violence against a spouse, partner, child or close relative. Of the five different categories of violence, charges can be made up of multiple different categories. Domestic violence charges are serious, and they can result in severe penalties. if you have been charged with a domestic violence offence, then you will need to obtain advice from an experienced domestic violence lawyer. Domestic Violence Defences Self defence is one of the most challenging aspects to domestic violence. It is common for a domestic argument to involve violence perpetrated by both parties; therefore, it is difficult to know who the victim is and who the perpetrator is. Self defence means a proportionate response to violence to diffuse a threat of harm. The level of violence required to diffuse the threat is different depending on the situation. For example, an individual may punch their partner in the face and their partner may need to defend themselves. Their defence may be to punch back which would be a proportionate response however to stab the individual would be a disproportionate response. Further criminal charges can also result including grievous bodily harm and assault. False Accusations In many instance, if not all, the alleged perpetrator will deny the existence of violence. There is a percentage of family violence cases which are false but it can be difficult to know whether the violence has or has not occurred. Physical violence has a higher chance of being proven given its nature and the usual existence of physical evidence (i.e. bruising, lacerations, etc). Emotional or psychological violence however, is not as easily proven and it can be word against word. It can therefore be easy for an alleged victim to make a false allegation and have domestic violence charges laid. A domestic violence conviction can result in lifelong consequences which follow and individual. For example, an individual could be accused of calling their partner a “fucking bitch” and making verbal threats to kill them. These threats could have created a genuine fear of harm which is simply word against word because there is no hard evidence of the threat. The threat could have severely impacted the life of the victim because they have increased anxiety and fear, yet they will have difficulty proving that this is the case. Insufficient Evidence A domestic violence case is ultimately dependent on evidence and sometimes, no matter the honesty of the victim, the evidence simply does not exist. A large amount of domestic violence is perpetrated in private, without witnesses, and there is no record. 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A domestic violence trial under criminal law will be heard in the appellate court, local court or supreme court depending on the severity. A trial in the Supreme Court will be subject to a jury determination. It is the role of the prosecution to prove their case beyond a reasonable doubt. Domestic Violence cases heard in the Family Court however are different. No criminal charges can result from a family court trial alone as it is a completely different jurisdiction. If an individual has been accused of domestic violence then this can have flow on effects for their family law matters. A domestic violence charge can indicate risk to either their spouse, partner or child and the court must determine the best course for the family using the best interests principle. Procedural Errors Procedural errors are one of the leading causes of mistrials. A mistrial occurs when the trial or evidence has been compromised in some way and it would be prejudicial to continue. 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