Mack v R [2021] NSWDC 645

Mack v R [2021] NSWDC 645

The breaches of the AVO by the appellant were purely technical in nature and arose from communications regarding the welfare of his children with the protected person. The appellant had an honest if mistaken belief that the AVO had expired, and there was no suggestion the communications caused harm or distress. In the circumstances, the conviction and penalty should be set aside and the charge dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1990.

Jurisdiction
Australia
Judgment Date
21 September 2021
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in Local Court
Outcome
Conviction and penalty set aside; charge dismissed without conviction under s 10(1)(a) Crimes (Sentencing Procedure) Act 1990.
Legal Topics
['appeal From Local Court' 'apprehended Violence Order (avo)' 'contravention of Avo' 'honest and Reasonable Mistake of Fact' 'section 10(1)(a) Crimes (sentencing Procedure) Act 1990' 'sentencing Discretion']
['criminal Law'] ['appeal From Local Court' 'apprehended Violence Order (avo)' 'contravention of Avo' 'honest and Reasonable Mistake of Fact' 'section 10(1)(a) Crimes (sentencing Procedure) Act 1990' 'sentencing Discretion']

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Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence in Local Court

Legal Issues

  1. 1 ['Whether conviction for breach of Apprehended Violence Order should be set aside on appeal' 'Whether communications constituted a technical breach of AVO' 'Whether appellant had an honest and reasonable belief that the AVO had expired' 'Whether discretionary relief under s 10(1)(a) Crimes (Sentencing Procedure) Act 1990 should be granted']

Ratio Decidendi

The breaches of the AVO by the appellant were purely technical in nature and arose from communications regarding the welfare of his children with the protected person. The appellant had an honest if mistaken belief that the AVO had expired, and there was no suggestion the communications caused harm or distress. In the circumstances, the conviction and penalty should be set aside and the charge dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1990.

Court Disposition

Conviction and penalty set aside; charge dismissed without conviction under s 10(1)(a) Crimes (Sentencing Procedure) Act 1990.

Orders

  • ['Conviction recorded and penalty imposed by the Local Court at Burwood on 6 April 2021 set aside.' 'Charge dismissed without conviction pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1990.']