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Common Assault and Contravene Apprehended Domestic Violence Order (ADVO) avoids convictions

At Waverley Local Court earlier this week, our senior associate Adam Faro was successfully able to convince the Court to avoid the recording of a conviction for two offences...

Justin Wong

At Waverley Local Court earlier this week, our senior associate Adam Faro was successfully able to convince the Court to avoid the recording of a conviction for two offences of domestic violence.

Our client came to us at a dark time, having been charged with common assault (DV related), they were facing a conundrum as to what to do with their matter. Our client agreed that she had committed an offence, but the facts were completely wrong. Mr Faro guided them through the process, engaging in lengthy negotiations with the police to amend the facts to reflect the true events. Unfortunately, during this time our client was also charged with breaching their ADVO. Again the facts were inaccurate, but they agreed that they had committed the offence. Mr Faro then tackled both matters by engaging in discussion with the police simultaneously in both matters.

As a result, Mr Faro was able to see changes to both facts which meant that our client was able to plead guilty to what had actually happened, rather than an exaggerated Facts Sheet which did not represent the truth.

Mr Faro then consolidated the two matters and proceeded to sentence. In doing so, he structured the sentence to put into perspective the offending, and persuaded the magistrate that a ‘Conditional Release Order without conviction’ was the right and just outcome for our client.

A Conditional Release Order can take two forms:

  1. A Conditional Release Order WITHOUT conviction – this is pursuant to section 9(1)(b) Crimes (Sentencing Procedure) Act 1999;
  2. A Conditional Release Order WITH conviction – this is pursuant to section 9(1)(a) Crimes (Sentencing Procedure) Act 1999.

A Conditional Release Order without conviction replaces what used to be known as a ‘section 10 bond’. It is a promise to the Court for a period of time (maximum of two years) that you will not commit any further offences, and on that basis, you can avoid the recording of a conviction. It is an excellent outcome that ensures that a mistake does not have catastrophic consequences.

When deciding whether or not to deal with a matter by way of a Conditional Release Order without conviction, the Court considers the following criteria:

  1. Whether the offence is ‘trivial’;
  2. Your previous character – including your criminal record or importantly, the absence of any criminal record;
  3. Your age and health (including mental health);
  4. Any ‘extenuating circumstances’ (for example – provocation);
  5. Anything else which might be proper to consider (for example – the effect of a conviction on your employment).

In making his submissions for our client, Mr Faro was careful to ensure that as many of the above criteria were met. In doing so, the Magistrate was ultimately persuaded that the appropriate outcome was Conditional Release Orders without convictions for both, even though they were two offences on two separate days.