AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 6 September 2016

Bach v R

[2016] NSWDC 278

Domestic & family violence
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE APPELLANT OF PRIOR GOOD CHARACTER

Citation: Bach v R [2016] NSWDC 278
Court: District Court of NSW
Date: 6 September 2016
Judge: Neilson DCJ

Background

The appellant, a Vietnamese national studying in Sydney, was served with an apprehended domestic violence order (AVO) by police at 12:05 pm on 5 April 2016. The AVO had been obtained by her former partner, a teacher at an institution where she had previously studied. Within fifteen minutes of being served, the appellant walked to his apartment and knocked on his window sill.

The former partner identified the appellant, called police, and the same officers who had served the AVO observed her walking away from his residence, still holding the AVO papers. The appellant pleaded guilty to knowingly contravening a prohibition contained in the AVO at the earliest available opportunity.

The Local Court imposed a fine of $1,100. The appellant appealed to the District Court on the ground that the sentence was excessive.

  • Whether the $1,100 fine imposed by the Local Court was excessive in all the circumstances
  • Whether the appellant's prior good character, financial circumstances, and the technical nature of the breach warranted the substitution of a section 10 good behaviour bond (that is, a dismissal or conditional release without proceeding to a formal conviction) under the Crimes (Sentencing Procedure) Act 1999

Decision

Neilson DCJ identified several mitigating features that, taken together, pointed strongly toward a section 10 outcome. The appellant had no criminal record in Australia or in her home country of Vietnam. She was described as a person of prior good character from a respected family background, who had come to Australia for tertiary study.

The Court also accepted that the breach was technical in nature. No harm to the former partner was established and no inconvenience was disclosed. His Honour observed that it was possible the appellant did not understand the nature of the AVO when she walked to the former partner's apartment so shortly after being served, and that she may have been confused and seeking clarification.

The appellant's financial position added further weight to the section 10 outcome. She subsisted on approximately $500 per week remitted by her parents from Vietnam, and the $1,100 fine exceeded two weeks of her net income. Medical evidence also supported the view that the appellant had suffered significant anxiety throughout the proceedings, requiring medication and clinical management.

The Crown did not oppose the application of section 10. His Honour set aside the conviction and fine, and instead released the appellant on a good behaviour bond for 18 months without proceeding to a conviction.

Orders Made

  • The conviction recorded and the sentence imposed by the Downing Centre Local Court on 13 April 2016 were set aside
  • Pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, the appellant was released on a good behaviour bond for 18 months from 6 September 2016, without proceeding to a conviction
  • Conditions of the bond:
  • To appear before the Court if called upon at any time during the bond
  • To be of good behaviour
  • To reside at the specified address (redacted)
  • To advise the Registrar by prepaid registered post of any change of residential address during the term of the bond

Key Takeaways

  • The District Court applied section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to substitute a good behaviour bond where the offending was technical, no harm resulted, and the offender was of prior good character.
  • A fine can be regarded as excessive where it substantially exceeds the offender's weekly net income, particularly where the offender has limited financial means.
  • Prior good character remained a significant mitigating factor even where a guilty plea was entered to a criminal charge, and the absence of any prior record in Australia or overseas was specifically noted by the Court.
  • Where an AVO breach occurs within minutes of service and the circumstances suggest possible confusion about the nature of the order, the technical character of the contravention may be a relevant consideration in sentencing.
  • Unchallenged medical evidence of anxiety and emotional distress connected to the proceedings formed part of the factual matrix informing the sentencing discretion, consistent with the finding that the appellant was upset and confused at the time of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b)

Cases cited: None cited in the judgment.