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District Court 21 September 2021

Mack v R

[2021] NSWDC 645

Public order & justice offences
CRIMINAL LAW APPEAL FROM LOCAL COURT COUPLE HAD 2 CHILDREN EXCHANGE OF TEXT MESSAGES ABOUT THEM MAN BELIEVED AVO HAD EXPIRED ALLEGED BREACHES WERE PURELY TECHNICAL

Citation: Mack v R [2021] NSWDC 645
Court: District Court of New South Wales
Date: 21 September 2021
Judge: Neilson DCJ

Background

The appellant was a former barrister, previously married to the protected person named in a final Apprehended Violence Order (AVO) made by the Local Court at Manly on 24 May 2019. The AVO prohibited him from approaching or contacting the protected person in any way unless contact was made through a lawyer. The order was in force for two years from that date.

Between 5 August and 12 August 2020, the appellant exchanged a series of text messages with his former wife. The messages concerned their two children: one message informed her that their daughter was being tested for Covid-19; others related to the children's Sunday pick-up arrangements, a mislaid phone, and a social situation involving their daughter. The former wife initiated at least one of the exchanges.

The appellant was charged with knowingly contravening the AVO. He raised a defence of honest and reasonable mistake of fact, arguing he believed the AVO had expired before the relevant messages were sent. The Local Court at Burwood accepted his belief was honest but found it was not reasonable, recorded a conviction, and imposed a $500 fine. The appellant appealed to the District Court.

  • Whether the Local Court erred in finding that the appellant's mistaken belief about the AVO's expiry, while honest, was not a reasonable one.
  • Whether, on the particular facts, a conviction was the appropriate outcome given the technical nature of the breaches.
  • Whether the charge should be dismissed without conviction under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Decision

Neilson DCJ examined the content of each exchange in detail. The messages were friendly, child-focused communications. The Covid-19 message was sent after a doctor advised that all recent contacts of a suspected infected person should be notified, a circumstance the District Court noted might also have supported a defence of necessity. The remaining messages concerned the children's Sunday pick-up, a lost phone, and a piece of social news about their daughter.

His Honour found the breaches to be "purely technical." There was no suggestion that any of the messages interfered with the mental or physical health of the protected person, threatened her, harassed her, or caused her distress. His Honour observed that the domestic violence legislation appeared to have been deployed for purposes beyond its protective function.

The District Court set aside both the conviction and the penalty imposed below. Rather than re-entering a conviction, his Honour dismissed the charge without conviction under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. His Honour noted that the technical breaches should not be allowed to operate as a means of embarrassing the appellant in relation to his contact with his children.

Orders Made

  • The conviction recorded and the penalty imposed by the Local Court at Burwood on 6 April 2021 were set aside.
  • The charge was dismissed without proceeding to conviction, pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A breach of an AVO prohibition on direct contact may still attract a s 10(1)(a) dismissal without conviction where the breaches are purely technical, the communications are child-focused, and there is no evidence of harm, harassment, or distress to the protected person.
  • The District Court accepted that a genuine (if ultimately unreasonable) belief in the expiry of an AVO is relevant to the overall picture of the offending, even where it does not satisfy the legal test for the honest and reasonable mistake defence.
  • Where an AVO contains no carve-out for co-parenting communications, any direct contact between parties, however benign in content, may technically constitute a breach. The absence of such a carve-out did not prevent the District Court from characterising these breaches as purely technical in the circumstances.
  • Neilson DCJ remarked that the Covid-19 notification message may have supported a separate defence of necessity, though this point was noted in passing rather than determined as a holding.
  • In cases involving competing parenting obligations and child welfare communications, courts retain the discretion under s 10(1)(a) to dismiss charges without conviction where the circumstances make a recorded conviction unjust.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
- NSW domestic violence legislation (referenced generally)

Cases: No cases were cited in the judgment.