Our client was charged with 3 instances of Stalking. At the time of the alleged offending, our client was only 20 years old. The offences were said to comprise stalking because they involved repeated and unwanted contact by our client towards the complainant, and because on other occasions, it involved an element of keeping the complainant under surveillance.
The offences were alleged to have occurred over a period of approximately 7 months. The offending did not involve repeated and persistent phone calls. Nor did the offending involve threatening behaviour.
Our client consented (on a without admission basis) to an Intervention Order in favour of the complainant. This order was for 12 months. Nine months after the order was made, charges (Stalking x 3) were filed in the Magistrates’ Court. They were later served on our client and required him to attend court in October 2015, approximately 2 weeks before the expiry of the IVO. Our client had at all times abided by the IVO.
Through protracted negotiations with the prosecution, our client was able to obtain a diversion. A diversion is a court outcome which enables an accused to avoid a criminal record. The need to avoid a criminal record was especially important for our client as he was only 21 and had an otherwise good work history, and had a bright future.
Stalking is a serious offence and would have had awful consequences for our client. The difficulty with a finding of guilt (whether with or without conviction) for the offence of stalking is that it is not possible for a third party (for example a potential employer) to discern from the criminal record where precisely the alleged stalking sits on the wide continuum of behaviours which, at law, can amount to stalking. The offence of stalking often connotes the most sinister of circumstances in the minds of the broader community.
In this case, it was difficult to see that charging our client with stalking was a proportional response, or was in the public interest, having regard to his age, lack of criminal history, the lack of aggravating features of the offence, and his compliance on the IVO. Furthermore, the charges had come so long after he took a sensible and pragmatic approach to the complainant’s wishes by agreeing to an IVO in the first place.
It should also be noted that there was a real argument as to whether the behaviour complained of could have met the statutory criteria for stalking having regard to several factors. Sensibly, and after the matter proceeded through several case conferences and a contest mention, the prosecution agreed to a court diversion.
An application proceeded and our client presented several compelling testimonials from previous employers and family friends who all attested to his good character. The Court accepted our client’s behaviour was borne out of immaturity rather than anysinister intent. The court also accepted our client’s good character, and that he was most unlikely to return to court. This court outcome means that court client avoids being burdened with a criminal record for stalking.
Our client was charged with a variety of offences, mostly property-related: Burglary, Theft, Handle/Receive Stolen Goods, Contravene Intervention Order, and Make Threat to Kill. With each offence, an associated Breach of Bail charge was also laid.
The burglary offence involved a commercial premises, a modest sum of money (less than $200) that was taken, and the fact that it was planned but not as well executed. The Threat to Kill charges concerned our client’s father and these charges were eventually withdrawn through a process of negotiation with the police.
Our client had been placed on bail for an earlier offence and had breached his bail either by further offending or by non-compliance with a bail condition (for example, failing to report to a police station). In total, our client pleaded guilty to over 15 offences. He was 46 years old at the time of the offending and had a few prior court appearances for criminal offences, which had resulted in without conviction outcomes.
• Theft from motor vehicle
• Attempt to commit indictable offence
• Commit indictable offence whilst on bail
Our client was placed on a Community Corrections Order for 9 months, with conditions to complete 100 hours of unpaid community work and to attend counselling for drug use and mental health as directed by Community Corrections. This was a good outcome as the allegation of burglary was a serious example of a break and enter on a commercial premises.
Another aggravating feature of the offending was that our client had committed offences whilst on bail. We made submissions to the court explaining that our client had succumbed to drug use (ice) after a difficult marriage break-down. Prior to his marriage ending, he had not been to court for any offences and had worked successfully for many years as a painter.
Despite our client’s difficulties, and the uncertainty as to how the court will deal with his offending, he sought out counselling for his long standing mental illness (depression) and had abstained from drug use. Reports were prepared during the preceding months before sentencing to prove his on-going participation in counselling. He also enjoyed good family support (who attended court on each and every occasion his cases were listed).
Our client’s remorse for his offending was very apparent in the police questioning of him. Our client did not have a significant criminal history and had no priors for burglary. He had also pleaded guilty at an early stage to the offences (save the Threat to Kill which had been withdrawn)
Following negotiations with the police, the Unlawful Assault and one of the charges of Breach of Family Violence Intervention Order were withdrawn. The client pleaded guilty to the two remaining charges.
Our client was extremely worried on the possible effect of a recording of a conviction on his prospects for future employment. There was a real risk of the recording of a conviction due to the seriousness with which family violence related offences are treated by the courts.
We sought a sentence indication in respect of the remaining charges (as the police indicated they would withdraw the Assault and one of the Breach IVO charges if the client pleads guilty). Following submissions, her Honour imposed a good behaviour bond without conviction.
SeyitErciyas provided legal representation for the client.Lengthy written submissions were required to address the working with children’s check unit concerns as to whether our client was a fit and proper person to hold the pass until the conclusion of his criminal matters. This was particularly important to him as he required the clearance to remain employed.
We were able to write lengthy written submissions on the client’s behalf addressing the working with children’s check unit concerns and convincing them to reconsider their intention to suspend. They overturned their decision which allowed our client to continue his employment.
Our client had a long history of depression and other serious mental health disorders. At the time of her offence, her marriage of 30 years had ended in circumstances where she believed her former husband had betrayed her. She was also heavily intoxicated at the time of her offences. Our client had no prior criminal history
Seyiterciyas represented the client at the Melbourne Magistrates’ Court.
Following several case conferences, the charges of Drive in a Dangerous Manner and Assault Police were withdrawn. Our client had also escalated her counselling sessions with her treating psychiatrist since the incident. Reports evidencing the significant gains our client had made through regular counselling were obtained.
In addition, several high quality character references were obtained. As the Drive Dangerous charge was withdrawn, the matter was again recommended for diversion through a process of negotiation with the prosecution. This was an exceptional outcome as our client was able to continue her long standing employment as an early childhood educator. She was able to maintain a clean working with children card.
Clearly the outcome was due in large measure to the extensive rehabilitation our client had undergone as evidenced by the substantial material tendered to the magistrate. This outcome would not have been achieved were this material not tendered to the court. The magistrate was ultimately persuaded that despite a concerning set of circumstances, that it was in all the circumstances appropriate to accede to our diversion application.
The prosecution relied heavily on the DNA evidence which suggested our client’s DNA had been found on the complainant. We argued, from the beginning of the case, that there were flaws with the testing process and that the DNA results should be ruled as inadmissible. We sought expert opinion and reports in the running of this argument.
Ultimately, the prosecution discontinued the matter before it got to trial. There will always be inherent dangers in prosecuting people on DNA evidence alone. DNA evidence is only circumstantial evidence, and it is fallible. We were able to demonstrate this in this case. Had our client been found guilty of this offence, he would have faced years in gaol. Instead, the charges have been discontinued and he has been released from custody.