Charges: Contravention of domestic violence order (DVO) x 1; Possess restricted items x 1; Possess explosives x 1; Assault or obstruct police officer x 1.
Appeal type: Appeal against sentence from Magistrates Court.
Facts: The appellant was subject to a DVO with the complainant named as the aggrieved (). The appellant sent threatening text messages to the complainant, and took their child out of school (). This formed the basis of Charge 1, contravening a DVO. When the police arrived at the appellant’s house, he refused to cooperate, and appeared to reach for a knife while holding the child (). This formed the basis of Charge 4, obstruct police officer.
The appellant was sentenced to six months’ imprisonment with a non-parole period of two months ().
Issues: The defendant appealed on the grounds that: the sentence was manifestly excessive; the Magistrate took irrelevant matters into consideration by relying on the documentation from the domestic violence order; the Magistrate fettered her objectivity; and the Magistrate conflated the facts of Charge 1 and Charge 4 (-).
Decision and Reasoning: The appeal was allowed. Horneman-Wren SC DCJ concluded that the Magistrate erred in conflating the factual issues in charges 1 and 4 (). The other grounds of appeal were not made out. Horneman-Wren SC DCJ considered that a shorter sentence would have been appropriate, but since the appellant had been in custody for 7 weeks, his Honour recorded a conviction and did not further punish the appellant ().