Yet Another Non Conviction

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Yet Another Non Conviction

Mr. Michael Moussa, Principal of National Criminal Lawyers®, appeared before Sutherland Local Court this week.

Our client was charged with Destruction of property pursuant to section 195 of the Crimes Act 1900 (NSW). This offence is very serious and carries a maximum penalty of 5 years imprisonment. It is notably more serious that this incident was domestic violence related as police take a strong stance on domestic violence matters.

THE FACTS

Our client is married to his wife for over 5 years. The incident began in the kitchen where a heated argument erupted. The complainant in the proceedings threw various kitchen items at our client such as food and kitchen utensils. Furthermore, the complainant took our clients phone and threw it on the ground rendering it inoperable. Our client in response, took her phone and threw it on the ground too whereby the phone broke.

Neighbours heard the dispute and called police. Upon arrival, police investigated the matter and arrested our client with destruction of property pursuant to section 195 of the Crimes Act 1900 (NSW).

SENTENCING

A Judge or Magistrate must take into account a number of factors when sentencing an offender. Each offender and their personal situation are different. For a fair sentencing outcome, the Court must consider the facts of the offence, the circumstances of the offence, the subjective factors about the offender,  relevant sentencing legislation, case law and the general pattern of sentencing by the Courts for  particular offences.

When sentencing, there are considerations that make a sentence increase or decrease. Aggravating factors increase the sentence while mitigating factors decrease the sentence.

Section 21A of the Crimes (Sentencing and Procedure) Act 1999 (NSW) lists the aggravating and mitigating factors when sentencing.

Examples of aggravating factors include whether the offence involved the use of a weapon, committed in front a child, whether the crime was part of organised crime and if the offence involved multiple victims.

Mitigating factors include whether the offender was of good character, shows good prospect of rehabilitation and is unlikely to re-offend.

The above-mentioned are not all the aggravating and mitigating factors. Click here to learn more about sentencing.

THE SUBMISSIONS

Our client entered a plea of guilty on the earliest occasion and the court commented that this meant the victim was spared of giving evidence in a hearing.

Mr. Moussa in his submissions referenced our client’s good character and that it was the first time our client was charged with any offence. Our client had various subjective material such as character references that Mr. Moussa tendered into court. Learn more about character references here.

Further submissions were that our client fixed and paid for the phone that he admittedly destroyed as well as completing anger management course whereby our client out of his own will, enrolled and completed.

The prosecution’s position was to seek a conviction for our client as it is a domestic violence incident and the need for general deterrence in the community is paramount. Mr. Moussa fired back persuading the court that this incident is a one-off incident and that it is unlikely that our client will ever offend again noting that there was no physical contact between our client and the complainant.

THE RESULT

The Magistrate agreed that no conviction should be recorded and asked Mr. Moussa what he thought of a Conditional Release Order (CRO) without conviction for 18 months. While many other lawyers would take this sentence, Mr. Moussa did not stop there. He decided that he could go one step further and made further submissions to lessen the length of the CRO to 12 months.

One indication of his terrific performance is that the magistrate smiled in the course of Michael Moussa’s submissions. This is a testimony that not only does Mr. Moussa put a smile on our clients, he puts a smile on Magistrates too, showing that his ability to grasp the important elements of human connection reaches no bounds. Magistrates are human too and a smile from a Magistrate can mean the difference between a conviction and no conviction.

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