McDonagh v Hales [2003] NTSC 93

[1] This is an appeal against sentence. The matter has followed a tortuous path to reach this point but that history is not relevant for present purposes.

[2] On 25 January 1999 the appellant pleaded guilty to having, on 22 January 1999, failed to comply with a domestic violence order relating to his former spouse, Danielle Loretta Day. The maximum penalty for that offence is $2000 or imprisonment for a period of 6 months. He was convicted and fined $250 with a levy. It is the submission of Mr McDonagh, who appeared for himself, that he should not have been convicted and that he should not have been fined. He was less concerned by the fine than the conviction.

[3] Mr McDonagh and Ms Day had previously been in a relationship and there were children of that relationship. It seems that tensions developed between the two and in September 1998 they each agreed to court orders being made pursuant to the terms of the Domestic Violence Act. The order in relation to Mr McDonagh included that he:

"(1) not approach, enter or remain within 100 metres of any place where Danielle Day is living or staying;

(2) not approach, communicate with or contact Danielle Day directly or indirectly except through a solicitor or in accordance with a court order."

There were other provisions of the order but they are not relevant for present purposes.

[4] On 19 January 1999, at a time when the children of the relationship were temporarily in the care of Ms Day, one of the children, a young boy, fell and broke his arm. Ms Day was concerned and contacted Mr McDonagh seeking assistance to take the child to hospital. Mr McDonagh assisted by driving mother and child to the hospital. No complaint was made regarding that matter. However, on 22 January 1999, again at the request of Ms Day, Mr McDonagh attended in the area where she lived and again took her and the child to hospital for a further appointment with the medical adviser. On this occasion there was no suggestion of any emergency and the attendance of Mr McDonagh upon his wife, even though it be at her request, was clearly in breach of the order. Mr McDonagh was aware of his obligations and this is acknowledged in the following exchange with the learned sentencing magistrate:

"HIS WORSHIP: Mr McDonagh, you had to obey that restraining order. You have been to court before, several times. You know the legal processes. You could have come back last week or instructed someone to vacate the orders, given the circumstances.

[5] At the time of sentencing, Mr McDonagh was represented by a solicitor who provided information to the learned sentencing magistrate. It was submitted that the breach was a "technical" breach and that "the situation arose only because his infant son broke his arm in two places". It was submitted that although Mr McDonagh was aware of the domestic violence order he proceeded as he did out of concern for his son. It was also submitted that there was "really no evil intent here".

[6] At the time of the appearance in the Court of Summary Jurisdiction, Mr McDonagh had been in custody for a period of 3 days. He had been arrested on 22 January 1999 at the Karama Shopping Centre. It appears his conduct was regarded by the police officers concerned as being not only a breach of the domestic violence order but also a breach of the conditions of bail which then applied to Mr McDonagh in relation to separate offending. Mr McDonagh remained in custody until the matter came before the court on 25 January 1999. No reference was made to that circumstance in the sentencing remarks of his Worship and, it would seem, the reason for that failure was that the situation was not adequately explained by his solicitor to the court. As a consequence, when his Worship imposed the conviction and the fine of $250, he did so without regard to the fact that Mr McDonagh had already spent 3 days in custody in relation to this particular matter. In light of those circumstances Mr Carey, who appeared on behalf of the Crown, correctly conceded that the additional fine on top of the period spent in custody made the sentence manifestly excessive. The appeal against sentence must therefore be allowed.

[7] I am required to re-sentence the appellant. Mr McDonagh urges upon me that I should not impose a conviction and he supported that submission by referring to the fact that this was a "technical" breach, there was no violence or any threat of violence, he had spent time in custody and he acted in all the circumstances in the best interests of his child. Mr McDonagh addressed the circumstances surrounding his relationship with Ms Day and his history of conflict with police. He submitted that a conviction under the domestic violence legislation would constitute a serious blemish upon his record and create difficulties for him in relation to future employment.

[8] On the other hand, Mr Carey urges upon me that I should record a conviction but no further penalty. He referred me to the criminal history of Mr McDonagh and to the provisions of s 8 of the Sentencing Act.

[9] In my view it is appropriate that a conviction be recorded in the circumstances of this matter. Mr McDonagh was, at the relevant time, fully aware of his obligations under the domestic violence legislation. Although his response on 19 January 1999 was understandable, there was no reason why, in the period between 19 January 1999 and 22 January 1999, he did not have the order varied. He proceeded as he did without regard to the order.

[10] This is not the first conviction against the name of Mr McDonagh. At the relevant time he had convictions for traffic offences, possession of unregistered firearms, criminal damage and for indecent assault. In relation to the conviction for indecent assault, he had been sentenced to 9 months imprisonment with that sentence suspended upon him entering into a good behaviour bond.

[11] The domestic violence legislation is designed to confront and deal with a serious problem in the Northern Territory of Australia. Orders made under the legislation are not to be treated as being able to be ignored at the whim of either the person who is the subject of the order or any person it is designed to protect. In this case Mr McDonagh had ample time to have the order varied or, alternatively, find some other way of dealing with the problem that confronted him, but he chose to proceed in breach of the order. Whilst that breach is not of a serious nature, in my view it is of sufficient moment to require that a conviction be recorded.

[12] The matters to be taken into account when determining whether a conviction should be recorded are addressed in s 8 of the Sentencing Act. I have had regard to the matters set out in that section in determining that a conviction is warranted.

[13] In all the circumstances I allow the appeal and set aside the sentence. I re-sentence the appellant by imposing a conviction but I refrain from imposing any further penalty.