A domestic violence protection order is issued against an abusive spouse, domestic partner or family member. The protection order usually contains an order prohibiting all contact between the abuser and the abused spouse or domestic partner or his children. Any violation of this protection order is a criminal act for which he or she can be prosecuted.
A 25 year old man had been living with his domestic partner with whom he had four children. On September 26, 2012 the police responded to a domestic complaint. When they arrived at the unit, the police heard shouting and banging.
The police saw the accused standing over his domestic partner who was cowering in fear. This violent incident was witnessed by the four children of the accused. The police also saw that the furniture in the unit had been upset and broken. The walls around the apartment appeared to have been punched through by the accused as well. The accused was arrested and a temporary protective order was issued against him.
He was allowed to post bail on condition that he desist from any contact his domestic partner. This condition was not embodied in the temporary protection order but in the order for bail. On November 4, 2012, the domestic partner called the police as the accused had entered the family home again and was breaking up furniture. He also attacked his domestic partner before leaving the house when he learned that his domestic partner had called the police.
He was charged with violating his bail and for breach of the temporary protection order issued against him. The accused pleaded guilty to these two charges. The Prosecutor submitted evidence of four prior criminal convictions of the accused. These four criminal convictions were for willful damage of property, 2 breaches of a domestic violence order, breach of a probation order, two additional counts of breaches of a domestic violence order, one count of possession of dangerous drugs and six counts of public nuisance. It was clear from the criminal history of the accused that he had a habit of breaching orders of the court, thus, evidencing contempt for legal authorities.
Taking into account this criminal history of the accused, the Magistrate sentenced him to imprisonment for nine months for each of the two counts of which he was charged. The sentences were to be served concurrently. This sentence was appealed by the accused on the ground that it is excessive.
On appeal, the District Court upheld the sentence imposed by the Magistrate. Right after he rendered his decision denying the appeal, the Court of Appeal issued a definitive ruling. The Court of Appeal held that in order for the Magistrate to consider the other violations of a protection order as aggravating circumstances to impose a more severe penalty, these must be duly alleged by the police in the notice to the accused that these prior violations will be alleged as aggravating circumstances.
In accordance with this decision of the Court of Appeal, the District Court imposed a sentence of three months’ imprisonment for each of the two violations and credited the accused with time already served.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.