McDonagh v Hales

18 March 2004
Martin CJ, Angel & Bailey JJ
Ex tempore judgment

The earlier history of this matter is set out in the report entitled McDonagh v Hales decided by the Court of Appeal on 27 August 2003. After the appellant was resentenced by the Supreme Court on 28 August 2003, he again appealed to the Court of Appeal against the severity of the sentence claiming that the Supreme Court had erred in recording a conviction.

The appellant argued that in view of the extenuating circumstances in which the breach of the restraining order under the Domestic Violence Act occurred, no conviction should have been imposed. This fresh appeal was heard on 18 March 2004. The appellant appeared for himself as he had in the earlier proceedings. At the hearing of this appeal it became apparent for the first time that (i) at the time of the offending there was in existence a Family Court custody order which gave the appellant lawful custody of the children he had with his partner (the beneficiary of the order), (ii) at the time of the offending the children were living with his partner until he could find suitable accommodation, (iii) the appellant believed the order of the Family Court required communication between himself and his partner concerning the welfare of their children, and (iv) the circumstances giving rise to the offence involved the appellant taking his partner and one of the children to the hospital for treatment for a serious injury at the partner’s request.

The court unanimously allowed the appeal holding that the offence was of a trivial nature and that there were highly significant extenuating circumstances. Although the finding of guilt was confirmed, pursuant to section 7(a) of the Sentencing Act, the court dismissed the charge without recording a conviction.