Long v Eid

[2008] NSWDC 367

CITATION:	Long v Eid [2008] NSWDC 367
JUDGMENT DATE:	24 April 2008
EX TEMPORE JUDGMENT DATE:	24 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	HH orders an apprehended violence order for 12 months to date from the 24th of April 2008. HH orders the mandatory conditions of A (HH ordered after the word relationship, the name Dion Eid be inserted) B and C, in addition orders of 3,5,6 and 11.
CATCHWORDS:	Criminal Law - Appeal from Local Court decision - domestic violence application refused - issue for determination - whether level of intimidation sufficient to warrent making ADVO - criterial for determining sufficiency to warrent ADVO - meaning of "safety" considered - meaning of "protection" considered - assessment of changed circumstances since refusal of application for ADVO - absenceof any subsequent incident - ADVO made for 12 months.
LEGISLATION CITED:	Crimes (Domestic and Personal Violence) Act 2007
PARTIES:	Margaret Long Michael Maassaad Eid
FILE NUMBER(S):	2008/00000625
SOLICITORS:	Plaintiff: Ms Graycar Defendant: Mr Jurd

JUDGMENT

1. Margaret Long appeals to the District Court by way of making complaint to the court under the Crimes (Domestic and Personal Violence) Act 2007 for an apprehended domestic violence order.

2. The complaint that originally initiated all this appears to have been made on 31 July 2007. My understanding of the complaint was that it was made on behalf of the applicant by the police having received a complaint from her on 25 June 2007.

3. Evidence was given before her Honour Magistrate Hannam in the Local Court at Parramatta on 20 November 2007. Her Honour in an ex tempore judgment, after evaluating the evidence, came to a view that on the evidence the appellant had reasonable grounds to fear intimidation, in fact feared intimidation, but the intimidation which had been displayed to her the complainant, was in the magistrate’s view of the lowest order primarily because it constituted bad language and verbal abuse. She then came to a view that because the intimidation was of that order it was insufficient to warrant the making of an apprehended domestic violence order.

4. There were four episodes that were ventilated before her Honour. They included allegations of derogatory language, foul language on telephone and face to face. Specifically, one of the allegations included an episode of spitting. Assuming as I do, and it seemed to me as the magistrate all but found, the spitting incident was deliberate and it constituted an assault which did not cause and could not have caused physical harm but which did cause and could cause a sense of demeaning. It can also of course constitute intimidation.

5. I accept the magistrate’s findings as being appropriate in respect of the complainant having reasonable grounds to fear intimidation and in fact fearing intimidation as being made out before her and on the transcripts being made out before me. Her Honour put the intimidation as at the lowest order. It seems to me that when one looks at intimidation there are a number of ways to measure the seriousness of it.

6. Firstly, if I can put it this way, the victim of the intimidation is an important part of the criteria of determining the seriousness of the intimidation. To intimidate a child or a vulnerable person is obviously far more serious it seems to me than to intimidate a soldier or a man of strong will. Secondly, the frequency with which the exercise in intimidation is embarked upon is a criteria that must be able to determine the seriousness of the intimidation. Thirdly, the methodology used, for instance, the use of physical force, the use of blackmail, holding someone prisoner, their physical containment, the use of threats, the use of weapons, maliciously damaging property, those levels of physical force to achieve intimidation obviously would make it more serious.

7. The objective sought to be achieved through the intimidation is another criteria that seems to me one impacting upon its seriousness. If intimidation is being sought to achieve a criminal end, such as the handing over of money in a blackmail situation, that clearly must be much more serious than intimidation simply seeking to keep somebody down.

8. Intimidation designed to physically harm or emotionally harm must clearly be more serious than intimidation that is simply expressed in a moment to get someone to back off in the heat of an argument.

9. Against that criteria the intimidation that is involved here is intimidation of a low order. The victim is a woman and is the partner and is perhaps more vulnerable than some, but certainly stronger than would be a child or people of frail emotional stability. The intimidation was achieved by words of abuse rather than words of threat other than on one occasion when it was said he would kill her, but generally words of abuse and words of a demeaning nature.

10. I suspect but could not be satisfied beyond reasonable doubt it seems to me or certainly on the Briggenshaw and Briggenshaw onus that it was designed to harm, but it was certainly designed to demean. It was not being used for any criminal purpose, but for the spitting incident there was no other physical approach.

11. So where her Honour said it was of the lowest order it seems to me that I do not go that far but I do go to a point where it was low in the order. Her Honour sought to apply the provisions of the Act. Section 9(4) of the Crimes (Domestic and Personal Violence) Act 2007 requires that a court or a person who exercises any power conferred by or under the Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in the section, and in s 1 the first of the objects is to ensure the safety and protection of all persons.

12. I am of a view that her Honour took a more narrow view of what the word “safety” meant and hence then what the word “protection” meant than is implicit in the objects of the Act. It seems to me that the concept of “safety” and therefore the concept of “protection” relate not just to the physical safety but also to the mental safety and emotional stability of all persons.

13. It was argued in submissions that her Honour was reluctant because of the use of the intimidation to make the order. It seems to me that is not quite so and in fairness to her Honour it was because the intimidation was of the lowest order that she did not come to a view that the conduct was sufficient to warrant the making of the order.

14. I am satisfied that on the day [this matter was] before her Honour, given the evidence that was before her Honour, the conduct was sufficient to warrant the making of an order in order to protect the complainant from intimidation at the hands of the respondent for the protection of her mental and emotional wellbeing.

15. Since that time there has been a further passage of five months. The real issue for me then is to consider whether in the opinion of the court the material before her Honour is still sufficient to warrant the making of the order. I have not come to this position easily, but I have determined that it is sufficient to make an order. But recognising that there has been eleven months, at least before me, without any apparent incident occurring I only intend to make an order for a period of a further twelve months. At the expiration of that order it will be open to the complainant, if she chooses, of making a further application and having that application determined on its merits.

16. The order that I will make will be that the order will be for a period of twelve months from today. The mandatory orders (a), (b) and (c) will apply.

Do you want to be heard on any one of 3, 5, 6 or 11, Mr Jurd?

JURD: No, your Honour.

HIS HONOUR: The additional orders that will be made will be in terms of 3, 5, 6 and 11. The section seems to require me to nominate the son as a person to be included as a protected person. It seems to me that is already covered in 1(a), but for more abundant caution the son’s name should be inserted there.

17. In making the order I want to make it clear that that is not meant to in any way to inhibit the contact between the father and son. It seems in fairness to both parties that they are anxious to pursue that relationship, but I see nothing in any of the material before me that gives me cause to criticise, other than perhaps bad behaviour before the boy, but to criticise in any way the father’s acts or actions towards the son.

Any other order?

GRAYCAR: No, your Honour.