Mack v The Queen - [2021] NSWDC 645

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Mack v R [2021] NSWDC 645
Hearing dates: 21 September 2021
Date of orders: 21 September 2021
Decision date: 21 September 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Matter dealt with under s10(1)(a).

Catchwords:
Criminal Law – Appeal from Local Court – AVO prohibited contact directly between a man and his former wife – Couple had 2 children – Exchange of text messages about them – Man believed AVO had expired – Local Court accepted Appellant (man) had an honest belief that AVO had expired, but that belief was not reasonable – Alleged breaches were purely technical – Matter dealt with under s10(1)(a).

Legislation Cited:
Crimes (Sentencing Procedure) Act 1990

Category: Principal judgment
Parties: Patrick Fordham Mack – Appellant
Regina – Crown
Representation: G.W. Harrison – Appellant
D. Laird – Crown

File Number(s): 2020/00237092
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

06 April 2021

Before:

Reiss LCM

File Number(s):

2020/00237092

Judgment

HIS HONOUR: This is an appeal from a conviction recorded by Magistrate Reiss sitting in the Local Court at Burwood on 6 April 2021. The appellant Mr Patrick Fordham Mack was charged that between 5.20pm on 5 August 2020 and 9am on 12 August 2020 at Croydon in this State he did knowingly contravene a prohibition/restriction specified in an Order.
The Order was a final Apprehended Violence Order made by the Local Court at Manly on 24 May 2019. The order was for a period of two years from that date. The persons in need of protection were Alison Lott and James Leaver. One of the prohibitions contained in the order was this:

“You must not approach Alison Lott or James Leaver or contact them in any way unless the contact is through a lawyer.”

The appellant raised a defence of an honest and reasonable mistake of fact. His Honour held that there was an honest mistake of fact but that mistake was not a reasonable one. He convicted the appellant and imposed a fine of $500.

Background

The background to this matter is this. The appellant, Patrick Fordham Mack was previously known as Patrick Lott. He is currently 44 years of age. In the past he was married to Alison Lott whose maiden name was Sartor. Ms Lott is currently 45 years old. Mr Fordham Mack and Miss Sartor, as she then was, came together in 2006. They married. On evidence available from Ms Lott the couple separated in 2013 and divorced in 2015. It would appear that originally the divorce was amicable and there were consent arrangements between the couple for the care of their children. Those children were a daughter and their son. Mr Fordham Mack was a barrister. I understand that Mr James Leaver is also a barrister.

5 August 2020

On 13 August 2020 Ms Lott attended the Bondi Police Station and made a complaint of a breach of the AVO. She appears…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mack v The Queen

Details

AGLC: Mack v The Queen [2021] NSWDC 645
Case: [2021] NSWDC 645
Decision Date: 21 September 2021

CaseChat Overview and Summary

In the case of Mack v The Queen, the appellant was appealing against his conviction and sentence imposed by the Local Court of New South Wales. The appellant, a former husband, had been found guilty of contravening an Apprehended Violence Order (AVO) by engaging in prohibited contact with his former wife. The couple had two children, and the contact in question involved an exchange of text messages regarding the children. The appellant maintained that he had an honest belief that the AVO had expired at the time of the contact, a belief which the Local Court accepted as genuine.

The primary legal issue before the court was whether the appellant's belief in the expiration of the AVO was reasonable, as well as the applicability of section 10(1)(a) of the relevant legislation. The court had to determine whether the alleged breaches were purely technical and whether the appellant's actions could be justified under the circumstances. The court also needed to consider the impact of the appellant's belief on the reasonableness of his actions and the appropriate legal remedy.

The court held that while the appellant genuinely believed the AVO had expired, this belief was not reasonable. The appellant had failed to take reasonable steps to ascertain the status of the AVO, which rendered his belief unreasonable. The court found that the breaches were purely technical, as the appellant's actions were not driven by malice or intent to cause harm. Considering the nature of the breaches and the appellant's otherwise unblemished character, the court decided to deal with the matter under section 10(1)(a), resulting in the appellant being discharged without a conviction being recorded.

The final orders of the court were to deal with the matter under section 10(1)(a), effectively discharging the appellant without a conviction being recorded. This decision acknowledges the technical nature of the breach, the appellant's honest belief, and the absence of any malicious intent. The court's approach ensures that the consequences of the appellant's actions are proportionate to the circumstances of the case.

Orders

Orders of the court

Matter dealt with under s10(1)(a).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mack v R [2021] NSWDC 645
Hearing dates:	21 September 2021
Date of orders:	21 September 2021
Decision date:	21 September 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Matter dealt with under s10(1)(a).
Catchwords:	Criminal Law – Appeal from Local Court – AVO prohibited contact directly between a man and his former wife – Couple had 2 children – Exchange of text messages about them – Man believed AVO had expired – Local Court accepted Appellant (man) had an honest belief that AVO had expired, but that belief was not reasonable – Alleged breaches were purely technical – Matter dealt with under s10(1)(a).
Legislation Cited:	Crimes (Sentencing Procedure) Act 1990
Category:	Principal judgment
Parties:	Patrick Fordham Mack – Appellant Regina – Crown
Representation:	G.W. Harrison – Appellant D. Laird – Crown
File Number(s):	2020/00237092
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 06 April 2021 Before: Reiss LCM File Number(s): 2020/00237092