Wotton v Wotton [2021] NSWDC 282

District Court New South Wales

Medium Neutral Citation: Wotton v Wotton [2021] NSWDC 282 Hearing dates: 13 April 2021 Date of orders: 13 April 2021 Decision date: 13 April 2021 Jurisdiction: Criminal Before: Montgomery DCJ Decision: Appeal dismissed Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court CRIME — Appeals — Appeal against sentence CRIME — Apprehended violence orders Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 16(1), 16(2) Criminal Appeal Act 1912 (NSW) s 18 Cases Cited: Fox v Percy (2003) 214 CLR 118 Category: Principal judgment Parties: Appellant, Craig Wotton Respondent, Crown Representation: Mr Angelovski, Solicitor for the Appellant Ms Doi, Solicitor Advocate for the Respondent/Crown File Number(s): 2019/00398398 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 21 October 2020 Before: Carney LCM File Number(s): 2019/00398398

Judgment 1. In this matter the Court was initially invited to read the transcript of the proceedings below and to watch several recorded domestic violence evidence recordings including recordings of the appellant who was the accused/defendant below. 2. The Court has been greatly assisted by the efficiency of Mr Angelovski for the appellant; he appeared in the court below. Efficiency of process in this way, that is, when the Court can rely on the accuracy of the candid description of evidence below given the appellant's legal representative, and who also directs the Court accurately to reasoning of the Learned Magistrate is to be applauded as being in the first order of legal representation complying with their first obligation, which is the obligation to the Court. 3. This process was available because the parties had joined concisely in the issues concerning the Apprehended Violence Order and by the approach taken by Ms Doi for the Crown who did not at any point, even when invited of her opportunity to do so, speak against Mr Angelovski's description of the evidence below. In this process the Court was relieved of the time required to read the transcript of two part days below, the whole of the reasons for judgment and to view the audio-visual evidence. 4. It is appropriate to mention particularly, because the Court would on Fox v Percy principles, and indeed, general principles of appeals against convictions under s 18 of the Criminal Appeal Act 1912 (NSW), generally refer to reasons of the Learned Magistrate in order to get a feel of the trial below in relation to the issues in this appeal. The two common assault charges were dismissed below. Before the Learned Magistrate, the appellant expressly made no submissions against the making of the Apprehended Domestic Violence Order, the subject of this appeal. 5. At the crux of the appeal is that the appellant embraces the Learned Magistrate's evaluation of the trial below as an accurate characterisation, of the evidence of parties and an accurate characterisation of the facts of this household of disharmony, as would be found on a reading of the whole of the evidence. 6. In fact, the appellant did not put his father, the person the subject of the ADVO, in fear of violence. The father is a dominant personality. He came home into the presence of the appellant. The appellant did not stalk him. The appellant did not seek him out. The appellant did not pursue him to intimidate him or to inflict violence upon him. Why then would an ADVO be made? I have been directed to s 16(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 7. The occurrence that brought about the two charges of common assault, in relation to each of which verdicts of not guilty were entered, was not an aberration. It was not a once off event. The evidence showed that the appellant was not the instigator of the relevant event. As I have said his father, Leon, was on the evidence the person who approached him toward the confrontation physically on that day. The father was triggered to do so because his other son, the appellant's brother, Brett, had telephoned the father in relation to the apparently long running trigger of, what on the evidence described to me I would summarise as a feud within the family; that being the time that the appellant occupied the shower within the house. 8. Indeed the level of that disharmony is not to be measured by the meniality of that issue. The degree of the disharmony and the level of force and risk characteristic of confrontation over the issue, was such that the father, Leon, had gone to the extreme measure of having a plumber place a water faucet or some other control apparatus in his bedroom of the house so he could turn off the water whilst the appellant was showering. 9. In a nutshell, the length of the appellant showering was a trigger for confrontation and disharmony in the family. Whether or not it was the only trigger is not necessary for determination of this appeal. However, the risk of confrontation is to be assessed in the surrounding context of family tension. The father, Leon, and the mother who gave evidence below, reside separately, occupying separate bedrooms within the house and there is ongoing animosity between the appellant and his brother Brett. 10. In a nutshell, this was not a one off occurrence but an unfortunate, and perhaps a high, point in a substantial confrontation, where the level of disputation between the appellant and his father, Leon, was of a high degree. It was also of some length of duration. 11. This is not to take sides in what is obviously a deeply felt family dispute. This is not to whitewash the wrongfulness of behaviour for instance of the brother Brett on the subject occasion, or any other member of the household. This is to focus on, as the evidence has been described to me by Mr Angelovski, the depth of confrontation below. 12. Section 16(2) of the Act has particular application to that circumstance. It says that despite the provisions of sub-section (1), which concern proof of intimidation or stalking or violence against the person, it is not necessary for the Court to be satisfied that the person for whose protection the order would be made in fact fears such an offence will be committed or that such conduct would be engaged in. 13. Mr Angelovski properly referred the Court to evidence in the Court below that the father, Leon, who is, I am told 92 or 93 years of age, told police that is he not fearful of the defendant. That evidence, whether it be by bravado or not when spoken, in the absence other evidence, goes to the fact of whether or not Leon fears that such an offence will be committed, or such conduct will be engaged in. 14. I repeat, that, in the circumstances of this case, sub-section (2) expressly provides it is not necessary for the Court to be satisfied of that fear in fact if, there is a reasonable likelihood that the defendant may commit a personal violence offence against the person; section 16(2)(c)(ii). The defendant is the appellant here. In the circumstances of the history of such confrontation, including as it was in this one instance of physical confrontation, whether hands were up in the fighting position or not, on the balance of probabilities there is a reasonable likelihood that the appellant may commit a personal violence offence against the person for the purposes of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and for those reasons I dismiss the appeal.