A Darwin judge has proved he's only human, after responding to a legal aid lawyer's suggestion that his client wanted bail in August to attend his sister's funeral.
While reading through the alleged statement of facts on two domestic violence attacks in May and June this year for a sentencing indication, the legal aid lawyer's timing on the bail idea unfolded awkwardly.
"Well too bad! Is my initial reaction" the judge replied during the hearing, which saw eight different elements in an alleged attack at Tomaris Court; including face biting, head stomping and throwing the woman.
It was alleged in the first attack on May 4th, James Fernando was in the company of a protected person while drinking in breach of his DVO, when he started swearing and becoming jealous at 9pm, before being told to "go away".
The alleged statement of facts claim Fernando approached the victim carrying a milk crate, and "without provocation" struck her once to the head causing immediate pain.
It's alleged he raised the milk crate again "in order to strike the victim to the head".
The judge read: "She raises her arms, and is struck by the milk crate to her hands and arms, causing a laceration and bleeding. Immediate pain. Bleeding from the forehead. Calls out to her sister."
A second alleged attack on June 6th at Tomaris Court read more prolonged, involving eight different elements.
The judge read: "Punched her once to the face with his right fist. Sat down and then began kissing her, and biting her face.
"Then later on he becomes 'angry'. With a closed fist, punches her with full-force, upper cut motion, to her face.
"Uses his right leg to kick her in the face with full-force. Later on he begins punching her again.
"Grabbed her by the hair, stomps on her with full-force.
"Grabs her by the body, lifts her in the air and throws her. Throws a chair at her.
"Eight different elements to it. Punching to the face. Biting to the face. Uppercut to the face. Kick to the face. Punching her to the face again. What are we up to. Five?
"Pulling by hair, stomping with full-force. Lifting in the air and throwing her to the ground. Throws a chair at her."
Fernando appeared over video link from Holtze prison. His legal aid lawyer indicated the man's application for representation was still pending.
The judge indicated the alleged aggravated assault on May 4th was serious, but "paled in significance" to the second one.
"The sentencing indication starts with the restoration of the three months [of a suspended sentence].
"Arrest date was the 6th June. Then we move on to the May offending, which was the milk crate. For that he gets six months, as part of the sentencing indication.
"Contravene a domestic violence order. One month accumulative.
"Then we get to the most serious one of the 6th June. Same domestic violence order, breached again. One month accumulative.
"I've counted eight different elements to it. 12 months. Two months which is concurrent.
"An assault on a woman trying to stop him. Three months. Two months which is concurrent.
"21 months from the 6th June 2024. Suspended after 16 months."
The matter was adjourned to 17th July for a response to the sentencing indication from the defendant.
Legal aid asked: "Your honour, I did mention earlier, as instructed [by his client], there is a funeral on the 2nd August for his sister."
The judge said he'd hear the bail application himself prior to the date, but given the circumstances, appeared unlikely.
"I'm not saying never to bail, but I'm giving you the indication that I'm not feeling inclined to give him bail."
As mentioned, the hearing was a sentencing indication. It's similar to a 'try-before-you-buy'.
There is no plea entered on the matter, and the statement from police is just alleged, and not agreed-to by the defendant.
Limited submissions from both the defence and prosecution are reportedly heard on sentencing indications sometimes, depending on the judge, but they're not typically comprehensive.
We are The Mango Inquirer.
