Craill v Police - [2016] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CRAILL v POLICE
[2016] SASC 168
Judgment of The Honourable Justice Stanley
4 November 2016
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appeal against sentence.
The appellant pleaded guilty to five counts of contravention of a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The appellant was also sentenced in relation to a number of other matters, namely, five counts of breaching bail and four counts of contravening an intervention order. In addition, the appellant admitted to breaching a bond to be of good behaviour for a period of 12 months and confirmed an interim police intervention order.
The magistrate sentenced the appellant to a term of imprisonment for five months and two weeks. The magistrate ordered that the appellant enter a bond to be of good behaviour for a period of 18 months after serving two months of the sentence of imprisonment.
The appellant appeals on the grounds that the magistrate erred in the application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA); the magistrate erred in relation to the factual basis of the plea; the magistrate erred in failing to find that there were no proper grounds to refrain from revoking a suspended sentence; the magistrate erred in failing to have regard or significant regard to the complainant’s attitude toward penalty; the magistrate erred in failing to consider the full range of sentencing options; the magistrate erred in failing to suspend the entire term of the sentence of imprisonment; and the sentence is manifestly excessive.
The appeal is also two days out of time. There is no opposition to the grant of an extension of time within which to institute the appeal.
Held, per Stanley J:
1. Extend the time within which to institute the appeal (at [55]).
2. Dismiss the appeal (at [55]).
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Criminal Law Consolidation Act 1935 (SA) s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A, s 58(1), (3) , s 38; Bail Act 1985 (SA) s 17(1), referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Kreutzer (2013) 118 SASR 211; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Buckman (1988) 47 SASR 303; R v McMutrie (2002) 83 SASR 261; Thakur v Police (2016) 125 SASR 180; Police v Chilton (2014) 120 SASR 32; The Queen v Kanj (2000) 118 A Crim R 329; Coulthard v Kennedy (1992) 60 A Crim R 415; R v Rowe (1996) 89 A Crim R 467; R v Fadah [1999] NSWCCA 267; R v Crosbie [2002] SASC 433; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Wilkinson (2008) 101 SASR 21; R v Lennon (2003) 86 SASR 295; R v Wiskich (2000) 207 LSJS 431; R v M, A G (2013) 116 SASR 219; R v Banens Unreported, Supreme Court of South Australia, King CJ, 18 November 1987, considered.

CRAILL v POLICE
[2016] SASC 168
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against sentence.
The appellant pleaded guilty to five counts of contravention of a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act) and one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The appellant was also sentenced in relation to a number of other matters, namely, five counts of breaching bail and four counts of contravening an intervention order. In addition, the appellant admitted to breaching a bond to be of good behaviour for a period of 12 months and confirmed an interim police intervention order.
The magistrate sentenced the appellant to a term of imprisonment for five months and two weeks. The magistrate ordered that the appellant enter a bond to be of good behaviour for a period of 18 months after serving two months of the sentence of imprisonment. The magistrate arrived at the sentence in the following manner. The magistrate imposed a notional sentence of imprisonment for the offence of aggravated assault of four months and one week after allowing for the appellant’s guilty plea. The magistrate imposed a notional sentence of imprisonment of one month and one week pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) for the nine counts of contravening an intervention order and the five counts of breaching bail after allowing for the appellant’s guilty plea and the period of five weeks he had spent in custody by the time he came to be sentenced. The magistrate applied s 18A in imposing one sentence of four months imprisonment in respect of all of above offending. In relation to the breached bond, the magistrate found there were no proper grounds to excuse the breach, ordered that the suspended sentence bond be revoked and the sentence carried into effect, found that there were no special circumstances justifying a reduction of the term of the suspended sentence, and ordered the term of the suspended sentence, namely, six weeks imprisonment, be served cumulatively upon the period of four months imprisonment.
The appeal is two days out of time. There is no opposition to the grant of an extension of time within which to institute the appeal. I do so.
The appellant appeals on the following grounds:
1.the magistrate erred in the application of s 18A of the Sentencing Act;
2.the magistrate erred in relation to the factual basis of the plea;
3.the magistrate erred in failing to find that there were no proper grounds to refrain from revoking a suspended sentence;
4.the magistrate erred in failing to have regard or significant regard to the complainant’s attitude toward penalty;
5.the magistrate erred in failing to consider the full range of sentencing options;
6.the magistrate erred in failing to suspend the entire term of the sentence of imprisonment; and
7.the sentence is manifestly excessive.
Approach on appeal
It is well established that an appellate court will not interfere with the discretionary finding of a magistrate unless the appellant establishes that the magistrate acted on some wrong sentencing principle, took into account an irrelevant matter, failed to have regard to a relevant matter or where no patent error is identifiable, the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.[1]
[1] House v The King (1936) 55 CLR 499 at 504 – 505; Markarian v The Queen (2005) 228 CLR 357 at 370 – 371.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[2] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[3] by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[2] (1936) 55 CLR 499.
[3] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.
Circumstances of the offending
On 30 May 2015 the appellant attended at the home of the victim who is his former partner, the mother of his child. An argument ensued. While he was holding their eight-week-old child the appellant used his other hand to push his former partner up against the bedroom door by holding her throat. The protected person was not physically injured but was frightened.
The nine counts of failing to comply with a term of an intervention order and the five counts of breaching bail involved a range of conduct including repeatedly telephoning the victim, attending at her home or driving past her house, and attempts to communicate with her by leaving a letter in her letterbox. The conduct occurred on numerous occasions notwithstanding that the appellant had only recently been charged with offences involving the same or similar conduct and that on 3 June 2015 the police issued him with an intervention order.
Circumstances of the appellant
The appellant is 36 years of age. He is the father of two children. He had a difficult upbringing. His parents separated when he was a young boy. He was mainly raised by his father and did not see his mother for a number of years. He was educated to Year 10. He left school to take up work with his father who owned a brick paving business. He worked in that industry for some years. Eventually he married, although the marriage was subsequently dissolved. That marriage produced a daughter who was born in 2007. For a while the appellant enjoyed regular access to his daughter but proceedings in the Family Court became bitter and this caused the appellant great distress. His life went downhill with the development of a drug habit. This led to the appellant dealing drugs to support his own habit. The appellant has an extensive criminal history relating to driving, drugs and firearms offences as well as contraventions of bail and bond conditions.
The approach of the magistrate
The magistrate considered the appellant was entitled to credit for pleading guilty. She noted that he had been in custody for some of the breach of bail and breach of intervention order offences and for another matter for five weeks and two days. The magistrate noted the appellant’s previous criminal history. The magistrate addressed the intervention order. She said:
I speak firstly about the intervention order. You were subject to an interim intervention order imposed by police on 3 June 2015 for the protection of the complainant in this matter who was your former partner. Her name is [TD]. You have a young child together. That relationship has broken down and I have heard submissions from your lawyer about your frustration arising out of the fact that you found it difficult to obtain contact with the child. I have regard to the submissions of counsel without repeating the details. I bear in mind the emotional impact on you concerning lack of access to your child. You instruct that you acknowledge that it’s not okay to assault your partner. The plea is resolved on the basis of an agreed factual basis which has been briefly outlined. I proceed on the basis that you went to your estranged partner’s home to visit the baby, an argument developed because [TD] was unhappy about you having new relationships where a new partner would interact with your child. While you were holding onto the baby with one hand, you used your left hand to push your former partner up against the bedroom door by her throat. It is accepted that she was not injured but was fearful. Aggravated assault in these circumstances is a matter that the courts have to take seriously. There is a lot of domestic violence in the community and courts have to make sure that sentences are imposed that make it clear to you and other people that it won’t be tolerated. I regard it as more serious given that is occurred in the presence of a young child, a relevant sentencing factor that the courts are required to take into account. Even if the child is very young, you don’t know to what extent the child might have been affected and so we mustn’t presume that the child was immune from what was going on.
Unfortunately when you were subject to the intervention order and also bail conditions preventing you from going within 100 metres of your former partner’s home and also preventing you from communicating with her, you breached your bail conditions and intervention order conditions by going to her premises on several occasions and also by communicating with her. I don’t detail the allegations but I have regard to those matters outlined to me by the prosecution and also matters that I have read in the apprehension reports. It should have been made plain to you even if you weren’t going to respect the intervention order conditions that your former partner did not welcome your attendance at her premises. Once again, breaches of intervention orders are regarded seriously by the courts. Conditions in a bail agreement or an intervention order are required to be complied with for the protection of victims. Courts are required to impose sentences which act as a deterrence. If you had just done this once that would be one thing but you did it on several occasions which tends to indicate a disregard by you for the orders of police and court. When you were interviewed in relation to the breaches you denied some of them and admitted a few which I give you credit for.
Your plea of guilty on the negotiated basis to the aggravated assault was on the day of your trial. You would normally not be expected to receive any credit for pleading guilty on the day of trial but I am prepared to give you a small amount of credit in the circumstances because of the matters outlined by your counsel.
The magistrate observed that the appellant had been through a relatively troubled period in the last year or so. She then addressed the time already spent in custody. She said:
Counsel has urged the court to take into account the time that you spent in custody so far and essentially submits that the period in custody so far ought to be regarded as sufficient punishment for all of the offending before me. The court is also urged to find proper grounds to excuse the breach of your suspended sentence bond, on the basis that it is of a different type and not as serious as some other types of breaches. I haven’t fully repeated the submissions to me but I bear them in mind. I have regard to the authorities on the topic of applications for breaches of suspended sentence bonds. It is not only whether or not the offending is of the same type which is relevant to this question of whether a bond is revoked. There are other factors such as whether or not the conduct indicates that you have departed from law abiding ways. There is no way I could ever find that your offending when seen together was trivial and your lawyer is not really pressing for me to consider that. He is however pressing that I find proper grounds to excuse the breach. I find that there are no proper grounds to excuse the breach. The bond will be revoked. I find that there are no relevant special circumstances which would justify a reduction in the term of that 6 week suspended sentence and so the sentence will come into effect.
The magistrate referred to sentencing considerations relevant to the appellant including the need to ensure that there is adequate punishment and that the community and, in particular, victims of domestic violence, are protected. She said:
To set out the sentence that I impose I need to separate out the two types of offences because different amounts of credit flow from those. As to the aggravated assault which is the first in time a custodial penalty is called for in my view. I am not of the view that 5 weeks is anything like sufficient penalty notwithstanding that the offence is not as serious as many that I have seen of aggravated assault. As a starting point of 5 months imprisonment, I reduce that to 4 months, 1 week as a result of your late negotiated plea. As to the breaches of bail and breaches of intervention order, I consider that when taken together as a course of conduct, they warrant a custodial penalty. As a starting point of 4 months I reduce that by 30% taking into account your plea of guilty to 2 months, 24 days. I also further reduce that taking into account 5 weeks that you have spent in custody to 1 month, 1 week. (Upon settling these remarks, I note that the term should be 1 month, 2 weeks, but I will not disturb the penalty because the error favours the defendant) I am therefore left with two periods, 4 months 1 week and 1 month, 1 week. I impose one sentence pursuant to section 18A of 4 months, which is to be cumulative upon the revoked suspended term of 6 weeks that gives a total head sentence of 5 months, 2 weeks.
I am not entitled to suspend the whole term for legal reasons. Even if I was I would not suspend the whole term. However, I am prepared to order a partial suspension, which I am able to do that under the legislation. I direct that after you have served a term of 2 months you may be released and that is 2 months from today and then the remaining 3 months, 2 weeks will be suspended on condition that you enter into yet another bond. That bond will be for a period of 18 months. I will not have you subject to supervision although I would have liked you to have been compelled to attend domestic violence counselling. I haven’t heard anything about that but I don’t think I want have another layer of supervision if you are already subject to a District Court supervised bond. The bond is in the amount of $500 for a period of 18 months.
Section 18A of the Sentencing Act
The appellant submits that the sentencing magistrate erred in the approach she took to the application of s 18A to the single sentence of four months imprisonment for the nine counts of contravening an intervention order and the five counts of breaching bail. He submits that the magistrate should have expressed reasons for the individual sentences that she would otherwise have imposed so as to explain how the sentence was reached. This was particularly so where some of these offences occurred on the same day and that at least warranted consideration of notional concurrence in sentencing for these offences.
I reject this submission.
In R v Major[4] Doyle CJ considered the approach to the application of s 18A saying that the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. The Chief Justice emphasised that the sentencing judge was not required to determine the sentence that would have been imposed in respect of each separate offence with complete precision. Subsequently in R v Symonds[5] Doyle CJ explained his reasons in Major in the following terms:[6]
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
[4] (1998) 70 SASR 488 at 490.
[5] [1999] SASC 217.
[6] [1999] SASC 217 at [21] – [22].

In my view this is one of those cases when it is appropriate and convenient to go directly to the single sentence to be imposed for what was a course of conduct. The magistrate treats this offending separately from the offending on the charge of aggravated assault. In my view, descent into any further detail would have constituted unnecessary elaboration. This is the sort of straightforward case that I think Doyle CJ had in contemplation in Symonds.
There was no error in the approach taken by the learned magistrate.
The factual basis of the plea
The appellant submits that the magistrate erred in making the presence of the young child at the time of the assault an aggravating feature of the offence. He submits that there was no evidence upon which the magistrate could act to find that the assault had any impact on the child. Accordingly there was no basis for the magistrate to find that the presence of the child made the offence “more serious”.
I do not accept this submission. It seems to involve a misunderstanding of the sentencing remarks. The magistrate did not find that the assault had any impact on the child. Her remarks indicate that the evidence did not permit her to conclude the opposite. There is no error in that observation. Clearly, the terms of s 10(1)(f) of the Sentencing Act required the magistrate to have regard to the fact that the circumstances in which the offence was committed by the appellant was seen by a child. I consider that the Parliament considered that to be an aggravating factor for an offence. The magistrate’s approach does not disclose any error.
Failure to find proper grounds
The appellant submits that the magistrate erred in failing to find that proper grounds existed not to revoke the suspension of the sentence because of the marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated.
I do not accept this submission.
Section 58(1) of the Sentencing Act provides:
(1) Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)     may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order that the probationer pay the whole or a part of that sum;
(b)     may order a guarantor to pay the whole or a part of the amount due under the guarantee;
(c)     may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i) sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii) if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, refrain from taking any action in respect of the failure;
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
The power to make those orders is subject to the exceptions set out in s 58(3) which provides:
(3)     Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
(b)     may—
(i) —
(A) extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B) in the case of a bond requiring performance of community service—
• extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or
• if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or
(C) cancel the whole or a number of any unperformed hours of community service; or
(D) revoke or vary any other condition of the bond; or
(ii) if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
In R v Buckman[7] King CJ explained the basis upon which the court should exercise the powers conferred by the predecessor to this provision.[8] He said:[9]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
[7] (1988) 47 SASR 303.
[8] Offenders Probation Act 1913 (SA) s 9.
[9] (1988) 47 SASR 303 at 304.
King CJ referred to the equivalent provision to s 58(3) as follows:
It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
In this case the suspended sentence was imposed for the offence of driving while disqualified. The breaching offences were the five counts of contravening an intervention order and one count of breach of bail. While they were not the same offence for which the suspended sentence was imposed, they share the characteristic that they involve the appellant failing to comply with a term or condition imposed upon him. More importantly, I consider that there is not a marked disproportion between the seriousness of the breaching offences and the sentence of imprisonment which was activated. The five counts of contravening the term of an intervention order I consider to be serious offending. In R v McMutrie[10] this Court said that a breach of a restraining order is a matter of particular gravity.The object of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is the prevention of domestic and non-domestic abuse, and the exposure of children to the effects of such abuse. The principal instrument for achieving this objective is the making of intervention orders.[11] The protective objects of the Act can only be achieved if courts are scrupulous in doing what they can to ensure that persons who are subject to such orders comply with them. The repeated breaches of those orders by the appellant demonstrate a persistent, blatant and contumelious disregard for the orders and the authorities that impose them. Crimes of domestic violence are often occasions for the exercise, or attempted exercise, of power over the victim by the offender. Breaches of intervention orders can be occasions for the offender to intimidate the victim with an implied threat that such orders will not protect them. The courts must act to contradict this impression.
[10] [2002] SASC 253 at [18], (2002) 83 SASR 261 at 265.
[11] Thakur v Police [2016] SASC 75 at [39], (2016) 125 SASR 180 at 189.
The appellant submits that the magistrate should have found proper grounds given the time he had spent in custody, the fact that the offending was not accompanied by violence or threats of violence, the fact that the complainant did not wish the appellant to spend further time in custody, and the fact that the appellant was already on a suspended sentence imposed in the District Court subsequent to the offending.
These were all matters of which the magistrate was aware. There is no reason to consider that the magistrate did not have regard to them in the exercise of her discretion. Appeal courts must be careful not too readily to discover error in the necessarily economical sentencing remarks of busy magistrates.[12]
[12] Police v Chilton [2014] SASCFC 76 at [19], (2014) 120 SASR 32 at 38.
The facts underlying the offending, combined with the appellant’s personal circumstances, do not readily permit the conclusion that proper grounds to excuse the breach can be identified. In my view there was no basis to justify a departure from the ordinary consequence of a breach of a bond. There was no error in the approach of the magistrate.
The complainant’s attitude toward penalty
The victim of the aggravated assault indicated through the prosecutor that she was not asking for the court to order that the appellant spend any further time in custody. The appellant submits that the magistrate erred in failing to have regard to the complainant’s attitude towards penalty in fixing sentence.
While the attitude of the victim to an offence is not an irrelevant factor in sentencing,[13] that attitude cannot be determinative of what constitutes an appropriate sentence. Moreover, this principle must be applied with considerable caution in cases of domestic violence.
[13] Coulthard v Kennedy (1992) 60 A Crim R 415.
In The Queen v Kanj[14] Barr J, with whom Hulmej agreed, approved the proposition that exceptional caution should be exercised in the receipt and use of evidence of forgiveness as a sentencing factor in domestic violence offences.[15]
[14] (2000) 118 A Crim R 329.
[15] (2000) 118 A Crim R 329 at 333.
In R v Rowe[16] Hunt CJ at CL, with whom Smart and Ireland JJ agreed, said:[17]
The applicant’s fifth submission is that the judge gave insufficient weight to the wishes of the complainant. This Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Glen, Simpson J pointed out that, whilst forgiveness by the victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
[Citations omitted].
[16] (1996) 89 A Crim R 467.
[17] (1996) 89 A Crim R 467 at 472 – 473.
The reason for such caution is obvious. In situations of domestic violence a victim’s motivation for advocating a particular penalty is often influenced by their ongoing relationship with the defendant and an unhealthy relationship of dependency between them. Their attitude is often influenced by apprehension about the consequences for them in the future given a continuing relationship with the defendant. This attitude frequently fails to reflect what is in their best interests and what the court might consider appropriate in all the circumstances. It would be contrary to sound sentencing practice to place victims of domestic violence in the position where they hold, or appear to hold, the keys to the offender’s release. To place victims in that position is to impose on them a burden they ought not be required to bear.[18]
[18] R v Fadah [1999] NSWCCA 267 at [26].
While in this case the appellant and the victim were no longer living together, they had a child and that necessitated some contact between them in the future. In any event, while the victim in this case was not asking the court to impose further time in custody, that passive position did not necessarily indicate that she was opposed to the court doing so. In any event, I am satisfied that there was no error in the approach taken by the magistrate.
The range of the sentencing options
The appellant submits that the magistrate erred in not considering any penalties other than a sentence of imprisonment.
Imprisonment is a sentence of last resort.[19] It is an error not to consider all of the properly available sentencing options. However, it does not follow that proper sentencing requires a busy magistrate to expressly consider every other sentencing option before concluding that a term of imprisonment is the appropriate sentence.[20] That would impose an undue and unnecessary burden upon sentencing magistrates. In this case I am satisfied that a term of imprisonment was the appropriate penalty given the serious nature of the offences, the circumstances in which they were committed, the appellant’s antecedents and the particular need for personal and general deterrence for offending of this kind. Reading the magistrate’s reasons as a whole it is apparent she was of the same view. There was no error in the approach taken by the magistrate.
[19] Section 11, Sentencing Act.
[20] Police v Chilton [2014] SASCFC 76 at [20], (2014) 120 SASR 32 at 38.
Failure to suspend
The appellant submits that the magistrate erred in failing to suspend the whole of the sentence of imprisonment imposed. He submits good reason existed to do so. He relies upon the factors referred to earlier in these reasons.[21]
[21] [2016] SASC 168 at [29].
Section 38 of the Sentencing Act provides:
38—Suspension of imprisonment on defendant entering into bond
(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the other conditions (if any) of the bond.
(2) A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—
(a)     to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or
(b)     as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or
(c)     as an adult for a serious and organised crime offence or specified offence against police; or
(d)     as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.
(2a) Despite subsection (2)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 1 year, the sentencing court may, by order—
(a)     direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and
(b)     suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
…
By reason of the operation of s 38(2)(a), the magistrate was correct in concluding that she was constrained from suspending the whole of the sentence she was imposing given that the custodial sentence of four months represented a term of imprisonment that was to be served cumulatively with the term of imprisonment about to be served by the appellant as a consequence of the revocation of the suspended sentence. That sentence of imprisonment was subject to the exercise of the court’s discretion pursuant to s 38(2a). Section 38(2a) only permitted partial suspension. That is what the magistrate did. There is no error in the approach taken by the magistrate.
In any event, for the reasons given earlier, it was no more of an error on the part of the magistrate to fail to find the existence of good reasons for suspending than it had been in failing to find proper grounds to refrain from revoking the suspended sentence.
Manifestly excessive?
The appellant submits that in all the circumstances the sentence imposed was manifestly excessive.
In The Queen v Morse[22] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[23]
[22] (1979) 23 SASR 98.
[23] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. In Hili v The Queen[24] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[25]
… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted].
[24] [2010] HCA 45, (2010) 242 CLR 520.
[25] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.
The maximum penalty for the offence of aggravated assault is three years imprisonment.[26] The maximum penalty for the offence of contravening an intervention order is two years imprisonment.[27] The maximum penalty for breaching bail is a fine of $10,000 or two years imprisonment.[28]
[26] Section 20(3) CLCA.
[27] Section 31(2) Intervention Orders (Prevention of Abuse) Act 2009 (SA).
[28] Section 17(1) Bail Act 1985 (SA).
The appellant submits that the sentence is disproportionate to the nature of the offending which was at the lower end of the scale of offending of this kind.
He submits the aggravated assault was at the lower end of the scale, no injury was caused, the offending was of short duration, the appellant quickly terminated the offending and left the victim’s premises, and he did not have a history of violent offending. In relation to the breaches of bail and intervention orders, the appellant submits these offences occurred in circumstances of personal stress, when the appellant was seeking to see his infant child, and none of the breaches were accompanied by violence or threats of violence. Finally, he submits that the victim was not asking the court to impose any further custodial sentence.

The offences of aggravated assault and contravening an intervention order are objectively serious offences. In R v Wilkinson[29] Gray J said:[30]
Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation.
[29] [2008] SASC 172, (2008) 101 SASR 21.
[30] [2008] SASC 172 at [29], (2008) 101 SASR 21 at 27.
The authorities emphasise the importance of general and specific deterrence in sentencing for such offences.[31] The words of King CJ in R v Banens[32] are as relevant today as they were when delivered:[33]
The sentence which is imposed by the Court for a crime of domestic violence is aimed in large part at deterring other people who may be involved in like situations… I think that in a serious case of domestic violence of this kind it is necessary for this Court to make clear, by actual intervention, to the public, that the sentences imposed for this type of crime are calculated to provide effective deterrence to those who might be tempted to commit similar crimes. Not only must the penalties imposed operate, as far as such penalties can, as an effective deterrent, but it must be made clear to the public that the courts are imposing sentences having that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed.
[31] R v Lennon (2003) 86 SASR 295 at 297; R v Wiskich (2000) 207 LSJS 431 at 460; Police v Dolan [2010] SASC 341 at [16]; R v M, A G (2013) 116 SASR 219 at 226.
[32] Unreported, Supreme Court of South Australia, King CJ, 18 November 1987.
[33] Unreported, Supreme Court of South Australia, King CJ, 18 November 1987 at 7 – 8.
While the offence of aggravated assault in this case is towards the lower end of the scale for that offence, it is nonetheless a serious offence made worse by it occurring in the presence of a small child and, for the reasons set out above, not ameliorated by the expressed attitude of the victim. Moreover, as I have already explained, the repeated breaches of the intervention order constitute serious offending. Notwithstanding that the appellant has no relevant prior history of violent offending, his criminal antecedents do not justify the court extending lenience to him. Considerations of specific and general deterrence loom large in sentencing for these offences. The appellant has previously had the benefit of a range of sentencing options including fines, licence disqualifications, suspended sentence bonds and good behaviour bonds. All of those penalties have failed to adequately deter the appellant from failing to comply with the terms and conditions of bail, bonds and the intervention order.
In my view, the sentence of imprisonment imposed was within the range of sentences available for this offending, albeit I accept, the length of the term of imprisonment was towards the higher end of that range. I do not consider that the sentence was disproportionate to the nature of the offending, even allowing for the five weeks that the appellant had already spent in custody. No proper basis for appellate intervention has been established.
The sentence was not manifestly excessive.
Conclusion
I would extend the time within which to institute the appeal. I would dismiss the appeal.