D, M v Police - [2018] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
D, M v POLICE
[2018] SASC 172
Judgment of The Honourable Justice Hinton
20 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against sentence.
The appellant pleaded guilty to one count of assault causing harm and one count of property damage contrary to ss 20(4) and 85(3) of the Criminal Law Consolidation Act 1935 (SA) respectively. The offending occurred in the context of family law proceedings in the Federal Circuit Court involving the custody and parenting of the appellant’s step-daughters; the children of the appellant’s wife and her previous partner (AP). The offending occurred when AP had taken the girls home from school contrary to the agreed parenting arrangements in place. The appellant responded by going to AP's house, kicking his door in and assaulting him. The Magistrate sentenced the appellant to imprisonment for one year, two months and 12 days, with a non-parole period of five months. The Magistrate also imposed an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) against the appellant, affording protection to AP and the appellant’s step-daughters.
The appellant appealed against the sentence on the grounds that the Magistrate imposed the sentence on an erroneous factual basis and that the Magistrate erred in either not suspending the sentence or ordering that the appellant serve the sentence on home detention or in the community whilst subject to an intensive correction order.
The appellant also appealed against the intervention order on the grounds that it was, in part, contrary to the position agreed by the parties and contrary to orders of the Federal Circuit Court. The respondent conceded this appeal.
Held:
1. Allowing the appeal against sentence, the Magistrate sentenced the appellant on the basis of factual errors which resulted in the sentencing discretion miscarrying. The appellant is sentenced to imprisonment of seven months and 25 days which is suspended upon the appellant entering into a bond to be of good behavior for two years.
2. The appeal against the intervention order is allowed.
Criminal Law Consolidation Act 1935 (SA) ss 20(4), 85(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA); Sentencing Act 2017 (SA), referred to.
Yardley v Betts (1979) 22 SASR 108, considered.

D, M v POLICE
[2018] SASC 172
Magistrates Appeal
HINTON J:
Introduction

This is an appeal against sentence.
The appellant pleaded guilty to one count of assault causing harm[1] and one count of property damage.[2] The victim, AP, was the former partner of the appellant’s current partner, SR. The offending occurred in the context of lengthy, ongoing and acrimonious proceedings in the Federal Circuit Court regarding the custody and parenting by SR and AP of their two daughters, JP and KP. The offending occurred when AP picked the two girls up from school and took them back to his house contrary to the then understanding regarding parenting and custody arrangements. The appellant responded to the distress this action caused SR by going to AP’s house, kicking his door in and assaulting him.
[1] Contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA).
On 20 September 2018 the appellant was sentenced by a Magistrate for the assault and property damage offences to imprisonment for one year, two months and 12 days. The Magistrate fixed a non-parole period of five months. Lastly, the Magistrate ordered that the appellant pay compensation to AP in the amount of $2465.
As part of the sentencing process the prosecution sought an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The people to be afforded protection under the order were AP, JP and KP. The appellant consented to the order in terms of a draft provided to the Court by the prosecutor. The Magistrate made the order. The order prohibited the appellant from being within 100 metres of AP, KP and JP. However, clause 11 permitted contact “at dispute resolution or at a court hearing under the Family Law Act 1975, the Children’s Protection Act 1993 or at any other court or tribunal hearing”. In that form clause 11 departed from the draft without notice to the parties and without hearing from them. Clause 11 in the draft was framed in terms that would permit contact if the Federal Circuit Court made orders permitting contact to the extent of such orders.
The appellant appeals against the sentence on the grounds that the Magistrate erred in:
i. sentencing the appellant on an erroneous factual basis;
ii.failing to suspend the sentence pursuant to s 96 of the Sentencing Act 2017 (SA) (the Sentencing Act);
iii.failing to order that the sentence be served on home detention pursuant to s 71 of the Sentencing Act;
iv.failing to order that the appellant served the sentence whilst subject to an intensive correction order pursuant to s 81 of the Sentencing Act; and
v. imposing a sentence that was manifestly excessive.
In addition, the appellant appeals against the intervention order on the grounds that:
i.condition 11 of the order was against the agreed position of the parties; and
ii.the order was contrary to the orders made by the Federal Circuit Court on 30 July 2018.
The appeal against the intervention order was conceded. I return to it below for the sole purpose of the making dispositive orders.
The surrounding circumstances and the circumstances of the offending
In what follows I deal with the circumstances of the offending in the context of the proceedings in the Federal Circuit Court for reasons that will become apparent. As to those proceedings, what follows is drawn from orders made by the Federal Circuit Court on 5 December 2016 and 30 July 2018 and a Family Report prepared in June 2018. These documents were all before the Magistrate.
I do not know when the relationship between AP and SR first broke down nor when proceedings in the Federal Circuit Court commenced. It is clear from the papers, however, that by the time of the offending, 28 September 2017, those proceedings had been ongoing for some years.
The order of 5 December 2016 provided that SR and AP have equal shared parental responsibility for JP and KP. It specified the periods during which the children were to live with each parent. Amongst other things, the order restrained AP from accessing pornography whilst the children were in his care and required that he continue in therapy for a sex addiction until the therapist recommended that therapy end. Further, order 7 restrained SR from:
a) causing or permitting the said children to come into the presence of Mr … [DM] … (‘Mr … [DM] …’) prior to February 2017 SAVE AND EXCEPT:
iat Bower Place in the context of re-introduction counselling; and
iion 25 December 2016 from 7.00am until 12.00 noon PROVIDED the mother or another adult is present throughout;
b) causing or permitting the said children to be or remain in the presence of Mr … [DM] … unless another adult is present, with such injunction to expire on 5 December 2017 or such later date as is recommended in writing by Bower Place.
The Magistrate was not provided with any information explaining the reason or reasons for this condition. The various documents before the Magistrate demonstrate a longstanding and intense mutual dislike on the part of AP and DM for one another. I note that in 2016 the appellant pleaded guilty to assaulting AP. That assault consisted of a push and a slap to the back of AP’s head delivered without warning when DM happened upon AP in the streets of Strathalbyn. I do not know if that offending had anything to do with order 7. The appellant was convicted of the assault and entered into a bond to be of good behaviour for 15 months. I also note that on 15 July 2016 an intervention order was made on the strength of allegations that the appellant had assaulted JP and KP. The allegations of assault were ultimately not proceeded with.
Order 8 should also be referred to. It provided:
The parties engage in and cause the said children to engage in, re-introduction counselling with … or such other counsellor as may be recommended by Bower Place, directed towards gradual re-introduction of … [DM] … into the mother’s household, upon the following basis: …
The order included requirements that SR encourage DM to engage with counselling and continue the therapy he was then having. Again the Magistrate was not provided with any explanation as to what counselling was suggested nor why DM was having therapy. What is plain, however, is that the order contemplated that the limitation on contact between DM and JP and KP would likely not be required after 12 months and that during that time DM was to be “re-introduced” into SR’s household. The alleged assaults and the intervention order must be viewed in that light.
The June 2018 report states that in February 2017 SR raised with Bower Place concerns about AP’s conduct. I understand Bower Place to be the name of an organisation offering counselling, psychological services, family therapy services and the like. In March 2017 Bower Place spoke to SR and AP regarding SR’s concerns. AP agreed that KP and JP should spend time primarily in the care of their mother.
The report indicates that some time later AP made attempts through his lawyer to have his time with the children increased. Those attempts were unsuccessful. Believing his efforts exhausted, on the day of the offending AP attended KP’s and JP’s school and took them home with him in the belief that he was restoring the children’s care arrangements subject of the December 2016 order. The Magistrate recorded:
[4] On 28 September 2017 the victim had picked the two girls up from school and taken them to his residence. Under the parenting arrangements, the girls were to be with their mother that weekend. The victim picked the girls up because of concern had [sic] for their safety while with their mother. By 3:30 pm the girls’ mother was aware the children had been picked up from school and went to the victim’s mother’s house screaming for the children. Soon after, police attended the victim’s home to check on the girls’ welfare. …
It appears that at this point in the narrative, that is after SR attended at AP’s mother’s house and was unsuccessful in retrieving the girls, she contacted the appellant in a highly emotional state. The Magistrate continued:
At around 5:30 pm you … [DM] … contacted a friend asking him to accompany you to get the girls from their dad, saying he had taken them from school because the court order had been broken. Your friend drove you to the victim’s house. You went to the front door, yelling out for the two girls telling them to come out and saying you would not leave without them. The victim screamed to his mother to make sure the door was locked and to take the girls to the other end of the house. He told you to leave or he would call the police. You kept calling out to the girls and the police were called. You then kicked the front door, damaging it, causing it to fly open and hit the victim. He tried to lean against the door to prevent you entering, and you rushed towards the door, forcing it open as the victim fell to the ground. The girls were heard to be screaming. You entered about 1.5m inside the doorway and hit the victim. He managed to get you outside and you then pushed him to the ground onto the grass. You hit him a number of times. The friend who had driven you there intervened, dragging you away back to his car and you left.
Subsequently AP attended a hospital where he required stitches for a three centimetre laceration to the left side of his scalp. He had also sustained a number of grazes in addition to swelling to his upper left eyelid. In his victim impact statement AP says that as a result of the offending he suffers anxiety and depression, has trouble sleeping and is fearful when he goes out. He has had to install a security system in order to feel safe in his own home once more.
The Family Report indicates that both KP and JP were traumatised as a consequence of witnessing either the violence or its aftermath.
Subsequently in October 2017 orders were made in the Federal Circuit Court providing that the children live with their father and only spend certain specified time with their mother and not to have contact with DM. Some variation was made to those orders in December 2017 to provide for the children to spend time with their mother during school holidays, on weekends and after school.
The appellant was arrested, charged and bailed. One condition of his bail agreement was that he was not to make contact with AP.
The Family Report includes summaries of interviews conducted with each of AP, JP, KP, SR and DM. In the summary of DM’s interview it states that he expressed remorse at JP and KP witnessing the aftermath of his assault upon AP and that he accepted that he had done the wrong thing. DM is also reported as saying that “he did not go to … [AP’s] … house with the intention of hurting him, but to ‘talk’. He said … [AP] … would ‘not have a bar of it’. … [DM] … maintains he did what he did ‘in defence of the children’ and that it was an ‘emotional reaction’ and he ‘wishes it hadn’t happened that way’.”
The Family Report author expresses no concern as to the appellant ever having harmed JP or KP directly. Rather it appears that the issue with DM lies in the hostility he and AP share for one another and the consequent discomfort and anguish the children experience when in DM’s presence. As at the time of the report both KP and JP reported feeling less anxious and not uncomfortable around DM. Both expressed the desire to spend more time with their mother.
The report writer recommended that SR and AP have shared care of JP and KP “with the children going to one parents’ home on the Friday night after school, returning to the other on the following Friday morning, at school”. And:
It should also be a provision of any Order that … [DM] … be given strict instructions that he is not to parent either of the subject children and that his jurisdiction only lies with the two children he has with … [SR] … [DM] … presents as a man who will respond to clear boundary settings. Ideally, he should leave the home when the mother has the children, but this might be unworkable. At best, he should be encouraged to be in his office or shed, when they are present. … [DM] … would benefit from counselling with someone who is experienced around anger management and for this Counsellor to consider ways in which … [DM] … is able to apologise to the children and possibly even to the father, by letter. When the therapist has determined that … [DM] … is able to manage his anger, then he should be free to associate around the children, but disciplining and their parenting should continue to remain with … [SR] … .
On 30 July 2018 fresh orders were made in the Federal Circuit Court. SR and AP were to have equal shared parental responsibility for KP and JP. The order provided for care arrangements that, consistent with the Family Report, included the following:
3     Commencing 8^th August 2018, the said children live with each of the parties during each school term as follows:
With the Applicant mother:
3.1from the conclusion of school on Wednesday (or 3.00pm) until 6.00pm on the following Sunday and each alternate week thereafter;
NOTING that the mother shall ensure that her husband (… [DM] …) is substantially not present during such time until recommended otherwise by the children’s counsellor, or until the start of Term 4, 2018 (whichever is earlier), and that … [DM] … is to commence and/or continue his counselling for anger management;
with the Respondent father:
3.2from 6.00pm on Sunday until the commencement of school on Wednesday (or 9.00am) of the following week and each alternate week thereafter.
4     Commencing no later than at the start of Term 4, 2018, (but earlier if recommended by the children’s counsellor) the requirement for … [DM] … to be substantially not present during the mother’s time be discharged.
5     Commencing no later than at end of Term 4, 2018, (but earlier if recommended by the children’s counsellor after the provisions of paragraph 9 hereof are satisfied) on the next Monday that immediately precedes the mother’s time with the children pursuant to paragraph 3.1 hereof (so that the weekends each party presently spends with the children remain the same), with each party on a week about basis from the conclusion of school on Monday (or 3.00pm) until the conclusion of school the following Monday (or 3.00pm) and each alternate week thereafter.
…
8     The children are to continue receiving counselling from … [Ms T] … at the parties’ joint and equal expense until such time as counselling for them can commence at … [SH] … after which time the children’s counselling shall continue for as long as recommended by their counsellor/s.
9     That … [DM’s] … counsellor liaise with … [Ms T] … (or … [SH] …, or such other counsellor as agreed) as to the progress of the said counselling (and provide a brief report if required by the children’s counsellor).
10    That subject to the recommendations of the children’s then counsellor who shall take into account … [DM’s] … progress referred to in paragraph 9 hereof and the children’s wishes, the time referred to in paragraph 5 hereof commence as soon as possible (and at the latest, by the conclusion of the 2018 school year).
…
13    The mother is to ensure that, during any periods of time the children spend with her, … [DM] … is not to undertake a parenting role for the children or engage in physical discipline of the children.
The Magistrate had the benefit of a report prepared by a therapist from the Child and Adolescent Mental Health Service after the therapist had been consulted by KP and JP. The therapist considered that the girls need time “to settle into their new access and parenting arrangements and trust that both parents will be able to put the needs of the girls above all else and allow both households to develop into safe and secure homes for all concerned”.
On 20 September 2018 the Magistrate sentenced the appellant for the offending of 28 September 2017. I deal with that sentence in detail below. The appellant was taken into custody that day and commenced serving his sentence. He remained in custody until 17 October 2018 when he was granted bail pending this appeal.
On 13 December 2017 the appellant pleaded guilty to failing to comply with the terms of a bail agreement, and theft. These offences arise out of an altercation that occurred in a hotel in Strathalbyn. AP was playing the pokies whilst waiting for one of his daughters who was at a school function. DM walked in, saw him, and began to abuse him. AP responded by commencing to film DM using his mobile phone. That caused the appellant to snatch the phone and leave the hotel with it. When interviewed by police the appellant made full admissions. He was dealt with without conviction but was required to enter into a bond in the sum of $300 to be of good behaviour for six months.
I return to the appellant’s criminal history below.
The appellant’s personal circumstances

The Magistrate recorded:
[9] You are 38 years of age. You attended school to year 11 and then commenced work and have obtained some qualifications. You and your partner have two young children together with her two girls from her previous relationship. At 23 you suffered a drug-induced psychotic episode. You have issues with self-confidence and self-esteem and have struggled with anger management and violence issues. You have recently been diagnosed, as I have said, with level one autism spectrum disorder, the general effects of which are set out in Dr Aziz’s report.
The appellant has been in a relationship with SR for five years. He is currently employed by Beaurepaires, a tyre retailer and fitter, as an assistant manager. He has been employed by Beaurepaires for the last 12 months. I note that the appellant’s employer thinks sufficiently highly of him to keep his position open for him to return to in the event that he is required to serve the sentence of imprisonment imposed by the Magistrate.
The Magistrate received two references from friends of the appellant attesting to his good qualities. One reference was provided by the friend who drove DM to AP’s house on the day of the offending. That friend and his wife consider DM to be “an honest and trustworthy mate”. The same friend refers to that offending as occurring “when his [DM’s] family was dealing with a very stressful situation that had been on going for some time”. He continues:
He is a loving husband to his wife and father to his children. I know he was genuinely concerned for the welfare of his step daughters at the time and it had gotten unusually out of control.
Late last year the appellant referred himself to Think Psych Psychological Services for an autism assessment. The outcome of that reference was that he was diagnosed as having Autism Spectrum Disorder at a level that suggested he required support. One aspect of the disorder is impaired social interaction and difficulty in reading social situations. A second is an insistence on sameness and the inflexible adherence to routines or ritualised patterns of behaviour. In the appellant’s behaviour these traits and others were evident. In particular, he struggled with emotional regulation, often experiencing low frustration tolerance resulting in aggressive outbursts.
The appellant’s diagnosis has been advantageous to his rehabilitation. It has resulted in therapy being more directed to his needs and more effective.
The prosecutor provided the Magistrate with a copy of the appellant’s offender history. That document shows that the appellant was sentenced in 2003 for the offences of disorderly behaviour and property damage, carrying an offensive weapon in 2010, aggravated assault against a child or spouse in 2013, an assault in 2016 and failing to comply with a bail agreement and theft in 2017. The 2013 assault consisted of pushing his then partner against a wall and pinning her there. The assault occurred in the course of an argument and ceased when the appellant’s partner’s young son appeared. The appellant told the arresting officers that he was angry and frustrated with his partner. The appellant was convicted and entered into a bond in the sum of $500 to be good behaviour for 12 months. I have already referred to the circumstances of the 2016 assault upon AP and to the 2017 theft and breach of bail. The appellant has never been imprisoned save for the one month and six days he served pending this appeal.
The sentence
In his sentencing remarks the Magistrate records the fact of the appellants’ pleas of guilty and the related maximum discounts, the circumstances of the offending and the appellant’s personal circumstances as quoted above, the appellant’s antecedents and the content of AP’s victim impact statement. The Magistrate then referred to the context in which the offending occurred, being the custody and parenting proceedings, and to the appellant’s related explanation for his actions being “that the victim had some level of concerning sexual behaviour” which, in turn, caused the appellant “concern over the girls’ being taken from school by him and being with him”. The Magistrate then commented, “[t]here is also material to the effect that when with your partner the girls are to have limited contact with you”, before stating that his task was not to determine whether AP had behaved appropriately in taking the girls from school but to deal with the appellant “forcing … [his] … way into … [AP’s] ... home while the girls were present, causing distress to them and assaulting him, resulting in the injuries I have described and damage to his property”.
The Magistrate then turned to sentence the appellant. He said:
[13] In relation to the more serious charge of assault causing harm, my starting point is a sentence of two years imprisonment which I reduce to one year, two months and 12 days on account of your plea of guilty. In respect of the charge of damaging property, I start with two months and reduced that to one month and 12 days. Given that both of those offences occurred at the same time that will be concurrent with the sentence in respect of the charge of aggravated assault, giving a total head sentence of a period of one year, two months and 12 days.
The Magistrate then dealt with the question of whether the sentence should be suspended or served by way of home detention. He said:
[14] In some respects this is a difficult sentencing issue. As I queried before and confirmed, you are the primary income earner for your family and you have pleaded guilty to the offence. You have had a diagnosis of autism spectrum disorder. However, I need to give prime consideration in this matter to the protection of the community, both individuals and the community generally; and taking account of the nature of this offending and the history of previous offending, in my view you remain a risk at this stage to the safety in particular of the victim of this offending. In my view home detention is not appropriate because of the presence of the children at the address, and the conditions that would be applicable if I was to order home detention. Nor in my view is there a proper basis made out for suspension of the sentence of imprisonment or for the other orders that are provided for under the Sentencing Act.
The Magistrate then fixed a “shorter than usual” non-parole period of five months to allow the appellant to have the benefit of supervision in the community for a greater period before stating that he would “make the orders sought in respect of the intervention order” and order that compensation be made in the agreed amount.
Submissions
The errors subject of grounds two to five were, in effect, symptomatic of the error subject of the first ground of appeal. At paragraph four of his reasons[3] the Magistrate states the circumstances of the offending in terms suggestive of the then existing parenting arrangements being as set out in the Federal Circuit Court order of 5 December 2016. That was not the case. JP and KP had been living with their mother for the previous nine months by agreement and pursuant to that arrangement were, as at the date to the offending, to continue to live with their mother. AP picked the girls up from school without warning intending to force the restoration of the arrangements as provided for in the 5 December 2016 order. At paragraph 14 of his reasons[4] the Magistrate remarked that home detention was inappropriate because of the presence of JP and KP in the family home. But the orders of the Federal Circuit Court of 30 July 2018 did not condition the living arrangements for JP and KP with SR on DM not being present in the home. And further, with the commencement of Term 4 on 15 October 2018, the restriction requiring that he be “substantially not present” was discharged, if it had not ended sooner when recommended by the children’s counsellor. These two errors suggest that the Magistrate had not fully appreciated the context in which the offending occurred nor the personal context in which the appellant fell to be sentenced. This conclusion was supported by the inclusion in the Final Intervention Order of clause 11 as substituted by the Magistrate without notice which reflected an understanding of contact on the part of the appellant with KP and JP as being prohibited. In combination, at a minimum, it was said, the errors do not allow this Court the appropriate level of comfort that the Magistrate has sentenced fully grasping the circumstances of the offending and the offender.
[3] Reproduced above at [15]-[16].
[4] Reproduced above at [37].
Counsel for the appellant supplemented his primary submission by referring to the appellant’s autism which, he said, informed the appellant’s conduct and poor choices and yet did not appear to have attracted much weight in the Magistrate’s reasoning. Counsel was quick to concede that a “weight based argument” is not one that, generally speaking, can succeed, but it was offered nonetheless as a possible explanation, taken with the non-appreciation of the Federal Circuit proceedings and related parenting arrangements, as to why no mode of punishment other than immediate imprisonment was considered by the Magistrate to be appropriate. In all the circumstances, it was submitted, an immediate custodial penalty was plainly unreasonable.
Counsel referred to the fact that the starting point in sentencing for the assault was a head sentence of two years imprisonment which, having regard to the maximum of three years, was simply too long given that the assault was not premeditated, that the appellant had always responded to community-based sentences (none of the bonds he had entered into had been breached), and that the benefits the appellant had realised from rehabilitative efforts had improved since his diagnosis due to those programs now being better tailored to his needs. The Magistrate gave no consideration, it was said, to the benefits of an intensive corrections order the very purpose of which is to enhance rehabilitation in the community. Here, bearing in mind the appellant’s diagnosis, the prison experience could be expected to add little to his rehabilitation. More likely it would expose him to being preyed upon. In all the circumstances a penalty that did not require immediate imprisonment would appropriately punish, deter, protect and rehabilitate.
Counsel for the respondent submitted that the Magistrate’s reasons disclosed adequate consideration of the Federal Circuit Court proceedings and the context in which the offending occurred. Further, the reasons showed that the Magistrate had regard to the personal circumstances of the appellant and his recent diagnosis. This was particularly evident in the non-parole period imposed. He submitted that the offending could be characterised as being in the nature of domestic violence which contributed to its seriousness. There was a clear need to deter the appellant from offending within the sight or hearing of KP and JP. He also referred to the appellant’s antecedents, and in particular his history of violent offending and, as part of that, being violent toward AP. He then referred to the intervention order of 15 July 2016 and to the Federal Circuit Order of 5 December 2016 as being breached by the appellant’s contact with JP and KP. These factors pointed to a need to impose a sentence that would adequately deter the appellant from future violent offending. The seriousness of the offending, the impact of the offending upon AP, and the appellant’s antecedents in combination justified the approach taken by the Magistrate and served to deny any suggestion that the sentence was manifestly excessive.
Consideration
I accept the primary submission of the appellant. I am persuaded that the Magistrate did not appreciate fully the parenting and custody arrangements at the time of the offending, nor the effect of the orders made by the Federal Circuit Court in July 2018. In arriving at this conclusion I am particularly influenced by the fact of the unilateral decision on the part of the Magistrate to alter the terms of the agreed draft Final Intervention Order. The parties had agreed that clause 11 read as follows:
Notwithstanding the other terms of this order, the order is subject to Family Court Orders made from time to time by a court exercising jurisdiction under the Family Law Act 1975 (Cth).
Such clause was intended to have the consequence that the limitations placed upon contact by the Final Intervention Order with JP and KP could be relaxed to the extent that any order in the Federal Circuit Court proceedings permitted contact. And, indeed, at the time of the making of the Final Intervention Order the parties knew of the parenting and custody arrangements that had then been put in place by the Federal Circuit Court on 30 July 2018. However, the Magistrate determined not to include clause 11 as agreed but rather the following:
Notwithstanding the other terms of this order contact is permitted at dispute resolution or at a court hearing under the Family Law Act 1975, the Children’s Protection Act 1993 or at any other court or tribunal hearing.
It can be seen immediately that the Final Intervention Order no longer countenanced contact on the part of the appellant with JP and KP, as was permitted by the orders of the Federal Circuit Court, other than as was necessary to participate in legal proceedings. I cannot accept that without any indication to the parties the Magistrate intended to undermine what had been resolved by the Federal Circuit Court. This leads me to think that in paragraph four of his reasons where the Magistrate states that the “girls were to be with their mother that weekend” he did not appreciate that the then existing consensual arrangement that had been in place for nine months was to continue. Further, it leads me to think that in paragraph 14 of his reasons where he refers to home detention not being an available sentencing option “because of the presence of the children”, he has, respectfully, misunderstood the position.
The impact of AP unilaterally deciding to re-instate the arrangements contained in the 5 December 2016 Federal Circuit Court order without notice and after nine months of KP and JP living with SR and DM with AP’s consent, on any view of the facts, caused great distress to SR. That no doubt impacted upon the appellant. There is nothing to suggest that the appellant’s concern for KP and JP when he went to AP’s house was not genuine. It was not a case of the appellant attempting to enforce week about custody arrangements. JP and KP had, with the agreement of AP, lived with their mother and the appellant due to AP’s behaviour. That is not to minimalise the appellant’s conduct. Respectfully, it is to more accurately state the nature of the change in circumstances brought about by AP’s actions and to which the appellant responded. And, in having regard to that response, one must bear in mind his autism and the impact it must have had upon his problem-solving skills at that time. These factors are highly relevant to an assessment of the appellant’s blameworthiness. Having regard to them it occurs to me that a starting point of imprisonment for two years for the assault upon the appellant, bearing in mind that the maximum is three years, is high. It is more in keeping with a narrower appreciation of the context in which the offending occurred, namely, as an attempt by a man prone to anger to enforce week about custody arrangements by violence perpetrated against another man whom he detested.
In so concluding I have not overlooked the December 2016 assault upon AP. However, that assault occupied the lower end of the range of seriousness. Further, it was in the 10 or so months that passed thereafter that AP agreed that JP and KP should live with their mother and DM which occurred seemingly without serious incident involving DM and AP, or DM, until 28 September 2017.
In my view the Magistrate’s non-appreciation of the parenting and custody arrangements at the time of the offending, and of the effect of the orders made by the Federal Circuit Court in July 2018, are material factual errors that have resulted in the sentencing discretion miscarrying. No need arises to consider the balance of the grounds of appeal. I proceed to re-sentence.
Re-sentencing
In exercising the sentencing discretion afresh I am entitled to have regard to the appellant’s current circumstances. Those circumstances include the fact that he has served one month and six days of the sentence imposed by the Magistrate. Further, I am told that the prison experience has, for him, been particularly difficult, due to his autism and difficulties experienced with other prisoners.
The maximum penalty for the assault causing harm offence was imprisonment for three years and for the property damage offence, imprisonment for 10 years. On account of his pleas of guilty the appellant was entitled to a discount of up to 30% on any sentence imposed for the property damage offence and 40% in relation to the assault causing harm offence.
The offending was serious. Whatever the rights or wrongs of AP’s actions, the community cannot tolerate people resorting to violence or force of any kind as a means of resolving personal and relationship disputes. Here there was the added dimension of the Federal Circuit Court proceedings and the parenting and custody arrangements for JP and KP. The proper place for the resolution of disputes regarding the care and parenting of children where relationships have broken down is the Family and Federal Circuit Courts. People involved in such proceedings can expect little in the way of leniency from the criminal courts if they take matters into their own hands and offend in the course of doing so. In these circumstances general deterrence attracts significant weight.
The experience for AP, his mother, JP and KP must have been particularly frightening. I do not overlook the consequences for AP as set out in his victim impact statement.
I accept that the appellant’s actions were not premediated. I accept that he was genuinely concerned for JP and KP. I accept that his autism would have affected his ability to work through matters in the heat of the moment. I accept that he would also have been influenced by SR’s distress.
I place no weight on the breach of the intervention order of 15 July 2016 bearing in mind the parenting and custody arrangements that were then in place.
The appellant’s preparedness to use violence and his history of having done so is particularly concerning. I accept that to an extent his autism may, in part, explain his behaviour, but I do not accept that it excuses it. There is nothing to suggest that he is incapable of complying with the law or appreciating the response he can expect from the law if he resorts to violence. A penalty that specifically deters him from resorting to violence in the future must be imposed.
In Yardley v Betts King CJ said:[5]
It is necessary to keep firmly in mind the fundamental principle that the criminal law exists for the protection of the community. This protection is achieved, in my view, primarily by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. The aspect of deterrence of the particular offender and of others must not be overlooked. The courts must assume, although evidence is wanting, that the sentences which they impose have the effect of deterring at least some people from committing crime. Deterrence possesses particular significance in cases of unprovoked violence. The observations of Bray C.J. in Birch v. Fitzgerald are in point:
“Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated. Parliament has regarded a second offence of driving under the influence of liquor as falling into that category. A court will often in my view be justified in treating unprovoked violence in the same way in the absence of mitigating circumstances. As I said in Sellen v. Chambers: ‘Violence has increased, is increasing, and ought to be diminished, particularly violence by young men towards each other.’ It may be that the incidence of such violence will be reduced if it is brought home to those likely to resort to it that if they do they may very well be punching, striking, butting or kicking themselves into gaol.”
I am not, of course, saying that all such first offenders ought to be sent to gaol. There is a wide range for the proper application of judicial discretion.
[footnotes omitted]
[5] (1979) 22 SASR 108 at 112.

The appellant’s offending was not the product of drink or drugs. It was the product of anger. I hastily add that that emotional response must be understood in the light of the appellant’s diagnosis.
King CJ continued:[6]
The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations. They are summed up, in the aspects relevant to the present discussion, by Napier C.J. in Webb v. O’Sullivan.
“The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.”
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.
[footnote omitted]
[6] Yardley v Betts (1979) 22 SASR 108 at 112-113.
In my view the appellant’s aggressive tendencies are capable of explanation in no small part by his autism. Until recently he has had no assistance with his autism. To his credit he had the insight to refer himself for assessment and now is benefitting from assistance. Ensuring that the appellant continues to engage with professionals who can assist him in understanding his autism and how to deal with it is important to the amelioration of his risk of re-offending and to protecting the community.
King CJ continued:[7]
How are these principles to be applied to offences of assault? Assaults vary very greatly in seriousness. Some result in injury to the victim and some do not. Some are committed under provocation in the heat of the moment and others are wanton and premeditated attempts to impose the offender’s will on the victim by force. Some are mere man to man altercations and others are terrifying and cowardly examples of mass violence. Many other variations could be mentioned. The offenders vary from the normally law-abiding person who is caught up in a situation of stress which erupts into violence, to the habitual bully and thug. In some cases a term of imprisonment may enhance rather than diminish the prospects of the offender avoiding crime in the future. In other cases, a term of imprisonment may turn a usefully employed person into a frustrated unemployed person, may deprive the offender of the best and most stabilizing influences in his life by disrupting a good family situation, and may increase a propensity to crime by placing him in the company of criminals. The need for deterrent punishment will vary according to the circumstances of the offence.
[7] Yardley v Betts (1979) 22 SASR 108 at 113.
As I have said this was not a premediated assault. The appellant cannot be considered an habitual bully or thug. Nonetheless, in my view a sentence of imprisonment is appropriate. For the assault causing harm I would impose a sentence of imprisonment for 15 months. I reduce that by 40% on account of the appellant’s plea of guilty to nine months. I further reduce this sentence by one month and six days to account for the time that the appellant has already spent in custody to seven months and 25 days.
For the property damage offence I would impose a sentence of imprisonment for six weeks. I reduce that by 30% on account of the appellant’s plea to four weeks and one day. I would order that the latter sentence be served concurrent with the former resulting in an overall period of imprisonment of seven months and 25 days.
Had I been in the position of the Magistrate, upon arriving at the conclusion that the appropriate sentence is one of imprisonment for nine months, I would have ordered that the appellant serve three months of that period and suspended the balance on condition that he enter into a bond to be of good behaviour. However, I am sentencing afresh in different circumstances.
In the current circumstances I am persuaded that good reason exists to suspend the sentence of imprisonment I impose. That good reason is the sum of the following. First, the appellant has already served one month and six days in prison. Second, I accept that his imprisonment has had a profound impact upon him. Third, his imprisonment has been “hard” time in the sense that the punitive experience has been more intense than may ordinarily be expected. Here I am referring to his inability largely because of his autism to cope with other prisoners. Fourth, I take into account the anxiety that the appellant will have suffered since being bailed at the prospect of being returned to prison. Fifth, the Federal Circuit Court orders of 30 July 2018 purported to provide a road map for the ongoing parenting and custody of JK and KP by AP on the one hand and SR and DM on the other. The proceedings in the Federal Circuit Court have been lengthy and acrimonious. No doubt all involved have suffered, not the least JP and KP. To remove DM from his family now will only exacerbate that suffering, delay healing and compromise family life in SR and DM’s household. It may also delay the development of a workable relationship between SR and AP which again will place a strain on the children and their relationships with their parents. I accept that in some cases that consequence is the price that must be paid, but I am not persuaded that in this case it is necessary in order that the purposes of punishment be attained.
I would suspend the sentence I impose upon the appellant entering into a bond in the sum of $500 to be of good behaviour for two years. A condition of that bond will be that he be subject of supervision by a Community Corrections Officer and obey the lawful directions of that Officer including that he attend any courses or seek the assistance of a counsellor, psychologist or psychiatrist if it is considered that such courses or assistance would assist him.
Conclusion and orders
The appeal is allowed. The sentence imposed by the Magistrate is set aside. For the offence of assault causing harm the appellant is sentenced to imprisonment for seven months and 25 days. For the property damage offence the appellant is sentenced to imprisonment for four weeks and one day to be served concurrent with the sentence imposed for the offence of assault causing harm. Those sentences are suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for two years.
As for the appeal against the Final Intervention Order, the appeal is allowed. I will hear the parties further as to the appropriate orders to be made.