GREIG v POLICE No. SCGRG-99-969 Judgment No. S392

[1999] SASC 392

GREIG V POLICE

[1999] SASC 392
Magistrate’s Appeal
1 MARTIN J. (Ex tempore) The appellant pleaded guilty to ten offences of contravening a domestic violence restraining order contrary to section 15(1) of the Domestic Violence Act 1994. The maximum penalty was two years imprisonment. In addition, he pleaded guilty to one count of damaging property. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act") the Magistrate imposed one penalty of four months imprisonment. In addition he ordered that the appellant pay $30 compensation and allowed eight months in which to pay that amount.
2 The offences occurred against a breakdown of a marital relationship.  The appellant and the complainant had been married for approximately 20 years.  There are two children of the marriage who are aged nine and 12 years.  
3 In 1997 that marriage broke down in acrimonious circumstances which resulted in a separation in April 1997.   The children have lived with the complainant since the separation.  Access arrangements were in place until the family court revoked those arrangements in about June 1998. 
4 In January 1998, in one incident, the appellant committed three assaults upon the complainant.  The prosecutor informed the Magistrate that the appellant had committed an offence of assault on a family member and an offence of damage property.  On 13 March 1998, the appellant was convicted of those offences and sentenced to six weeks imprisonment.  That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of two years.   The offences currently under consideration were obviously a breach of that bond. 
5 Nine of the offences of breaching a domestic violence restraining order occurred over a two day period from 28 to 30 September 1998.  At that time, a domestic violence restraining order was in force against the appellant which restrained him from being on premises at a specified address or any other address at which the complainant may, from time to time, reside or work.  That order restrained the appellant from having any contact or communication whatsoever with the complainant other than for the purpose of complying with family court orders.  It restrained him from communicating with her at her place of work; from assaulting, harassing, threatening or intimidating her.  As mentioned, the Family Court order was in force which denied any access to his children. 
6 The appellant made numerous phone calls to the complainant, his own father and another person demanding that the complainant contact him.  He was also seeking to speak to his daughter.  On a couple of occasions he threatened there would be trouble if no contact was made. 
7 The Magistrate accepted threats were made in the calls and that the course of conduct was a harrowing experience for the complainant.  Implicit in his Honour's findings is a rejection of the appellant’s version to the police that he made peaceful telephone calls seeking to speak to his daughter.  The appellant suggested to the police that he was not in breach of the restraining order as he only made calls to speak with his daughter. 
8 The further contravention of a domestic violence restraining order and the offence of damaging property were both committed on 24 February 1999.  The complainant had changed residential address because she did not want the appellant to know where she was living.  By coincidence, the appellant drove into the street in which the complainant was living during the course of his employment as a delivery driver.   He saw the children in the front yard of the premises.  At that time he had not seen his children for over a year.  Counsel for the appellant advised the Magistrate that the appellant drove past several times and saw his children again.  They were calling out to him "Hello daddy" and he was sure they wanted to speak to him. 
9 While the appellant's discovery of the address at which his wife and children were living occurred by coincidence, his reattendance at the premises was deliberate and cannot properly be described as impulsive.   He returned in his own vehicle. 
10 There is a dispute between the complainant and the appellant as to the precise circumstances that followed.   The appellant maintained that the complainant has greatly exaggerated the magnitude of the whole incident to put him in the worst possible light.  He said that during the course of the argument that followed when he reattended, his wife said words to the effect "You are not going to see your children again".  This frustrated and upset the appellant and he broke the weather shield of her vehicle.  
11 It appears that the Magistrate took a different view and there is no reason for interfering with his Honour's finding.  He referred to the incident in the following terms:
"He, the appellant, happened to spy the children and then sometime later turned up in his own vehicle.  In that interim period she had gathered together her children when she thought it was safe because he wasn't there and got into their car which was parked in the carport behind the locked gates.  She was reversing out of the driveway and, as she did, the defendant drove into the driveway blocking her way.  Her version is that the children became upset and scared saying "no mummy, no mummy what do we do"?  Some five minutes lapsed before the defendant turned off the motor of his car, got out of it, leant on it, got the mail out of the letter box;  all the time she says she was terrified and petrified.  Eventually the children got out of the car.  The defendant came up to the driver's side of the victim's vehicle and ripped off the weather shield.   The wife said by that stage the children were frightened and crying.  The children then got out of the car and sat with the defendant.  The police attended subsequently.  The whole experience must have been terrifying to her and the children". 
12 The version of the events upon which the Magistrate acted conveys a distinctly different impression of the appellant's behaviour.  He is cast in a far more threatening and abusive light.  As I indicated previously, I see no reason to interfere with the basis upon which the Magistrate acted.  There can be no doubt that the appellant's behaviour was intimidating and totally unacceptable. 
13 When interviewed by the police, the appellant acknowledged being aware of the conditions of the restraining order.  He denied ripping off the weather shield and expressed the view that he had not broken the restraining order because he was not there to see the complainant.  He said he was there to see his children. 
14 During the course of submissions on behalf of the appellant, reference was made to the frustration’s that were experienced by the appellant following the breakdown of the marriage.  He was unable to accept the breakdown and found the separation from his children extremely difficult.  His frustration was exacerbated because he was prevented from speaking with his children on the telephone and he was unable to resolve financial matters that arose out of the delivery business that had been conducted by him and the complainant as a partnership. 
15 Counsel made a personal observation that he had noticed a vast improvement of the appellant's situation.   It was put to the Magistrate that most of the appellant's frustration had dissipated and the appellant had completed an anger management and domestic violence course which had greatly assisted his rehabilitation.  Importantly, the Magistrate was advised that the appellant had formed a new relationship with another woman and now accepted the restrictions that were placed upon him.  He no longer has any wish to attempt to revive the marriage. 
16 In his sentencing remarks, the Magistrate referred extensively to all the relevant facts concerning the appellant.  He mentioned a number of the submissions that had been made concerning the circumstances in which the offences were committed and the appellant's progress towards rehabilitation.  He referred to the fact that the appellant had undertaken the courses in anger management and domestic violence counselling and the submissions that, at the time of sentencing, the appellant had a "different mind-set".  His Honour observed that the appellant wanted to see his children, but was prepared to do what he was told by his legal advisors. 
17 There is no apparent error in the approach taken by his Honour.  I am concerned, however, that the entire focus of his Honour's approach was to emphasise the seriousness of the conflict and to make the briefest of references to what he had been told by way of submissions concerning matters of mitigation. 
18 Until the offences in March 1998, the appellant was a person of good character who had not previously been convicted of any criminal offence.  He is now aged 41 years.  He was entitled to the benefit of his pleas of guilty and to credit for having undertaken the courses to which I have referred.  These matters had to be considered in conjunction with the appellant's new personal circumstances.  The totality of the material before the Magistrate provided a sound basis for a finding that the appellant was successfully undertaking his rehabilitation and was unlikely to offend again. 
19 A further factor needed to be considered, namely, the effect of a sentence of imprisonment upon the appellant's employment.  It is not clear from his Honour's remarks whether it was put to his Honour that the appellant would lose his employment he was required to serve a period of imprisonment.  As his Honour was aware that the appellant was a delivery driver, it might be safe to assume that his Honour could not have overlooked the obvious effect on the appellant’s employment.
20 In this court an affidavit was tendered from the manager of a taxi truck company.  The appellant is a permanent driver on a sub-contractor basis with the company.  The manager has indicated that if the appellant was required to serve a term of imprisonment, another driver on a similar basis would need to be employed.  In that event the appellant would lose his contract because it would not be in the best interests of the company to terminate the new driver's contract after four months because of the cost involved.  It is obvious that serving a sentence of imprisonment would cause considerable hardship to the appellant and, potentially, would interrupt the progress of his rehabilitation. 
21 All of these matters needed to be weighed very carefully against the seriousness of the offending, and the need to deter others from committing offences of breaches of domestic restraining orders. His Honour was required to bear in mind the clear policy of the Sentencing Act as explained by Olsson J in Ienko v Kraft (1990) 53 SASR, 40, at 44:
"It should also be said that the clear policy of the Criminal Law (Sentencing) Act 1988 is that offenders should only be required to actually serve custodial sentences either because the inherent seriousness of the offending clearly demands such an approach or alternatively, because the conduct of an offender and the relevant circumstances in general inexorably point to that course as a necessary sentencing strategy of last resort."
22 Notwithstanding the seriousness of the offending and the fact that it was in breach of the bond imposed in March 1998, a strong case had been made out for the exercise of the discretion to suspend the sentence.  The strength of the case for suspension is reflected in a matter to which his Honour did not refer, namely, the attitude of the prosecution.  Counsel for the appellant advised the Magistrate that the prosecution had agreed it would not apply for the bond imposed in March 1998 to be estreated.  In itself this was a clear indication that the prosecution was aware of circumstances that led it to exercise its discretion against seeking to estreat the previous bond.  In addition, counsel for the appellant advised the Magistrate that the prosecution did not oppose a further suspended sentence.   While the prosecutor remained silent, in the absence of a challenge to that statement the Magistrate was obliged to act upon the basis that the prosecution took the attitude as explained by counsel.
23 His Honour was not obliged to mention the attitude of the prosecution to either the previous bond or the current matters.  Similarly, he was not obliged to suspend the sentence of imprisonment merely because the prosecution did not oppose that course.  His Honour would have been in error if he merely acceded to the course suggested by counsel for the appellant because the prosecution did not oppose that course.  It was important, however, for his Honour to bear in mind the attitude of the prosecution.  In Ienko v Kraft, Olsson J made the following observations with which I respectfully agree (p 43):
"Attention must also be invited to what recently fell from the High Court in Malvasso v The Queen (1989), 64 ALJR, 64. It there reiterated the fundamental sentencing concept that the sentencing discretion of the court must, in the final analysis, always be exercised in the public interest. It cannot be fettered by agreements made between the parties to criminal proceedings nor attitudes expressed by or on behalf of the prosecution.
That does not mean that, if some attitude is expressed by the prosecution - particularly if that attitude supports the extending of leniency to a convicted person - it should be ignored.  On the contrary, such a submission must clearly be given anxious and careful consideration and accorded due weight.  It must be taken that, in the normal circumstances and particularly in relation to cases coming before busy courts of summary jurisdiction, the prosecution is likely to have a more detailed knowledge of the background circumstances related both to the defendant and the commission of the offence or offences than the court and, as a matter of common prudence, a Magistrate should hesitate before rejecting a joint suggestion that leniency is appropriate.
On the other hand, at the end of the day, it may well be the situation that, having given due weight to submissions for leniency supported by the prosecution, a Magistrate properly feels unable to exercise a judicial discretion in that direction, having regard to the circumstances.  There can be no rigid rules and each matter must necessarily be assessed in light of the specific facts related to it."
24 In my opinion the Magistrate has fallen into error in not giving sufficient weight to the circumstances of mitigation and the principle that a custodial sentence to be served is a sentence of last resort.  He has erred in not giving anxious consideration to weighing the relevant factors including, in particular, the attitude of the prosecution.  In all the circumstances I have reached the view that the sentencing discretion miscarried to the extent that the Magistrate declined to suspend the sentence of imprisonment.  The circumstances and the antecedents clearly justify a sentence of imprisonment, but in my opinion the interests of the community, and that includes the complainant and her children, are best served if that sentence is suspended. 
25 The appeal is allowed and the sentence imposed by the Magistrate is set aside. In lieu thereof, I impose one penalty pursuant to s 18A of the Sentencing Act, namely, a sentence of four months imprisonment. That sentence will be suspended upon the appellant entering into a bond in the amount of $500 to be of good behaviour for a period of 18 months. It will be a condition of the bond that the appellant be under the supervision of a probation officer whose reasonable directions he shall obey concerning the undertaking of any counselling courses for treatment in connection with domestic violence and anger management. It will also be a condition of the bond the appellant perform 50 hours of community service during the term of the bond. The court fees and levy imposed by the Magistrate remain. The order for the payment of $30 compensation is set aside.