Ironside v Police No. Scgrg-99-519, Scgrg-99-544, Scgrg-99-545 Judgment No. S301

[1999] SASC 301

IRONSIDE  v  POLICE
[1999] SASC 301

Magistrates Appeal

1. DUGGAN J     The appellant pleaded guilty in the Adelaide Magistrates Court to five breaches of a restraining order imposed on 7 May 1988.  The application for the restraining order had been made by a woman with whom the appellant was acquainted.  The order directed that the appellant was not to come within 100 metres of the woman or within half a kilometre of her residence or place of employment.

2. The circumstances relating to the breaches are as follows:

3. On 13 June 1998 the appellant and his son went to the door of the woman’s place of employment.  The woman saw the appellant as he was standing in front of the screen door at the entrance to the building.  The appellant’s son entered the premises.

4. The appellant again went with his son to the woman’s place of employment on 17 June 1998.  She saw them when she answered a knock on the door.  She shut the door and contacted the police.  Police officers arrived and spoke to the appellant.  He was questioned about the apparent breach of the restraining order on this occasion and the previous incident of 13 June.  He was reported for the two alleged breaches.

5. On 3 September 1998 the appellant went to the woman’s house.  She was in the house but did not answer the door.  Her son went to the door and there was an altercation between him and the appellant.   Police officers arrived and spoke to the appellant who was still standing at the door.  His wife was waiting in a vehicle parked nearby.  The appellant was arrested and charged with breaching the restraining order.  When questioned he said he should have read the order more carefully.  He said he wanted to talk to the woman about a letter he had received from his doctor.  He said he did not realise he was breaching the restraining order.

6. The appellant went to the woman’s residence again on 13 November 1998.  She was not at home, but a witness saw the appellant knock on the door of her premises.

7. On 25 November 1998 the appellant went to the woman’s house.   He knocked on the front door.  She saw the appellant but did not open the door.  He then left.

8. The learned magistrate convicted the appellant without imposing a penalty for the first three breaches.  In relation to the two November offences he convicted the appellant and sentenced him to imprisonment for 14 days.  However he suspended the term upon the appellant entering into a bond to be of good behaviour for a period of 12 months.  The appellant’s counsel argued on appeal that the penalties of imprisonment were manifestly excessive and that the learned magistrate failed to comply with the requirements of the Criminal Law (Sentencing) Act, 1988 s 11.   Section 11 provides as follows:

   “(1)   A sentence of imprisonment must not be imposed for an offence unless, in the opinion of the court -

   (a).... the defendant has shown a tendency to violence towards other persons;

   (b)the defendant is likely to commit a serious offence if allowed to go at large;

   (c).... the defendant has previously been convicted of an offence punishable by imprisonment; or

   (d)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.

   (2)    This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.”

9. The appellant is 65 years of age.  No previous convictions of any type were alleged against him.  There was evidence to the effect that he suffers from what his general practitioner called “several severe medical problems”.  According to the medical report, the appellant has suffered for many years from anxiety and depression.  He is in receipt of an invalid pension.

10. The respondent argued before me that the learned magistrate was not prevented from imposing a sentence of imprisonment. Counsel for the respondent submitted that the appellant came within the exceptions provided for in s 11(1)(c) and (d) of the Sentencing Act.

11. The argument that the  respondent had been previously convicted of an offence punishable by imprisonment was based on the premise that the convictions without penalty on the first three charges satisfied the requirement under subs (1)(c) that the appellant had “previously been convicted of an offence punishable by imprisonment”.  I reject this argument.  In my view the subsection contemplates a conviction for a relevant offence on a previous occasion.

12. The section imposes a limitation on the power of the courts in taking the serious step of imposing a sentence of imprisonment.  In my view the purpose of subs (1)(c) is to permit such a step to be taken (assuming that the sentence is otherwise justified) if the appellant comes to the court as a previous offender in a matter punishable by imprisonment.  I do not think the subsection was intended to have effect simply by reason of the technicality that the offender was previously convicted a few seconds before by the court.  (cf R v Lamprey [1992] 1 Qd R 294; The Queen v White [1967] SASR 184).

13. The next question is whether it can be said that “any other sentence would be inappropriate having regard to the gravity or circumstances of the offence” (s 11(1)(d)).  I have some doubt as to whether the learned magistrate considered this provision and decided that any other sentence would be inappropriate.   Under a similar provision in the Crimes Act (Cth) 1914 s 17A the court is required to state its reasons for deciding that no other sentence is appropriate.  There is no such provision under South Australian legislation, but in a case such as the present I think there are good reasons for adopting such a course as a matter of practice.

14. In the course of his sentencing remarks the learned magistrate said:

    “It seems to me that a short term of imprisonment, although suspended, will serve as a reminder, and a very firm reminder, of the need for you to comply with the terms of this restraining order.”

15. I agree with the magistrate as to the potential effect of the order which he made and, in view of the appellant’s attitude to the restraining order at the time of the offences, I sympathise with the magistrate’s view that the conduct “cannot be allowed to go on”.  However I am not convinced that any other sentence would be inappropriate.  The appellant has now been before the court in relation to these breaches and I am prepared to accept that this has jolted him into an understanding of the penalty which might now be imposed upon him for any further breaches.  He is on notice that s11 will not offer him any protection if he appears before the court again for breaching the restraining order which is still in operation.  In these circumstances I am of the view that fines in relation to the November offences would meet the circumstances of the case.

16. For these reasons the appeal will be allowed and the penalty imposed for the offences committed on 13 and 25 November 1998 will be quashed.  I intend to impose fines in relation to these matters and I will hear submissions from the appellant and the respondent as to the amount of those fines and the conditions for payment.