McKinnon v POLICE - [2018] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCKINNON v POLICE
[2018] SASC 168
Judgment of The Honourable Justice Hinton
13 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
Appeal against sentence.
The appellant pleaded guilty to five counts of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) and one count of contravening an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The Magistrate ordered that the appellant enter into a bond to be of good behaviour for 18 months which was subject to three conditions, the third being that the appellant not intentionally strike or push his two children, without consent, under any circumstances, except when acting to defend one child from harm, threatened by the other child.
The appellant appealed on the ground that the Magistrate erred in including condition 3 in the bond. The Crown conceded the appeal on the basis that condition 3 was expressed with insufficient precision.
Held, per Hinton J allowing the appeal, the good behaviour bond entered into by the appellant is varied by deleting condition 3 and substituting two conditions in its place, being:
[3] Until the expiration of this bond, you will attend the Father’s Journey Program provided by AnglicareSA and, if such program is completed or comes to an end, undertake with AnglicareSA any follow-up program or complementary program that AnglicareSA may provide that deals with being a father and or parenting skills or such other program as, in the event of no program with AnglicareSA being available, your community corrections officer may direct that deals with being a father and or parenting skills.
[4] Until the expiration of this bond, you will be subject to supervision by a Community Corrections Officer from the Edwardstown Office of the Department of Correctional Services (6/938 South Road, Edwardstown SA 5039, ph: (08) 8229 6900) and must report in person to that office and the Community Corrections Officer assigned to supervise you within two working days of agreeing to be subject to this condition, and thereafter obey all reasonable directions provided by the Officer in relation to fulfilling the requirements imposed by condition 3 of this bond.

Criminal Law Consolidation Act 1935 (SA) s 20(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Sentencing Act 2017 (SA) s 97, referred to.
Temby v Schulze (1991) 57 A Crim R 284; Macpherson v Beath (1975) 12 SASR 174; Williams v Marsh (1985) 38 SASR 313, considered.

MCKINNON v POLICE
[2018] SASC 168
Magistrates Appeal
HINTON J:

This is an appeal against sentence.
On 16 August 2018 the appellant, Rory McKinnon, was sentenced after pleading guilty to five counts of aggravated assault[1] and one count of contravening an intervention order.[2] In relation to each of the assault charges the circumstance of aggravation was alleged to be that the victim of the offence was a child of the appellant. The appellant has two daughters, S and H, aged 14 and 13 respectively.
[1] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The sentencing Magistrate summarised the circumstances of the offending as follows:
You have been a single parent to the two girls for about 12 years after their mother abandoned the family when the children were infants. Both of the girls have developed fairly significant behavioural issues which makes caring for them particularly challenging.
Your offending arose out of your frustration when trying to discipline them. In count 1, you punched one of the children causing bruising. In count 2, you slapped the child’s face. In count 4, you pushed the child to the ground while she was practising the clarinet. In count 6, you struck the other child twice to her left arm. Count 7 concerned you intervening in a fight between the two girls and you pushed one of them causing her to fall to the floor and you pushed her with your foot.
You accept by your pleas that you overstepped the mark. In doing so, you have breached their trust. They have been dependent upon you and when your behaviour came to light, after you breached the intervention order which was put in place for their protection, your bail conditions resulted in the children being removed from your care. That is very unfortunate because it has had a traumatic effect on them both.
The conduct subject of counts 6 and 7 also formed the basis for the breach of the intervention order charge.
The sentencing Magistrate convicted the appellant of each count on the Information. She declined to sentence the appellant, determining that it was appropriate to dispose of the matter by ordering that the appellant enter into a bond in the sum of $500 to be of good behaviour for 18 months.[3] The bond was subject to the following three conditions:
1.   To be of good behaviour and comply with all of the conditions of this bond.
2.   To come up for sentence if called upon.
3.   I will not intentionally strike or push my two children, without consent, under any circumstances, except when acting to defend one child from harm, threatened by the other child.
[3]    Sentencing Act 2017 (SA), s 97(1).
In his Notice of Appeal the appellant contended that the sentencing Magistrate erred in including the third condition in the bond. The Crown conceded the appeal on the basis that condition 3 is expressed with insufficient precision.
To the extent that a condition in a bond purports to establish a norm of conduct to which the particular offender must conform on pain of punishment, such norm must be one that the offender can recognise and avoid. If it is not it will likely be either ineffective or oppressive. For this reason the norm should be stated with precision and be capable of certain identification by the offender. Hence in Temby v Schulze Olsson J said:[4]
… it is vital that any condition be expressed in unambiguous and definitive language, so that the person submitting to it is left in no doubt as to what are the precise obligations to be satisfied.
[4] (1991) 57 A Crim R 284 at 289.
In the present case the Crown submitted that it was unclear whether under condition 3 the children could consent to an assault to which, according to the general law, they could not consent. It is also unclear whether the appellant could push either of his children for innocent purposes such as on a swing or away from a hazard.
It having been conceded that the sentencing discretion miscarried it is for this Court to sentence afresh.
It was not submitted that the Court should impose a penalty any different in character to that imposed by the Magistrate. Rather, it was assumed that this Court would re-sentence imposing a conviction and requiring the appellant to enter into a bond to be of good behaviour under s 97 of the Sentencing Act 2017 (SA), as the Magistrate did. Submissions focused on the conditions of the bond and, in particular, any substitute designed to achieve the same purpose as condition 3.
Section 97 of the Sentencing Act 2017 (SA) is a merciful provision that has as its primary focus the rehabilitation of the offender. It is in the rehabilitative prospects of the offender that good reason will generally be found to proceed in the manner permitted by s 97.
The section vests a broad discretion in a sentencing court as to the inclusion of conditions in a bond and the nature of those conditions. In Macpherson v Beath Bray CJ referred to the desirability of certainty in the expression of a condition in a recognizance in order that an offender know “just what conduct … will subject him to … incarceration.”[5] The Chief Justice deprecated the imposition of conditions “designed to control the defendant’s private life in contexts only indirectly related, if at all, to the crime for which he is being punished.”[6] He also warned against excessive paternalism.[7]
[5] (1975) 12 SASR 174 at 180.
[6] Macpherson v Beath (1975) 12 SASR 174 at 181.
[7] Macpherson v Beath (1975) 12 SASR 174 at 181.
In Williams v Marsh, in relation to the power to impose a recognizance to keep the peace as formerly provided for in s 70ab of the Justices Act 1921 (SA), Cox J observed:[8]
I think the courts should be wary of reading limitations to s. 70ab that Parliament has not chosen to prescribe for itself. (Compare s. 5(1)(c) of the Offenders Probation Act.) Obviously any additional conditions that a court might decide to include in any particular case should be appropriate to the circumstances of the offence and the offender in question and, as with all forms of punishment, be no more than the circumstances reasonable (sic) require. It will never be proper to impose conditions that will operate harshly or unreasonably, or which may fairly be thought to be merely intrusive or officious. Certainly they will need to be directly related to the offence which led to their imposition. It would not be a proper use of s. 70ab for the court merely to take the opportunity offered by a man’s conviction to attempt a general reform of his character that might be thought desirable. It is a power to be used with circumspection.
[8] (1985) 38 SASR 313 at 316.
Counsel for the respondent submitted that it would be appropriate to substitute condition 3 with the following:
I will not discipline or punish either of my two children by striking or pushing them.
Such condition, it was submitted, would meet the preventative/protective purpose underpinning the original condition. Further, by withdrawing from the appellant the ability to use any force to discipline his children, the risk of the use of unlawful force is lessened.
Counsel for the appellant submitted that the suggested substitute, like condition 3, was unnecessary. The appellant had made significant progress in improving his parenting skills since he was first charged. It was enough that the first condition of the bond required that he remain of good behaviour which necessarily included only the use of lawful force in disciplining his children.
At this juncture it is convenient to say something about Mr McKinnon’s personal circumstances. In this regard I draw upon the following materials which were provided to the Magistrate — a statement from the appellant’s sister, Jane McKinnon, dated 12 April 2018, a letter from Lynn Johnson, Leader Wellbeing and Student Engagement at H’s Primary School, dated 7 May 2018, two reports from Sarah Kordick, a psychologist with Adelaide Psychological Services, dated 7 May and 10 August 2018, and two letters from George Garcia of AnglicareSA’s Families in Focus.
The appellant is 52 years old. He is self-employed. His previous involvement with the criminal justice system is limited and primarily consists of driving related offences.
As mentioned, the appellant has been the sole carer of his two daughters ever since the girls were very, very young. As also mentioned, S is now 14 years old and attending high school whilst H is 13 and in her last year of primary school. Both S and H have developed behavioural issues which sometimes manifest in significant conflict between them. H in particular suffers from global developmental delay, poor emotional regulation, low levels of academic functioning, and anxiety. H’s response to her anxiety problems is often anger, and she is prone to physical and verbal outbursts.
In December 2017 S and H were removed from the appellant’s care upon him being charged with assaulting them as a condition of his being granted bail. The girls lived with their paternal aunts who separated them in order to manage their behaviour. Jane McKinnon reports that H needs constant attention and guidance throughout each day. H’s “meltdowns” or “episodes” occur several times a day and often she is either disinclined or unable to listen to reason or respond to positive distractions. Ms McKinnon was unaware of the difficulties her brother faced. Prior to his being charged he had “kept the pressures to himself all this time, neither asking for help from family members or accepting suggestions from the school”.
Since their father’s arrest the girls were referred by their doctor to Adelaide Psychological Services where they have both seen Ms Kordick. In her report of 10 August 2018 Ms Kordick states:
…[S]… and …[H]… have experienced multiple traumatic events in their lives. Early in their lives their mother abandoned them and left them in the care of their father … Towards the end of 2017 they were removed from the care of their father … They were placed with their aunts during that time with limited understanding of when or if they could return to live with their father. They lived with their aunts for 6 months. During that time …[S]… and …[H]… talked to their father most nights but were not allowed to see him due to an intervention order. It is not clear to me why supervised visits were not allowed during this time. It is my opinion that seeing their father would have decreased the impact of being removed.
Ms Kordick reports that S was angry at being taken from her father. She wanted to know why he had not had the benefit of support. H was said to have stated that she did not want the assaults to happen again, but wanted to live with her father.
The girls have returned to live with their father. Since doing so Ms Kordick has seen them both on more than one occasion. With respect to S, Ms Kordick reported:
I have seen …[S]… twice since she returned to live with her father. She was very happy to be home with him. At the first session, …[S]… identified that it had been more traumatic for her whilst she was with her aunts than it had been living with her dad during the assaults. At the following session, …[S]… stated there were several changes she had noticed: they were getting out more as a family; they were spending more time with family and friends; and she had more autonomy to spend time with her friends provided her father knew where she was. She also stated that generally things were the same at home but her father was managing stressful situations differently: he was more in control; he was calmer; and when he was angry he expressed it appropriately.
S also told Ms Kordick that she was doing better in school.
With respect to H, Ms Kordick reported:
I have seen …[H]… four times since she has returned to live with her father. The first time I saw her after her return she was visibly different. She presented as happy, relieved, more settled in herself, her confidence had improved. She was openly affectionate with her father and has continued to be. She reported she was less worried about things and identified this was because her father gets her to school on time. It may also be linked to her feeling more stable at home and she may also be coping better. This would support the notion that being home has led to a reduction in stress and anxiety and explains the reduction in emotional outbursts.
Ms Kordick added:
I have observed …[H]… and Mr McKinnon’s relationship during these sessions. I have noted that …[H]… responds well to Mr McKinnon, even when there is feedback provided to correct her. In similar situations with her aunts, she was reactive, would become angry and shut down. It is my opinion that Mr McKinnon manages her well. It is evident to me they have a secure attachment.
I have not had much opportunity to observe …[S]… with her father. However, what I have seen indicates that …[S]… is happy and relieved to be back home with her father. She presented as more relaxed in sessions and more open to talking about how things were going for her.
Ms Kordick records that the conflict between S and H remains and is the subject of ongoing work. Importantly Ms Kordick observes:
It is important to acknowledge …[S]… and …[H]…’s mother abandoned them at a very young age and their father has been their sole carer since then. They have a strong attachment to him and he has provided an environment that is mostly secure in caring for them. I also want to highlight that being a parent is difficult; being a single parent is more difficult; and, being a single parent managing a high needs child with no support is even more difficult. This situation highlights the need for this family to have intensive support in place including: respite for Mr McKinnon; psychological support for each family member; additional support for …[H]… for her disability.
Since being arrested and charged the appellant has engaged in counselling in an attempt to improve his parenting abilities. Further in March 2018 he successfully completed the “Dad Factor” program and is currently attending the “Father’s Journey” program, both programs being provided by AnglicareSA. On appeal counsel for the appellant advised that participants of the Father’s Journey program meet on a monthly basis.
I return to the submissions made by counsel. Counsel for the appellant contended that conditions 1 and 2 of the bond were all that was required to deter the appellant from re-offending against his daughters in the future. A condition in the terms of the proposed substitute condition 3 was resisted but a condition requiring the appellant to continue to attend AnglicareSA was not.
Counsel for the respondent alluded to the protective purpose underpinning condition 3 as imposed by the Magistrate. She submitted that to achieve the Magistrate’s purpose, bearing in mind the nature of the offending and the Magistrate’s opinion that it was likely in the future that the appellant would lose his temper in frustration despite his best efforts, that the proposed substitute condition 3 was necessary.
It was submitted that it was appropriate to include within a bond conditions intended to protect and deter even if such conditions prohibited the offender from engaging in conduct that was otherwise lawful. As much is plain from the circumstances in Williams v Marsh provided, as Cox J observed, that there is “a direct and obvious relationship” between the risk of the offender re-offending and the prohibited lawful conduct.[9]
[9] (1985) 38 SASR 313 at 318.
Counsel for the respondent contended that a substitute condition that the appellant continue in his involvement with AnglicareSA was not opposed, but would not, it was submitted, have the effect of causing the appellant to resist the temptation to assault one of his daughters.
The appellant’s offending was serious. The Magistrate commented that it would ordinarily attract a period of imprisonment. She determined, however, that it was appropriate to deal with the appellant leniently. Respectfully, I agree with the Magistrate’s approach.
The Magistrate’s intention in including condition 3 in the bond is understandable. There are no doubt difficult challenges ahead for the appellant and his daughters, and it may be expected that the appellant will be tested. The Crown has not seen fit to report the appellant to Families SA so that he and his daughters might enjoy the additional support that specialists at Families SA may offer. Despite this, in this Court the Crown embraces the Magistrate’s assessment of the risk of the appellant re-offending. That risk arises because of the family dynamic. I do not think it can be doubted that it is in both the community’s best interests and the girls’ best interests that, as matters stand, the girls should live with their father. However, doing so puts them at risk. It seems to me that the criminal law is a blunt tool to be used in managing that risk and securing the best interests of the children.

In the past an intervention order proved inadequate to prevent the appellant assaulting his daughters in frustration. In the circumstances I doubt that condition 3 and the substitute condition will likely have any different effect in the heat of the moment over and above the consequences associated with conditions 1 and 2. If he succumbs to the temptation to assault either or both his daughters, he can expect to be called up to be sentenced for the assaults to which he pleaded guilty and will face the prospect of immediate imprisonment and separation from his daughters, not to mention having to live with the consequences of the harm he will have caused them. In the circumstances I do not think that proposed condition 3 adds much.
What does appear to have worked in reducing the risk to the girls is the appellant’s engagement with AnglicareSA. In these circumstances, supporting and better equipping the appellant to deal with the challenges he faces as the sole parent of S and H, and offering additional assistance to address S’s and H’s individual needs, such as might be available from Families SA, so that a loving family environment is fostered in which the girls can flourish seems to me the better guarantee against further offending. Further, less directly, but nonetheless effectively, ongoing involvement with AnglicareSA and the programs offered to assist in parenting as required by a bond will also remind the appellant of his peril should he assault either or both of his girls. Certainly supervision by a Community Corrections Officer, which will be necessary to ensure compliance with any condition that the appellant continue his involvement with AnglicareSA, will provide an ongoing reminder.
In the circumstances, I do not consider it appropriate to vary the bond to include the proposed substitute for condition 3. Rather, I will include a condition that until the expiration of the bond the appellant continue to attend the Father’s Journey Program provided by AnglicareSA coupled with a condition that the appellant be subject to supervision by a Community Corrections Officer. I make plain that my intention is that the Community Corrections Officer support the appellant in his involvement with AnglicareSA and the ongoing improvement of his parenting.
Conclusion and orders
I allow the appeal to the extent that the bond entered into by the appellant on 16 August 2018 is varied by deleting condition 3 and substituting in its place the following conditions:
3. Until the expiration of this bond, you will attend the Father’s Journey Program provided by AnglicareSA and, if such program is completed or comes to an end, undertake with AnglicareSA any follow-up program or complementary program that AnglicareSA may provide that deals with being a father and or parenting skills or such other program as, in the event of no program with AnglicareSA being available, your community corrections officer may direct that deals with being a father and or parenting skills.
4. Until the expiration of this bond, you will be subject to supervision by a Community Corrections Officer from the Edwardstown Office of the Department of Correctional Services (6/938 South Road, Edwardstown SA 5039, ph: (08) 8229 6900) and must report in person to that office and the Community Corrections Officer assigned to supervise you within two working days of agreeing to be subject to this condition, and thereafter obey all reasonable directions provided by the Officer in relation to fulfilling the requirements imposed by condition 3 of this bond.