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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKinnon v POLICE

Details

AGLC: McKinnon v POLICE [2018] SASC 168
Case: [2018] SASC 168
Decision Date: 13 November 2018

CaseChat Overview and Summary

McKinnon v POLICE involved an appeal against the sentence imposed by the lower court, specifically concerning the conditions of the appellant's bond. The appellant contested the conditions of the bond, which included attending a Father’s Journey Program provided by AnglicareSA and being supervised by a Community Corrections Officer. The case was heard in the court of appeal, where the appellant argued for a variation in the conditions of his bond.

The court was required to determine whether the conditions imposed on the appellant's bond were appropriate and whether they should be varied. The appellant argued that the specific condition regarding attending the Father’s Journey Program should be substituted with another program or condition. The court needed to weigh the arguments presented and decide whether the existing conditions were suitable or if modifications were warranted to achieve the objectives of the bond.

The court considered the arguments and concluded that the existing conditions were generally appropriate but could be refined. The court decided to replace the contested condition with one that required the appellant to attend the Father’s Journey Program provided by AnglicareSA and to be supervised by a Community Corrections Officer. This decision aimed to ensure that the appellant continued to improve his parenting skills and received the necessary support. The court allowed the appeal in part and varied the bond by substituting the contested condition with the new conditions specified.

The court made clear that its intention was for the Community Corrections Officer to support the appellant in his involvement with AnglicareSA and his ongoing improvement in parenting. The court concluded by varying the bond to include the new conditions and allowing the appeal to the extent specified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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