Rysz v Police - [2011] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RYSZ v POLICE
[2011] SASC 167
Judgment of The Honourable Justice White
7 October 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appeal against sentence - following guilty pleas, appellant was sentenced to a term of imprisonment for four months for failing to comply with a domestic violence restraining order and threatening to cause harm - the Magistrate declined to suspend the sentence.
Whether sentence excessive - whether Magistrate erred in refusing to suspend the sentence - whether an appeal court can have regard to evidence of facts occurring after the imposition of sentence.
Held: in the circumstances it was not appropriate to receive evidence of facts occurring after the sentence was imposed - the Magistrate did not err in imposing the sentence of imprisonment - the Magistrate erred in failing to consider exercising his power to suspend the sentence partially - appeal allowed.
Markarian v The Queen (2006) 228 CLR 357, applied.
R v C (2004) 89 SASR 270; Neill v Police [1999] SASC 270; Aylett v Police [2006] SASC 132; Police v Cadd (1997) 69 SASR 150; Wessling v Police [2004] SASC 51; Millhouse v Police [2008] SASC 353; Police v Carusi [2002] SASC 240, considered.

RYSZ v POLICE
[2011] SASC 167
Magistrates Appeal

WHITE J. Following his pleas, Mr Rysz was sentenced by a Magistrate for the offences of failing to comply with a domestic violence restraining order[1] and threatening to cause harm.[2]
[1] A contravention of s 15(1) of the Domestic Violence Act 1994 (SA), for which the maximum penalty is imprisonment for two years.
[2] Contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), for which the maximum penalty for a basic offence is imprisonment for five years.
The Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) of imprisonment for four months and refused to suspend that sentence. Had it not been for the Mr Rysz’s pleas of guilty, the Magistrate would have imposed a term of imprisonment of five months.
Mr Rysz contends first that the Magistrate erred in imposing a sentence of imprisonment at all; and secondly, that the Magistrate erred by failing to suspend, wholly or partially, the sentence which he did impose.
The sentence imposed by the Magistrate involved the exercise of a discretionary judgment. As such, the circumstances in which this Court will intervene with the sentence on appeal are limited. The Court is not entitled simply to substitute its own opinion as to the appropriate sentence. The approach to be applied is that stated by the plurality in Markarian v The Queen:[3]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".[4]
[3] [2005] HCA 25; (2006) 228 CLR 357.
[4] Ibid at [25]; 370-1.
Factual Circumstances
Mr Rysz is now 61. He is married but he and his wife have been separated for about 15 years. His wife now has another partner.
On 19 September 2010, Mr Rysz telephoned his wife and, as the Magistrate found, “ranted and raved” at her. He called his wife “a bitch” but at the same time told her that he still loved her. Mr Rysz then spoke to his wife’s partner and threatened him, saying “You’re dead meat”. By making the telephone call, Mr Rysz breached a domestic violence restraining order made on 9 April 1999, which restrained him from “contacting or communicating directly or indirectly, whether in person, by telephone, in writing or otherwise” his wife. By threatening his wife’s partner Mr Rysz committed the offence of threatening harm.
The Magistrate accepted that when Mr Rysz made his threat, he did not in fact intend any harm although he knew that his wife’s partner may well be afraid that he would do so.
Mr Rysz has a significant relevant offending history. In December 1996 he assaulted his wife by punching her in the face and his daughter by slapping her in the face. He was convicted for two offences of common assault and sentenced to imprisonment for two months. However, that sentence was suspended upon him entering into a bond to be of good behaviour for a period of two years and to comply with other conditions.
As noted earlier, a domestic violence restraining order was made in April 1999. The materials before the Magistrate did not disclose the circumstances in which that order was imposed.
Before September 2010, the appellant had breached the domestic violence restraining order on seven separate occasions: once in 1999, four times in 2000, once in 2002, and once in early 2003. He was sentenced on three separate occasions for those breaches. On each occasion, Mr Rysz was convicted but discharged on a bond to be of good behaviour for a period of 12 months, and to comply with certain conditions.
Most of Mr Rysz’s breaches of the domestic violence restraining order have comprised telephone calls, but on some occasions he has attended at his wife’s address. In particular, in April 2002 he went to his wife’s house on her birthday and, when things got out of hand, through a rock through a small window.
Mr Rysz was also convicted in June 2003 for the offence of carrying an offensive weapon but the Magistrate noted that there was no suggestion that he had been carrying the weapon (a knife) for any purpose associated with his wife.
Many of Mr Rysz’s offences were committed at times when he has been affected by alcohol. Mr Rysz has had problems with alcohol, as is evidenced by his five separate convictions, in the period between 1974 and 1981, for offences of driving under the influence or of driving with the prescribed concentration of alcohol in his blood.
Mr Rysz has also taken anti-depressant medication for many years. In the two weeks before September 2010 he had ceased taking that medication and had increased his consumption of alcohol. The offences committed on 19 September 2010 occurred at a time when he was intoxicated.
Mr Rysz told a psychologist who assessed him for sentencing purposes that he had abstained from alcohol since May 2010. The same submission was made to the Magistrate. Mr Rysz also says that he now accepts that he has no prospects of re-establishing a relationship with his wife. Understandably, the Magistrate had some reservations about accepting these submissions at face value.
A pre-sentence report provided to the Magistrate by the Department for Correctional Services suggested that Mr Rysz’s compliance with the bonds previously imposed upon him had been reasonably good, although not exemplary. In particular, Mr Rysz had not complied with all the treatment regimes offered to him in relation to his alcoholism.
At the time of the offending, and at the time of sentencing, Mr Rysz lived with his mother. She is aged and frail and suffers from cancer. For some time Mr Rysz has acted as her carer. Mr Rysz’s role in that regard was put to the Magistrate as a reason why a sentence of imprisonment should not be imposed.
The Magistrate’s Reasons
The Magistrate took a serious view of Mr Rysz’s offending. He said:
The offences which you have committed are serious, particularly against the background of your prior offending towards your ex-wife. They warrant sentences which will operate to deter you from such offending, having regard to that background, and in a very real way operate to deter others who might be inclined to offend in such a manner. The need for general deterrence is heightened by the fact that these offences arise out of your previous domestic relationship, in circumstances where you have failed to accept, over a significant period of time, the ending of that relationship and you have failed to abide by orders of the court imposed for the protection of your ex-wife and failed to be deterred from penalties imposed on previous occasions. These are matters which heighten the need for the penalty also to be one which will specifically deter you from similar offending in the future.[5]
[5] At [20].
While accepting that imprisonment of Mr Rysz would have a significant effect upon his mother, the Magistrate considered that that impact was not so exceptional as to justify not imposing a sentence of imprisonment. He considered that a sentence of imprisonment was appropriate in the circumstances.
The Magistrate refused to suspend the sentence of imprisonment which he imposed, saying:
… You have previously had the benefit of a suspended sentence and that has not deterred you from further offending. You have shown some insight now into the impact of your offending but this has to be seen in the context of your history of offending against your ex-wife which, in this case, extended to her new partner. I bear in mind your age. I bear in mind your recent determination to give up drinking and maintain your medication and the recent coming to terms with the end of your relationship. I take into account the care that you provide for your mother and as I said, I form the view that imprisonment, now looked at in the context of the question of suspension, will not result in hardship of such a nature to justify suspending the sentence. In my view there are no good grounds for suspending the sentence which I have imposed and that sentence will commence forthwith.[6]
[6] At [24].
As noted earlier, after making allowance for the pleas of guilty, the Magistrate imposed a single unsuspended sentence of imprisonment for four months.
The appellant has already served one month of that sentence. On 17 August 2011 he was released on bail, pending the determination of the present appeal.
A Sentence of Imprisonment
The first submission made on behalf of Mr Rysz was that the Magistrate had erred by imposing a sentence of imprisonment.
Counsel emphasised Mr Rysz’s age and submitted that, as some seven and a half years had elapsed since Mr Rysz’s last breach of the domestic violence restraining order, the present breach should have been characterised as an isolated lapse into offending behaviour. Counsel also submitted that the conduct of Mr Rysz comprising the breach was at the lower end of the scale of seriousness of conduct of its type. Finally, Counsel emphasised Mr Rysz’s role in acting as a carer for his aged mother.
In addition to the matters put to the Magistrate, counsel sought to rely on an affidavit of Mr Rysz. In that affidavit, Mr Rysz deposes that on 7 August 2011 (about three weeks after he was sentenced and while he was in custody) his mother had slipped and fallen at home, breaking her hip. She is presently in hospital and it is expected that upon discharge, she will go to a rehabilitation centre for at least two or three weeks. Mr Rysz’s concern is about the care arrangements for his mother if he is still in custody when she is discharged from the rehabilitation centre. Mr Rysz also offers the view that if he had been home at the time, his mother would not have slipped and fallen in the circumstances in which she did.
The circumstances in which a court will receive additional evidence on an appeal against sentence are limited. In general, evidence of matters occurring after sentence can be received on appeal only if that evidence shows “the true significance” of matters that existed at the time of sentence and, by implication, matters that were material to the passing of sentence.[7] It may be that s 42(4) of the Magistrates Court Act 1991 (SA), which governs the present appeal, permits fresh evidence to be received in a wider range of circumstances,[8] but the possibility that that may be so was not the subject of any submissions.
[7] R v C [2004] SASC 244 at [15]; (2004) 89 SASR 270 at 275.
[8] Cf Neill v Police [1999] SASC 270 at [19]-[21]; Aylett v Police [2006] SASC 132 at [11]-[15].
It has to be kept in mind, however, that the cases in which the effect of a sentence on an offender’s family may warrant a reduction in the sentence which would otherwise be imposed are generally of an exceptional kind. Doyle CJ stated the relevant principle in Neill v Police:[9]
The magistrate was obliged to consider the impact on Mr Neill's family of a sentence of imprisonment. He was required to do that by s10(n) of the Sentencing Act. In R v Adami (1989) 51 SASR 229 the court held, applying principles that the court has long applied, that the effect of a sentence on the offender's family will be used to reduce the sentence only in exceptional cases. That has to be so. A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence. But there are cases when the effect is so great that the court can rely on it to reduce the sentence that is otherwise appropriate. The court does so out of consideration of the welfare of the family, and society's interest in their welfare, and not merely as an act of mercy to the offender. Even then the court must still give weight to the other relevant factors. The process of sentencing does not become one in which the impact on the offender's family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender's family may be given effect to by reducing an otherwise appropriate sentence.[10]
In the circumstances I consider it appropriate to proceed on the basis that in order for the fresh evidence to be receivable on appeal, it would have to shed some new light on a matter which was before the Magistrate and, in addition, be of a kind which, in combination with the other evidence concerning the mother’s condition before the Magistrate, was capable of showing that this was an exceptional case.
[9] [1999] SASC 270.
[10] Ibid at [24].
In my opinion, the circumstances disclosed by Mr Rysz in his affidavit are not of that kind. The affidavit did not establish the period during which Mr Rysz’s mother is likely to be in the rehabilitation centre. I accept however that it is possible that that period will encompass, at least in part, the same period during which Mr Rysz will be in custody. However, the evidence did not establish that Mr Rysz’s brother and sister will not be able to provide the kind of assistance which their mother will require. For these reasons, I consider that Mr Rysz’s affidavit should not be received as fresh evidence.
Although I consider that counsel’s remaining submissions concerning the imposition of a sentence of imprisonment have some force, I do not consider that they should be accepted. As already noted, Mr Rysz has seven previous convictions for the offence of breach of a domestic violence restraining order. As a result, he has been subjected to three separate bonds to be of good behaviour. There is a limit on the extent to which Magistrates can continue to extend lenience in these circumstances.
Domestic violence restraining orders are protective in their nature. Their purpose is to protect family members who are vulnerable to acts of domestic violence. They are orders of the Magistrates Court and should be respected as such.
The breach of a domestic violence restraining order is in some respects analogous to the offence of driving a motor vehicle on a road while disqualified by court order from doing so. Both involve some defiance of a court order; both negate the protection of the community which they were intended to achieve; and considerations of general and personal deterrence are important in each case. This Court has held that imprisonment is appropriate in the ordinary case of driving while disqualified.[11] There are however relevant differences between the offences: breaches of a domestic violence restraining order are usually readily detected and reportable; they often occur in circumstances in which some emotional overlay is present; in some of the cases which come before the courts (but not the present) the beneficiary of the order has instigated the breach, or has facilitated, or otherwise been complicit in circumstances leading to, the breach; a domestic violence restraining order usually is of longer duration than a period of licence disqualification; and the conduct which may constitute the breach of the former can vary widely in nature.
[11] Police v Cadd (1997) 69 SASR 150.
Nevertheless, I consider that, having regard to the important role of domestic violence restraining orders and of the necessity of courts promoting respect for their own orders, a sentence of imprisonment may be appropriate in those cases, like the present, in which the order has been repeatedly breached and the offender has not taken advantage of the lenience previously extended to him. In cases of contumacious breaches of order, considerations of both general and personal deterrence are especially important.
In the present case, the fact that Mr Rysz had gone seven and a half years without a breach was an important consideration but the Magistrate did not overlook that. In my opinion, it was open to him to consider that a sentence of imprisonment was appropriate. I would not interfere with that part of the sentence.
Should the Sentence have been Suspended?
Counsel’s alternative submission was that even if a sentence of imprisonment was appropriate, the Magistrate should have suspended the sentence either wholly or in part. Section 38(1) of the CLSA permits a court to suspend a sentence of imprisonment if it considers that good reason exists for doing so. When the sentence imposed is more than three months but less than one year, sub-s (2a) authorises the sentencing court to direct that the defendant serve a specified period, being not less than one month, of the imprisonment in prison and to suspend the remainder upon the defendant entering into a bond to be of good behaviour (and to comply with any other conditions imposed by the court), with that bond coming into effect on the defendant’s release from prison.
Mr Rysz has already served one month of his sentence in custody. It is no longer possible for the sentence imposed by the Magistrate to be wholly suspended. In that circumstance, I consider it preferable to consider whether the Magistrate erred by not ordering a partial suspension of the sentence of imprisonment which he imposed.
Besanko J considered the application of s 38(2a) of the CLSA in Wessling v Police.[12] Although finding that the Magistrate had not erred in declining to suspend the whole of the sentence of imprisonment, His Honour concluded that the Magistrate had erred by not considering s 38(2a). Besanko J said:
However, I think the position is different when consideration is given to whether or not the power in s 38(2a) of the CLSA to suspend part of the sentence should be exercised. It seems that counsel did not refer the magistrate to s 38(2a) and the subsection is not referred to in the magistrate's reasons. Even though counsel did not refer to s 38(2a), this was a case which clearly called for a consideration of whether the power in that subsection should be exercised. The difficulties of striking an appropriate balance in this case between the considerations of deterrence on the one hand, and rehabilitation on the other, were readily apparent. In my opinion, the failure to consider the exercise of the power in s 38(2a) of the CLSA was an error which justifies the intervention of this Court.[13]
Thus, Besanko J considered that the failure of a magistrate in some cases to consider the exercise of the power in s 38(2a) may be an error justifying the intervention of this Court on appeal.
[12] [2004] SASC 51; (2004) 88 SASR 57.
[13] Ibid at [29]; 63.

Kourakis J took a similar view in Millhouse v Police,[14] saying:
[I]t does not appear that the Magistrate gave any consideration to partially suspending the sentence pursuant to s 38(2a) of the CLSA. I was informed that counsel who appeared before the Magistrate did not bring that section or the possibility of partial suspension to the Magistrate’s attention. The Magistrate nonetheless had an obligation to consider the section. The question to be determined on appeal is whether the failure of the Magistrate to refer to partial suspension means that he overlooked it. …
Partial suspension is a relatively recent innovation. It is not a commonly imposed penalty. The fact that counsel did not refer to s 38(2a) is further reason to think that the Magistrate failed to consider the section at all, as opposed to simply failing to mention it in his reasons.[15]
(Citation omitted)
[14] [2008] SASC 353.
[15] Ibid at [18]-[19]. See also Police v Carusi [2002] SASC 240 at [24].
In the present case, the Magistrate did not mention s 38(2a). That does not mean necessarily that the Magistrate overlooked the power in s 38(2a) to suspend part of the sentence. However, two matters suggest that the Magistrate may have done so. The first is the acknowledgement of counsel on the appeal that no reference was made to sub-s (2a) in the submissions before the Magistrate. The second is the careful and considered nature of the Magistrate’s reasons. In that context, it seems likely that if the Magistrate had considered exercising the power in sub-s (2a) he would have mentioned it.
In my opinion, this was a case in which the exercise of the powers in s 38(2a) should have been considered. That is not to suggest that s 38(2a) must be considered in all cases in which a sentence of imprisonment of more than three months but less than 12 months is imposed. However, when suspension is at the heart of an offender’s sentencing submissions, it will usually be appropriate for a magistrate to address s 38(2a).
I am, accordingly, satisfied that the Magistrate has erred and that it is appropriate for this Court to reconsider the matter.
Re-Sentence
In my opinion, there was good reason for at least a partial suspension of the sentence of imprisonment. Since 2003, Mr Rysz has complied with the domestic violence restraining order for a long period. In that way he has evidenced a willingness to comply with the order of the Magistrates Court in 1999. His offending on 19 September 2010 does appear to be of an isolated kind.
Further, the offending is explained (although not excused) by the fact that it occurred at a time when Mr Rysz had ceased using his anti-depressant medication and was intoxicated. The report from the psychologist indicates that Mr Rysz has abstained from alcohol altogether since May 2010. While there will always be some doubt as to whether he can sustain that abstinence, it is evidence of positive steps towards rehabilitation.
Finally, while not underestimating the disturbing and unsettling effect of Mr Rysz’s conduct on his wife and her partner, I agree with counsel’s submission that it was not conduct of the more serious kind sometimes seen by the courts in offences of this type.
It is not possible now for this Court to make an order under s 38(2a). The Court cannot wind the clock back. Mr Rysz cannot, for example, be subjected to a bond to be of good behaviour during a period which has already elapsed.
In the circumstances, I consider that effect should be given to the result which I consider appropriate by setting aside wholly the sentence imposed by the Magistrate. In re-sentencing, I will take account of the fact that Mr Rysz has already served one month in custody and I will not impose any further custodial sentence. I will instead record convictions on both counts and then discharge Mr Rysz without imposing a further penalty upon condition that he enter into a bond to be of good behaviour.
Conclusion
For the reasons given above, I allow the appeal. I set aside the sentence imposed by the Magistrate. In its place, I record convictions on both counts but will discharge Mr Rysz without further penalty upon him entering into a bond in the sum of $500 to be of good behaviour, and to comply with the directions of the Community Services Officer assigned to him, for a period of 18 months. The Magistrate waived the Court and prosecution costs and I will do likewise. Mr Rysz will still have to pay the Victims of Crime Levy.