Schmidt v Police No. Scgrg-00-1119

SCHMIDT v POLICE
[2000] SASC 444

Magistrates Appeal

1................ DUGGAN J....... The appellant was convicted after a trial in the Port Adelaide Magistrates Court of breaching a restraining order. He was fined $500.00. He now appeals against conviction and sentence.

The appellant was formerly married to Michele Schmidt. They have a child Laura Schmidt, who was born on 23 February 1993. The appellant and his former wife separated shortly after this child’s birth. Michele Schmidt successfully applied for the making of a restraining order against the appellant in 1993 and a further restraining order was made on 27 September 1994. That order restrained the appellant from:
“1..... Attending at or being in the vicinity on premises at which Michele Carrie Schmidt may from time to time reside or be employed.
2.Contacting or approaching (directly or indirectly) whether in person, by telephone, writing or otherwise with [sic] Michele Carrie Schmidt.
3...... Assaulting or harassing, threatening or intimidating Michele Carrie Smith.
4.Contacting or approaching any of the children Rebecca Slater, David Shannon Slater, or Laura Schmidt, except in relation to the child Laura, any access arrangements as ordered by the Family Court of Australia.”
The Slater children are Mrs Schmidt’s children from a previous relationship.
There is also in place an order of the Family Court of Australia which sets out in considerable detail the circumstances under which the appellant is permitted to have contact with his daughter Laura. As part of that order the appellant is permitted contact with Laura every other weekend commencing on Friday night and concluding on Sunday night. Arrangements are in place for Laura to be handed over on premises operated by the Children’s Access Program.
The appellant and Michele Schmidt gave evidence before the magistrate. Michele Schmidt lives at West Lakes Shore with her partner Richard Thorpe, his son Greg, Rebecca Slater and Laura. On Wednesday 20 July 1999 Michele Schmidt left the house at about 7.00 pm with Laura and Rebecca. When she returned later that evening she was advised by Greg Thorpe that the appellant had made a telephone call to the house. She then told those at the house not to answer any further calls and the answering machine was turned on. The appellant then made two further telephone calls which were recorded on the answering machine and, later, on a tape which was tendered at the hearing.
The first telephone call which was not recorded took place at approximately 8.00 pm. The appellant spoke to Greg Thorpe and asked that Laura telephone him. A transcript was made of the other telephone calls which were recorded. Some words on the recording are indistinct, but a transcript of the calls (P15) contains most of what was said. The transcript sets out the content of the calls as follows:
“Thank you. My name is John. It’s .......o’clock at night and I was just told that Laura is not at home and I’d like to know where she is. I’m Laura’s dad and I’d like to know what’s going on there because it sounds like the whole family was on hippy drugs or something. Before Laura gets home I’ve got no problems of asking in a quiet, sensible manner, exactly what is going on in that house. And I want Laura to ring me when she gets home. My phone number is 8554 3506. Thank you very much. Bye.
New Conversation Begins/...
It is completely tape recorded for everybody to hear in every court that you may wish to imagine. Why is not Laura at home right now? Big question. I’m very concerned and I want to know tonight. I want someone to answer me tonight. You’ve got my phone number. Bye.
New Conversation Begins/...
My name is John Schmidt, Mr. Thorpe. I wish to inform you that I am going to start and make phone calls to this number on a very regular occasion to talk to my daughter. If you have any problems with that, you are going to have to go through your wife, Michele, to go through that procedure in the Family Court of Australia. I do not have a problem with that. I do have a problem with you withdrawing me from my daughter. Apparently she is not home tonight - yet. I want to know why and I’m going to bring it to the attention of a lot of courts and I can say to you to relay to Michele, that the whole situation is not over until she decides it is over. I don’t have to decide, its up to Michele.
You have my phone number, my phone number is 8554 3506. If Michele want to even try to use this against me, I am going to bring evidence against her which I’ve never ever brought before and she’s done. All I want to do is talk to my daughter on a regular occasion. You deny me my daughter and I will deny you yourself. I’m glad you’ve got it tape recorded because you’ve got a family yourself, haven’t you Richard?”
I have listened to the tape recording of the telephone calls and I agree with the learned magistrate’s assessment that the appellant spoke in an aggressive manner throughout much of what is recorded.
The appellant gave evidence. He agreed that he made the calls. He traced some of the acrimonious history following his separation from his wife. He said he was having difficulty in relation to the occasions on which he was to have contact with his daughter and he said that his former wife influenced Laura against seeing him. He said Laura’s birthday was on 23 July and he was concerned that he would not be able to see her on that date. He said he tried to contact her on 20 July through the telephone calls because he was being prevented from seeing her and he wanted to make sure that he would be able to see her on her birthday.
The learned magistrate found that, although the appellant might have been motivated originally by concern about the contact arrangements, he used the occasion of the telephone calls to address other matters. These included the whereabouts of Laura on that evening. The magistrate said in his reasons for judgment:
“He was not to concern himself that night with where Laura was, whether they had gone out or any other matter by telephone. If one just analyses in a cursory the way the various topics that were canvassed, it included a demand that immediate information be supplied about where Laura was; it included a suggestion that it sounded like the whole family were on drugs; it included a demand to be told exactly what was going on in the house; it included a request on two occasions that Laura telephone him; it included an assertion that he was going to make telephone calls on a number of occasions to talk to his daughter; it included a suggestion that the daughter was being withdrawn from him; it included a demand that he talk to his daughter on regular occasions and it included what really in my view could be properly understood by a reasonable listener to be a threat when he said and I quote ‘You deny me my daughter and I deny you yourself. I am glad you have got it tape recorded because you have got a family yourself, haven’t you Richard’. I say that could be reasonably understood by a listener as a threat because the words tend to indicate that and also the manner in which they were expressed on the tape also tends to indicate that.”
The learned magistrate concluded:
“By way of summary, I find that the defendant deliberately and intentionally, in breach of a restraint order made by the Port Adelaide Magistrates Court in 1994 and contrary to the terms of the contact order made by the Family Court in 1998, attempted to communicate by telephone with the guardians of Laura Schmidt, both with the intention of getting Laura to telephone him and also to generally make the allegations and criticisms and assertions which are a feature of the conversation which I have alluded to. I find that the two telephone conversations constituted a course of action on 20 July which amounted to a breach of clauses 2 and 4 of the Domestic Violence Restraint Order, and I therefore find the defendant guilty of the charge.”
Mr Scragg, for the appellant, complained that the learned magistrate interpreted para 4 of the restraining order too widely. Mr Scragg said that the words “except in relation to the child Laura, any access arrangements as ordered by the Family Court of Australia” permitted the appellant to contact Laura and speak to her about access arrangements. In my view, the exception expressed in the order is confined to contact with is part of the actual access arrangement, not discussions arranging, or in anticipation of, such contact. However that may be, the issue of the contact arrangements, and particularly those for seeing his daughter on her birthday, are not raised in the statements which he made over the telephone. As the magistrate pointed out, the calls were used by the appellant to raise a number of complaints including the fact that his daughter was not at home on this evening and he did not know why. He also used the occasion to imply criticism of his former wife and to convey those feelings to her. That this is so is evident from an answer he gave in cross-examination to the question why he did not mention Laura’s birthday in any of the transcribed statements. He said:
“I think that is where the common sense comes into the whole phone call. The common sense comes into it where all I am trying to do in the phone call is to say to Michelle you are still a shit. You still haven’t told the truth. I have still got the evidence here. The court still accepted that evidence. Then all I am trying to do is say to Richard talk some sense into this woman.”
The argument advanced on the hearing of the appeal that the magistrate was wrong in saying that it was inappropriate for the appellant to anticipate a breach of the contact arrangements on 23 July is beside the point. As I have remarked and as the learned magistrate found, this may have been in the mind of the appellant when he rang. However, his comments concentrated on other issues.
Other arguments put forward by Mr Scragg strayed into the merits of the appellant’s complaints about his wife’s attitude towards him and his concern for his daughter. Whilst one can sympathise with the predicament of a parent not being able to receive as much access as desired to that person’s child, this consideration was not relevant to the question as to whether the restraining order had been breached, except perhaps in that it might explain the motive behind such conduct.
While the appellant did not speak directly to his wife, it is clear that he wished to express his feelings to her in an indirect way by leaving the messages on the answering machine. At one stage of the conversation he stated that he wanted the message he was giving to be conveyed to Michele Schmidt. He expressed the same motive in the passage which I have quoted from his evidence. This indirect approach to his wife is sufficient, by itself, to constitute a breach of the restraining order. I reject the argument that an intention on the appellant’s part to use the occasion as a means of ensuring that his former wife comply with the Family Court order in some way excuses what would otherwise be a breach of the restraining order.
In my view there was ample evidence to establish a breach of the restraining order and the appeal against conviction must be dismissed.
There remains the question of penalty. I have said that the appellant was fined $500. Whilst acknowledging the appellant’s lack of previous convictions and the fact that he had hitherto obeyed the restraining order, his conduct on this occasion underlines the purpose of such orders. Deterrence is an important consideration in imposing a penalty for breaches of restraining orders of this nature. The learned magistrate gave extensive reasons for imposing penalty and these remarks do not disclose any error in the application of sentencing principles. The fine imposed cannot be regarded as outside the sentencing discretion. The appeal against sentence will also be dismissed.

[2000] SASC 444

20 December 2000