VONSTANKE v Police - [2010] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VONSTANKE v POLICE
[2010] SASC 15
Judgment of The Honourable Justice Duggan
4 February 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant charged on information with one count of aggravated assault and one count of contravention of restraining order - appellant charged on complaint with failure to comply with bail agreement and contravention of restraining order - Magistrate imposed sentence of imprisonment for four months in respect of offences charged on information and sentence of imprisonment in respect of five months on the offences charged in the complaint - Magistrate ordered sentences be served cumulatively, resulting in head sentence of imprisonment for nine months - whether sentence manifestly excessive.
Appeal dismissed - sentence of immediate custodial imprisonment appropriate in circumstances - term of imprisonment imposed within Magistrate's discretion.
R v Banens (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Legoe and von Doussa JJ, 18 November 1987); R v Lennon (2003) 86 SASR 295; R v Wilkinson [2008] SASC 172, considered.

VONSTANKE v POLICE
[2010] SASC 15
Magistrates Appeal: Criminal

DUGGAN J: The appellant was charged on information with aggravated assault and contravening a restraining order. He was further charged on complaint with failing to comply with a condition of a bail agreement and contravening a restraining order.
The appellant pleaded guilty to all charges and was sentenced to a single penalty of imprisonment for four months on the offences charged in the information. He was sentenced to a single sentence of imprisonment for five months on the offences charged in the complaint. The sentences were ordered to be served cumulatively, resulting in a head sentence of imprisonment for nine months.
It was argued on appeal that the sentence is manifestly excessive.
The victim is the appellant’s domestic partner. He was 33 years of age at the time of the offences and had been in a relationship with the victim for approximately 11 years. They have three children. During their cohabitation they lived at Carpenter’s Rocks in the South East of the State.
The offences were committed against a background and history of domestic violence which led to a restraining order being placed on the appellant on 8 April 2004. The restraining order was imposed when the appellant was convicted of two counts of assault against the victim on 2 April 2004. On that occasion the appellant was sentenced to imprisonment for nine months. The Court directed that he serve three months of the sentence and the remainder was suspended upon him entering into a bond to be of good behaviour for six months after release.
On 22 February 2005 the appellant appeared before the Court on an application following upon the breaching of his bond to be of good behaviour. The breach was admitted and the appellant’s bond to be of good behaviour was extended for a further six months.
The offences of aggravated assault and…

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 VONSTANKE v Police

Details

AGLC: VONSTANKE v Police [2010] SASC 15
Case: [2010] SASC 15
Decision Date: 4 February 2010

CaseChat Overview and Summary

In the case of Vonstanke v Police, the appellant challenged the sentence imposed by the Magistrates Court of Victoria. The appellant was convicted of multiple offences including aggravated assault, contravention of a restraining order, and failure to comply with bail conditions. Following the conviction, the Magistrate imposed a sentence of imprisonment for four months for the offences charged on information, and a separate sentence of five months for the offences charged on complaint. The sentences were ordered to be served cumulatively, resulting in a total sentence of nine months imprisonment.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The appellant argued that the term of imprisonment was inappropriate and excessive given the circumstances of the case. The court was required to determine whether the sentence imposed by the Magistrate fell within the bounds of judicial discretion and whether it was appropriate in the circumstances.

The court considered the nature and severity of the offences, the appellant's criminal history, and the need for the sentence to reflect the seriousness of the conduct. The court found that the sentence imposed was within the Magistrate's discretion and was appropriate in the circumstances. The court rejected the appellant's contention that the sentence was manifestly excessive, concluding that the term of imprisonment was justified. The appeal was dismissed, and the sentence of immediate custodial imprisonment was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of the original sentence.

Orders