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 contravening a restraining order charged on information took place on 22 July 2009. The offence of assault is classified as aggravated because it was committed against the appellant’s domestic partner.
The Magistrate summarised the circumstances of these offences in his sentencing remarks. The victim suspected that the appellant was having an affair with another woman. She had collected some documents which she printed from the hard‑drive of the appellant’s computer. In an attempt to obtain the documents from the victim the appellant pushed her forcibly backwards onto a chair after grabbing her and trying to take the documents from her. He eventually took the documents after pushing her onto the chair. These actions constituted the assault. However, the appellant’s actions generally on this occasion also constituted a breach of the domestic violence order which prohibited the appellant from assaulting, intimidating or harassing the victim.
The victim was fearful of the appellant’s conduct and she was prevented from contacting others to assist her by the actions of the appellant in cutting the power cable to her telephone.
The appellant was interviewed by the police in relation to these matters. He denied the alleged conduct including the punching and forcible taking of documents from the victim. He claimed that the victim fabricated the details of the incident. He said the victim made up a story so that he could be arrested and she would get custody of the children.
The appellant was released on bail in relation to these matters. One of the conditions of bail was that he not contact or approach the victim.
The Magistrate stated in his sentencing remarks that the appellant repeatedly breached the bail agreement. He said that the appellant contacted the victim almost daily through Facebook, sending her messages and love songs. Furthermore, on about six occasions the appellant positioned himself at various locations where the victim was accustomed to driving and on these occasions he held up a sign which stated that he loved her. On other occasions the appellant had flowers delivered to the victim. It is clear that the appellant’s general conduct in this respect constituted harassment and was therefore a breach of the restraining order. It was also a breach of his bail agreement.
The Magistrate found that the victim was put in fear by the assault on her and that she did not feel safe. He found that this occurred because of the conduct and demeanour of the appellant. He said that her attempts to contact someone for assistance were thwarted by the appellant. The Magistrate referred to the appellant’s version to the police, most of which was retracted by the appellant after his plea of guilty. The Magistrate rejected an assertion by the appellant that he took a cable from the computer because the victim was running up a large bill due to her use of the internet. Instead the Magistrate accepted the prosecution version that this was done as part of a further attempt to prevent the victim from communicating with others. In my view this finding was open on the material before the Court.
Counsel for the appellant described the assault as no more than a pushing of the victim onto a chair. However, the Magistrate was entitled to take a more serious view of the incident. While it is true that the appellant suffered no physical injury, she was put in considerable fear. She was subjected to forceful actions by the appellant in removing the papers from her and forcing her into the chair. Although physical injury may aggravate an assault, it is relevant to bear in mind that the essence of an assault as opposed to a battery is the fact that the victim is put in fear. Here the victim was isolated and subjected to force while the appellant attempted to prevent her from obtaining assistance.
Although the appellant was not to be punished for previous offences, the Court was entitled to take into account that this was not an isolated incident. Furthermore, the effect of the incident on her was to be considered against the background that she had been subjected to physical assault by the appellant in the past.
Personal and general deterrence play an important role in offences involving domestic violence.[1] This is particularly so in the case of a repeat offender. Furthermore, Parliament has acknowledged the importance of deterrence in such cases by declaring that an offence of violence against a domestic partner is an aggravated offence attracting an increase in the maximum penalty over and above that applicable in the case of an offence of common assault. The fact that the assault constituted a breach of a restraining order made by the Court is a further factor to take into account in considering the single sentence imposed in respect of the assault and breach of restraining order.
[1] R v Banens (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, King CJ, Legoe and von Doussa JJ, 18 November 1987 at 7-8 (King CJ)); R v Lennon (2003) 86 SASR 295 at [12]; R v Wilkinson [2008] SASC 172.
The offences committed by the appellant while on bail were regarded as serious by the Magistrate, particularly as they demonstrated defiance of authority. The Magistrate pointed out that while the appellant was on bail in relation to offences which included a breach of a restraining order, he continued to defy the restraining order which remained in place. He did so by breaching the restraining order on an almost daily basis. At the same time these actions were breaches of his bail agreement.
In the light of these considerations it was open to the Magistrate to conclude that an immediate custodial sentence was appropriate. The term of imprisonment which was imposed was within the bounds of the Magistrate’s discretion.
The appeal will be dismissed.