Wonga v Police - [2010] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Criminal)
WONGA v POLICE
[2010] SASC 126
Judgment of The Honourable Justice Gray
7 May 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal from two restraining orders imposed by Magistrate - restraining orders purported to restrain defendant from being within 10 metres of alcohol and not to let alcohol within 10 metres of brother and not to be within 50 kilometres of named towns - whether restraining orders valid.
Held: appeal allowed - restraining orders invalid - both outside scope of section 99 of Summary Procedure Act 1921 (SA) - consideration of power to impose restraining orders.
Criminal Law (Sentencing) Act 1988 (SA) s 19A(1); Summary Procedure Act 1921 (SA) s 99; Domestic Violence Act 1994 (SA) s 4 and s 5, referred to.
Police v Trzesniowski (2005) 93 SASR 136, considered.

WONGA v POLICE
[2010] SASC 126
Magistrates Appeal
GRAY J:
Introduction

This is an appeal from two restraining orders imposed by a Magistrate.
On 5 May 2009, the defendant and appellant, Harold Wonga, was sentenced in relation to, inter alia, three counts of aggravated assault against a police officer[1] and one count of hinder police.[2] The Magistrate imposed a sentence of imprisonment of eight months, suspended on entry into a good behaviour bond of 12 months of $11.00, and ordered that the defendant perform 96 hours of community service over an 18 month period. In addition, the Magistrate purported to impose a restraining order as follows:
There is also going to be a S19A order restraining you from being within 10 metres of alcohol for any reason whatsoever until further order and not to let alcohol within 10 metres of Daryl Wonga [the defendant’s brother] if defendant is looking after him, when Daryl in his company, inside or outside the APY Lands.
[1] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) which provides:
(1)A person commits an assault if the person, without the consent of another person (the victim)—
(a)      intentionally applies force (directly or indirectly) to the victim; or
(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)    the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)    there is a real possibility that the person will carry out the threat; or
(d)does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)      accosts or impedes another in a threatening manner.
…
(3)A person who commits an assault is guilty of an offence.
Maximum penalty:
(a)      for a basic offence—imprisonment for 2 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
[2] Contrary to section 6(2) of the Summary Offences Act 1953 (SA) which provides:
…
(2)A person who hinders or resists a police officer in the execution of the officer's duty is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
On 15 September 2009, the defendant was sentenced in relation to possessing liquor in a public place[3] and failing to cease loitering.[4] The Magistrate imposed a fine of $250.00 and purported to impose a restraining order as follows:
Not to be within 50 km of [Coober Pedy], [Port Augusta] or Alice Springs unless in the company of his father or travelling directly to from [sic] or attending at a [government institution] he is required to attend eg for med [treatment].
[3] Contrary to section 131(1) of the Liquor Licensing Act 1997 (SA) which provides:
(1)A person who, in a public place—
(a) consumes liquor; or
(b) has possession of liquor,
in contravention of a prohibition imposed by regulation is guilty of an offence.
Maximum penalty: $1 250.
Expiation fee: $160.
[4] Contrary to section 18(2) of the Summary Offences Act 1953 (SA) which provides:
(1)Where a person is loitering in a public place or a group of persons is assembled in a public place and a police officer believes or apprehends on reasonable grounds—
(a)that an offence has been, or is about to be, committed by that person or by one or more of the persons in the group or by another in the vicinity; or
(b)that a breach of the peace has occurred, is occurring, or is about to occur, in the vicinity of that person or group; or
(c)that the movement of pedestrians or vehicular traffic is obstructed, or is about to be obstructed, by the presence of that person or group or of others in the vicinity; or
(d)that the safety of a person in the vicinity is in danger,
the officer may request that person to cease loitering, or request the persons in that group to disperse, as the case may require.
(2)A person of whom a request is made under subsection (1) must leave the place and the area in the vicinity of the place in which he or she was loitering or assembled in the group.
Maximum penalty: $1 250 or imprisonment for 3 months.
The appeal is against the imposition of both restraining orders.
On 25 March 2010 I allowed both appeals and set aside the restraints imposed by the Magistrate. Otherwise the penalties imposed by the Magistrate remained undisturbed. These are my reasons for that decision.
The Relevant Legislation
The power to impose a restraining order is found in section 19A(1) of the Criminal Law (Sentencing) Act 1988 (SA) which provides:
A court may, on finding a person guilty of an offence or on sentencing a person for an offence, exercise the powers of the Magistrates Court to issue against the defendant a restraining order under the Summary Procedure Act 1921 or a domestic violence restraining order under the Domestic Violence Act 1994 as if a complaint had been made under that Act against the defendant in relation to the matters alleged in the proceedings for the offence.
It is to be observed that although the Magistrate did not nominate whether the restraint was ordered pursuant to the Summary Procedure Act 1921 (SA) or the Domestic Violence Act 1994 (SA), the orders made could not have been made utilising the power contained in the Domestic Violence Act. Sections four and five of that Act require, as a condition precedent, that the person for whose benefit the order is made be a member of the defendant’s family. The orders made by the Magistrate were not for the benefit or protection of any family member of the defendant and the defendant had not been charged with any offence alleging an act of domestic violence.
As a consequence, the Magistrate must have intended to exercise the power of restraint contained in section 99 of the Summary Procedure Act. That section provides:
(1)     On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a)there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b)the Court is satisfied that the making of the order is appropriate in the circumstances.
(2)     For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions—
(a)     the defendant follows a person; or
(b)the defendant loiters outside the place of residence of a person or some other place frequented by the person; or
(c)the defendant enters or interferes with property occupied by, or in the possession of, a person; or
(d)     the defendant—
(i)gives or sends offensive material to a person or leaves offensive material where it will be found by, given to, or brought to the attention of a person; or
(ii)publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a person; or
(da)the defendant communicates with a person, or to others about a person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or
(e)the defendant keeps a person under surveillance; or
(f)the defendant takes any other action in relation to a person or a person's property,
so as to reasonably arouse in the person apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
…
(3)     A restraining order may impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner.
…
(5)     In considering whether or not to make a restraining order and in considering the terms of the order, the Court must have regard to—
(a)     the welfare of any children who may be affected by the order; and
(b)the accommodation needs of any person who may be affected by the order; and
(c)any relevant family contact order of which the Court has been informed; and
(d)how the restraining order would be likely to affect contact (in accordance with a relevant family contact order or otherwise) between—
(i)the person for whose benefit, or against whom, the order is sought; and
(ii)    any child of, or in the care of, either of those persons.
…
[Emphasis added]
On appeal, it was submitted by the defendant and conceded by the Police that in the circumstances there was no power for the Magistrate to impose either restraining order, as the orders made were not made in accordance with the legislative requirements contained in section 99 of the Summary Procedure Act. It was said in particular, that the orders failed to nominate a protected person the subject of the order, and were consequently invalid.
Section 99 as excerpted above does not expressly mandate that an order under the section must be made for the benefit of a particular person. However, the terms of the section strongly suggest that the purpose of the section is that a restraint order only be made if a particular person requires the protection of such an order. The definition of intimidating or offensive behaviour in section 99(2) supports this construction. Each of the matters constituting intimidating or offensive behaviour relates to interferences by the defendant with another person, so as to reasonably arouse in that person an apprehension or fear of personal injury or damage to property. The terms of section 99(5)(d)(i) requiring the Court to have regard to how the restraining order is likely to affect contact between the person for whose benefit, or against whom, the order is sought, also indicates that the purpose of the section is to benefit or protect a particular person. It is to be observed that the section is only enlivened on a complaint under the relevant division of the Act. Further, a reasonable apprehension that the defendant may cause personal injury or damage to property or behave in an intimidating or offensive manner is required, for the Court to make a restraining order.[5] The provisions read together indicate that the purpose of the section is the protection of a particular person from either violent or threatening behaviour.
[5] Summary Procedure Act 1921 (SA) section 99(1)(a).
In Trzesniowski, after examining the legislative history and framework of the relevant provisions of the Summary Procedure Act, I concluded that the relevant purpose of restraining orders was to provide effective and immediate protection to persons fearing physical violence, damage to property or intimidating or offensive behaviour. In this respect I observed:[6]
The legislative history of the relevant provisions of the Summary Procedure Act discloses that it was the purpose of the legislature to provide effective and immediate protection to those persons fearing physical violence, damage to property or intimidating or offensive behaviour. In addition, safeguards are provided to ensure that persons subject to a restraining order are provided with opportunities to challenge, revoke or vary the order as appropriate in the circumstances. It is envisaged that persons other than the named complainants can be protected by restraining orders and that complaints can be made on the behalf of third parties. These policies are incorporated in the current legislative framework.
…
Division 7 of the Summary Procedure Act was intended to mirror the procedures contained in the Domestic Violence Act concerning the issuing of restraining orders. Both Acts were intended to ensure that victims of domestic violence receive maximum of protection from harm or abuse committed in their homes. Pursuant to the Summary Procedure Act, adults, police officers and, in some circumstances, children may bring a complaint and seek a section 99 restraining order. Such orders can extend protection to third parties not named as complainants. This is clearly intended by the legislative scheme and the provisions of the Act.
[6] Police v Trzesniowski (2005) 93 SASR 136 at [35],[54].
It is further to be observed that the Court is limited in the restraints it may impose by the terms of section 99(3), which provides that the restraints imposed must be necessary and desirable to prevent a defendant from acting in the apprehended manner.
The Restraints the Subject of Appeal
The purported restraining order of 5 May 2009 is invalid. The restraint does not nominate a particular person for whose benefit or protection the restraint is made. Furthermore, the restraint that the defendant not be within 10 metres of alcohol, was not necessary and desirable to prevent the defendant from reoffending in the manner the subject of the charge; namely, hinder and assault police. It is instructive to note that the terms of the restraint as imposed would result in a breach by the defendant if he merely walked past an unrelated individual who had alcohol on their person. In addition, the order imposed that the defendant not allow alcohol within 10 metres of his brother, Daryl Wonga, was not necessary and desirable to prevent the defendant from acting in the apprehended manner. It is to be observed that an order purporting to impose an obligation on an individual to take responsibility for a third party is not contemplated by the terms of section 99.
The purported restraining order of 15 September 2009 is also invalid. Again, the order is not directed to the benefit or protection of a particular person and is consequently outside the scope of section 99 of the Summary Procedure Act. In addition, the restraint on the defendant preventing him from being within 50 kilometres of Coober Pedy, Port Augusta or Alice Springs, was not necessary and desirable to prevent the reoccurrence of the offences charged; that is, possessing liquor in a public place and loitering.
It is to be observed that the intent of the Magistrate in imposing the restraints the subject of this appeal is clear. The Magistrate wished to prevent the defendant from being near alcohol and certain townships, both of which appear to be associated with the defendant’s history of offending. However, whatever the utility in restraining the defendant as attempted by the Magistrate, the restraints as imposed do not accord with the legislative provisions.
Conclusion
Both restraints imposed by the Magistrate were outside the scope of section 99 of the Summary Procedure Act.