Zacher v The Queen - [2022] SASCA 83

Supreme Court of South Australia
(Court of Appeal: Criminal)
ZACHER v THE QUEEN
[2022] SASCA 83
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
25 August 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Application for permission to appeal against sentence.

The applicant pleaded guilty to the offences of unlawful choking and assaulting a prescribed emergency worker, contrary to ss 20A(1) and 20AA(3) of the Criminal Law Consolidation Act 1935 (SA). The first offence occurred during a protracted episode of domestic violence by the applicant against his partner and the second against a police officer who attended in response to a call by the victim.
In breach of an interim intervention order, the applicant sent text and voice messages to the victim and asked her to visit him. The applicant also contravened a separate intervention order in respect of a former partner by emailing her. He pleaded guilty to two counts of breaching a term of an intervention order, contrary to s 31(2aa)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The applicant was sentenced for each offence in the Magistrates Court. The total head sentence, allowing for a degree of concurrency, and reduced on account of the applicant’s guilty pleas and time spent in custody, was one year and 10 months imprisonment with a non-parole period of 12 months and 14 days, backdated to 16 August 2021. Despite a submission by defence counsel that the sentence of imprisonment should be suspended, the magistrate did not address the issue in his sentencing remarks.
The applicant seeks permission to appeal against his sentence on the ground that the magistrate erred in failing to give reasons for declining to suspend the applicant’s sentence of imprisonment or, in the alternative, that his sentence was manifestly excessive by reason of that decision.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.In circumstances where defence counsel sought a suspended sentence, and this was a potentially available sentencing option, the magistrate erred in failing to give any reasons for declining to suspend the applicant’s sentence of imprisonment.
2.Notwithstanding the magistrate’s process error, this Court declines to interfere with the sentence below on the basis that it is satisfied that the head sentence and non-parole period set by the magistrate were appropriate, and that there was not good reason to suspend the applicant's sentence of imprisonment.

Criminal Law Consolidation Act 1935 (SA) ss 20A(1), 20AA(3); Criminal Procedure Act 1921 (SA) s 116; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa)(a); Sentencing Act 2017 (SA) ss 3, 4(1), 19(1), 96(3), referred to.
Henry v The Queen [2022] SASCA 60; Kentwell v The Queen (2014) 252 CLR 601; R v Horstmann [2010] SASC 103; R v Robins [2016] SASCFC 55, considered.

ZACHER v THE QUEEN
[2022] SASCA 83
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: After pleading guilty, the applicant was sentenced in the Magistrates Court[1] for the following offences:
·unlawful choking, in contravention of s 20A(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (maximum penalty of seven years imprisonment);
·assaulting a prescribed emergency worker, in contravention of s 20AA(3) of the CLCA (maximum penalty of five years imprisonment); and
·two counts of breaching a term of an intervention order, in contravention of s 31(2aa)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (maximum penalty of a fine of $20,000 or imprisonment for four years).[2]
[1] Pursuant to s 116 of the Criminal Procedure Act 1921 (SA).
[2] This was the applicable maximum penalty at the time of the offending; it has subsequently been increased to seven years imprisonment.
For the offence of unlawful choking, the applicant was sentenced to two years and six months imprisonment. This was reduced by 15 per cent on account of the applicant’s plea of guilty, resulting in a sentence of two years, one month and 14 days imprisonment.
For the offence of assaulting a prescribed emergency worker, the applicant was sentenced to imprisonment for one week. This was reduced to six days on account of the applicant’s plea of guilty, and was made concurrent with the sentence imposed in respect of the unlawful choking offence.
For the two offences of breaching a term of an intervention order, the applicant was sentenced to six weeks imprisonment. This was reduced to one month on account of the applicant’s pleas of guilty, to be served cumulatively upon the penalty imposed for the unlawful choking offence.
The overall head sentence imposed was thus two years, two months and 14 days imprisonment. The magistrate fixed a non-parole period of 17 months. Both the head sentence and non-parole period were reduced on account of time spent in custody,[3] giving a total head sentence of one year and 10 months, and a non-parole period of 12 months and 14 days. Both the head sentence and non-parole period were backdated to 16 August 2021, the date on which the applicant’s home detention bail was revoked.
[3] They were reduced by three months and 23 days. In addition to time in custody, the applicant spent time subject to home detention conditions, but the magistrate indicated that only nominal credit was given for this time, given his breaches of his bail agreement.
The applicant seeks permission to appeal on the ground that the magistrate erred in failing to give reasons for declining to suspend the applicant’s sentence of imprisonment. In the alternative, he contends that his sentence was manifestly excessive by reason of the magistrate’s decision not to suspend his sentence of imprisonment.
For the reasons set out below, it is conceded, and we accept, that by failing to give any reasons for declining to suspend the applicant’s sentence of imprisonment, the magistrate fell into error. While we would grant permission to appeal, we would nevertheless dismiss the appeal on the basis that, upon any resentence, we would not have imposed any lesser sentence. In particular, we are not satisfied that there was good reason to suspend the applicant’s sentence of imprisonment.
Circumstances of the offending
The magistrate summarised the applicant’s offending in terms which reflected the prosecution factual summary, and the affidavit material upon which that summary was based. No challenge has been made to that magistrate’s remarks in this respect, and what follows draws heavily upon those remarks.
At the time of the choking offence, which occurred on the night of 12 January 2021, the applicant had been in a relationship with the victim for about 10 months. They were not living together, although the victim had been spending a lot of time at the applicant’s house.
The magistrate noted that this relationship had unfortunately been marred by family violence in the past. The police had previously been called to the applicant’s house. While this background was a relevant consideration, the magistrate made it clear that he was not sentencing the applicant for anything other than the offences to which he had pleaded guilty.
On the night of the offending, the applicant, the victim and her 14 year old son were both at the victim’s house. The applicant and the victim had argued earlier in the day. The argument related to the applicant commencing rehabilitation to address his substance abuse problems, and the future of their relationship more generally. Both the applicant and victim eventually calmed down, and the applicant cooked dinner. But then, at around 11.00 pm, as they were preparing to go to bed, another argument occurred. This one related to whether or not a window should be open. When the victim shut the window, the applicant stormed off. The applicant later returned with a kitchen knife and put it on the bedside table, saying “Do me a favour, kill me while I’m asleep”. The victim removed the knife and returned it to the kitchen.
Soon after this, the applicant began assaulting the victim. This was followed by a protracted and lengthy episode of violence over several hours, continuing into the early hours of 13 January 2021.
The violence began with the applicant holding the victim down on the bed. He positioned himself on top of her, holding her down. He had both of his hands around her neck, squeezing down. The victim managed to use her leg to kick him off her. Over the next few hours the applicant kept leaving the bedroom, but then returning to continue arguing with, and assaulting, the victim. He proceeded to hold his hands around the victim’s throat on at least three further occasions during the balance of the violent episode. On the last of these occasions, he did so while the victim was standing, and with such pressure that she eventually ‘blacked out’ and fell to the ground. The applicant’s response was to yell at her, telling her that she was being dramatic and faking it. He assaulted the victim again, hitting her to the back of the head several times, pressing her head into the bedhead, grabbing her by the face, and pushing her around the bedroom. He said to her that “I could kill you right now.”
It is appropriate to interrupt the narrative at this point to observe that the applicant was initially charged with four separate counts of choking over the course of the episode described above. The applicant was ultimately sentenced on the basis that he pleaded guilty to one count of choking, being the instance of choking described above as resulting in the victim blacking out. At the same time, it was accepted that the applicant was to be sentenced on the basis that this occurred in the context described; namely, during a protracted and lengthy episode of violence.
At one point during this episode, and prior to the charged instance of choking, the victim’s teenage son came into the bedroom and asked what was happening. The victim was scared that the applicant would assault him too, and so told him that everything was fine. As the magistrate observed, it is concerning that the presence and intervention of the victim’s son did not stop the applicant’s violence.
Eventually, at about 3.30 am, the victim managed to call the police. Even after she called the police, the applicant assaulted the victim by pushing her to the ground in the kitchen.
The victim was injured. She suffered contusions and haematomas to both of her temples and to the back of her head. Further, there were small burst blood vessels around her face and neck. She suffered chest tenderness.
Turning to the factual basis for the offence of assaulting an emergency worker, this involved an assault upon one of the police officers who attended the applicant’s house in the early hours of 13 January 2021, following the choking offence. The applicant was plainly in a very poor state of mental health at the time, and the police officer in question was involved in assisting to escort the applicant to the Flinders Medical Centre for treatment. The applicant was thrashing his body around. The police officer was trying to restrain him and calm him down. During this episode, the applicant headbutted the police officer.
The two breach of intervention order offences occurred a few months later, between June and August 2021. The first involved the breach of an interim intervention order in favour of the victim of the choking offence. There were several contraventions of this order, including text messages and voice messages. Following this initial contact, the victim agreed to see the applicant and went to his house. In early July, the victim said that she no longer wanted contact from the applicant, told him to stop contacting her, and blocked his number. The magistrate was provided with some of the messages sent by the applicant. They were not violent or threatening. Rather, they were regretful in tone, indicating that the applicant was distressed and upset. However, as the magistrate also observed, the applicant was well aware of the restrictions upon him in the intervention order and yet flagrantly disobeyed the terms of that order.
The second breach of intervention order offence involved contravention of an order that had been made in favour of the applicant’s former partner, C. Between 12 July and 2 August 2021, the applicant sent numerous emails to C in breach of that order. While the order permitted the applicant to have some contact with C for the purposes of discussing their children, the majority of these emails went beyond discussions about the children. Again, although not involving any overtly threatening behaviour, the magistrate characterised the emails as involving a clear and wilfully disobedient breach of the order.
Personal circumstances
The magistrate addressed the applicant’s personal circumstances in some detail. Again, his Honour’s summary of the relevant considerations is not challenged.
The applicant is in his mid-forties. He grew up in the United States, and had an unsettled and troubled young life. His parents separated when he was young and he lived with his father during their childhood. He had no contact with his mother until he was in his 20s. He experienced significant difficulties as a child and as an adolescent. His father was frequently absent, and his step-mother was abusive and violent. His schooling was interrupted.
Despite this background, the applicant had a good work history. After studying graphic design at a tertiary level, he worked as a signwriter and then in construction.
As for his relationship history, the applicant came to Australia with his then wife in 2009. She was Australian, and they had married after a short relationship. They separated in 2010. The applicant has a son from that marriage who was 11 years of age at the date of sentencing.
The applicant then had a significant relationship with C. They had two children together, now aged eight and five. Their decade long relationship ultimately faltered when they both became addicted to methyamphetamine. The applicant behaved badly towards the end of this relationship, damaging property and generally conducting himself in an unpleasant and abusive way.
After this relationship ended, the applicant soon became involved in a relationship with the victim of the choking offence. It appeared to the magistrate that the applicant had thrown himself into this relationship without dealing properly with the end of his relationship with C, and before he had overcome his drug problems that had contributed to the demise of that relationship.
The magistrate explained that the offending for which the applicant was to be sentenced occurred while the applicant was still struggling to address his addiction to methylamphetamine. While he had taken some important steps towards abstinence and rehabilitation, he was certainly not in control of his addiction. He was also drinking heavily, which had been the case for many years. Although he had been plagued by alcohol and drug problems for a long time, the magistrate considered it encouraging that the applicant had achieved several long periods of abstinence over the years, suggesting that he was able to cease using drugs and alcohol when he was determined to do so. The applicant was engaged in therapy at the time of his offending, and was planning more formal rehabilitation.
The magistrate accepted that the applicant had used his time in custody as an enforced period of detox from alcohol and drugs. He described the applicant as clear headed, and having a sober appreciation that he must be vigilant and determined if he is to have a future free of drugs and alcohol.
The magistrate referred to the report provided by a psychologist the applicant had consulted, Ms Heinrich. He accepted her diagnosis that the applicant suffered from a borderline personality disorder, and had experienced anxiety and depression throughout his life. The magistrate accepted that the applicant’s disorder meant that he could be impulsive and maladaptive. He accepted that the applicant had been trying hard to better himself and understand his condition while in custody, but that he had not been able to access mental health treatment in custody. In the magistrate’s view, and without treatment, the applicant remained a moderate risk of reoffending.
The magistrate mentioned that there was a risk the applicant would be deported, but described it as a speculative possibility. He nevertheless took into account the applicant’s anxiety and fears of this occurring, and of the likely hardship and distress were this to occur, particularly given that it would result in him being separated from his children.
The applicant had a relatively short offender history. Most of his offending involved driving and public disorder offending, consistent with his long-term alcohol problem. However, he also had prior convictions for breaching an intervention order, involving three breaches committed in April 2020. These were dealt with by way of a small fine, and the magistrate accepted that the subject offending was the applicant’s first foray into serious criminal conduct.
The magistrate referred to the letter the applicant had provided to the Court. His Honour described the letter as demonstrating that the applicant was articulate and serious in intent. He accepted that it indicated that the applicant had gained a measure of insight in the time he had been in custody. The applicant had acknowledged his impulsivity, unrealistic expectations, selfishness and responsibility for his conduct. The magistrate accepted that the applicant was ashamed, embarrassed and genuinely sorry; that he did not wish to repeat his mistakes; and that he wished to be a better person, and to live a stable and productive life.
The sentence imposed
After describing the conduct constituting the choking offence, the magistrate described it as serious and dangerous offending, involving conduct that was violent, unnecessary and disturbing. His Honour noted that choking was a well-known risk factor for even more dangerous violence in relationships.
After summarising the applicant’s personal circumstances, the magistrate also noted the predictably serious effect that the applicant’s conduct had had on the victim. In her victim impact statement, she described the traumatic nature of the experience for her, and the significant and ongoing consequences it had had for her mental well-being. She continues to be anxious and depressed.
The magistrate explained that the primary purpose of sentencing was to protect the community, and that the sentence to be imposed must also serve to protect the victim in this matter. Noting the prevalence of family violence, the magistrate explained the importance of the sentence in sending a clear message to the applicant, and to the community more generally, that family violence cannot be tolerated. While making it clear that he would take into account all of the applicant’s personal circumstances, the magistrate explained that personal and general deterrence had a heightened significance in sentencing for crimes of this nature.

In the context of the intervention order offences, the magistrate noted that while not involving any violent or threatening conduct, it was nevertheless significant that the offences involved clear and flagrant breaches. The magistrate considered that the applicant’s continued inability or disinclination to obey intervention orders led to concerns about the applicant’s ability to obey court ordered conditions in the future.
The magistrate then imposed the sentence summarised at the outset of these reasons. In so doing, the magistrate made the maximum available reductions for the applicant’s pleas of guilty, and gave the applicant credit for the time served in custody. He was not prepared to give the applicant more than nominal credit for his time on home detention bail, given his breaches of that bail agreement. He backdated the commencement of the applicant’s sentence to the date when the applicant was last taken into custody. His Honour made an intervention order in favour of the victim.
The process error
In the course of sentencing submissions, the applicant’s counsel had submitted that the magistrate should suspend the sentence of imprisonment to be imposed upon the applicant. The applicant complains that the magistrate failed to address this issue in his sentencing remarks.
Under s 19(1) of the Sentencing Act 2017 (SA), the sentencing court is required to “state the sentence that it is imposing for the offence … and its reasons for imposing that sentence”. This confirms that a judge’s general obligation to provide reasons extends to the sentencing task. However, the content of that obligation, and hence the extent of the reasons required to be given, must be considered in light of the nature and purpose of sentencing remarks, and the nature of the issues that arise in the particular case.[4]
[4] Henry v The Queen [2022] SASCA 60 at [108] (Doyle JA, Livesey P and David JA agreeing).
The magistrate’s sentencing remarks in this case were otherwise thorough and careful. It was not suggested that his Honour overlooked any relevant factual issue, or indeed that he overlooked the issue of suspension. It was accepted that it could be inferred that the magistrate decided that there was not good reason to suspend the applicant’s sentence, and hence decided to impose an immediate sentence of imprisonment (backdated to the date the applicant was last taken into custody). The applicant’s submission was merely that the magistrate overlooked giving any reasons for declining to suspend the applicant’s sentence of imprisonment, and that this amounted to a process error justifying this Court’s intervention.
In circumstances where the sentencing remarks otherwise canvass all of the matters relevant to the sentencing judge’s decision whether to suspend a sentence of imprisonment, it will not ordinarily be necessary for the judge to say much by way of explanation for the decision reached on that issue. It will generally be sufficient to refer to the significant considerations in this respect, but without any need to repeat the detail of those matters. Indeed, in a case where suspension is not a realistic sentencing option, a statement of this conclusion may suffice.
However, in the present case, the magistrate failed to refer at all to the issue of suspension. Given that it was an issue that was a matter of contest during sentencing submissions, and that the imposition of an immediate sentence of imprisonment was not an inevitability, the respondent was right to concede that the magistrate fell into error.[5]
[5] R v Robins [2016] SASCFC 55 at [24]-[25] (Kelly J, Stanley and Nicholson JJ agreeing).
Having identified this error, there is no need to address the applicant’s alternative contention of manifest excess by reason of the magistrate’s decision not to suspend his sentence of imprisonment. That said, it is implicit in what follows in these reasons that we would reject this contention.
Disposition of the appeal
As we have concluded that the magistrate’s decision was infected by process error, it is appropriate to exercise the sentencing discretion afresh. However, if, having considered the matter afresh, this Court concludes that it would not have imposed any lesser sentence, then it may nevertheless decline to intervene and proceed to dismiss the appeal. [6]
[6] Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell and Keane JJ); R v Horstmann [2010] SASC 103 at [38] (Kourakis J).
The applicant’s offending was undoubtedly serious. His offending in January 2021 involved not only protracted violence against his domestic partner (the s 20A(1) choking offence), but also violence against a police officer who was rendering the applicant and the victim assistance (the s 20AA(3) assault emergency worker offence).
The choking offence is a relatively new offence. In her second reading speech on 24 October 2018, the Attorney-General summarised the rationale for the introduction of this offence:[7]
Clause 6 inserts a new stand-alone offence of choking, suffocation and strangulation in a domestic setting. The new offence has a maximum penalty of seven years’ imprisonment and will apply if a person who is or has been in a relationship with another person, chokes, suffocates or strangles that person without their consent. There is no requirement that harm be intended or caused. Rather it is the conscious and voluntary act of choking, suffocation or strangulation that proves the offence.
The creation of a new offence, rather than simply relying on existing offences such as causing harm or serious harm, endangering life or attempted murder, serves a number of purposes: firstly, it increases the penalty for this behaviour where no harm is caused; secondly, it recognises the inherent dangerousness of this conduct in a domestic setting and its indication of escalation to domestic homicide; thirdly, it educates police and the community; and finally, it assists in the assessment of risk to the victim.
[7] South Australia, Hansard, House of Assembly, 24 October 2018, 3131 (Vickie Chapman, Attorney-General).
The circumstances of the choking offence in the present case were particularly serious, given that the offence occurred during an episode of domestic violence that extended over several hours, and resulted in a loss of consciousness and bruising to the victim. As the magistrate observed, it was particularly concerning that the offending occurred not only while the victim’s teenage son was in the same house, but also after the son had interrupted the applicant’s violence. It is also significant that the offending occurred in circumstances where the applicant was already subject to an intervention order, albeit in relation to a different former domestic partner.
In June to August 2021, following a period in custody (on remand for the unlawful choking offence), and whilst subject to home detention bail conditions, the applicant breached conditions of two separate intervention orders by contacting the protected persons in those orders. While the contact was not overtly violent or threatening, it was contrary to the express wishes of the protected persons and explicit orders of the court. As the magistrate said, the breaches involved flagrant breaches of the intervention orders.
As outlined earlier, the applicant was not a first-time offender. Indeed, his prior offending included three breaches of an intervention order in April 2020. The applicant was only sentenced for this conduct on 14 January 2021 (the day after his choking and assault emergency worker offences), but this was nevertheless prior to the commission of his subsequent breach of intervention order offences in June to August 2021.
Under s 3 of the Sentencing Act, the primary consideration in sentencing a person for an offence is protection of the safety of the community. Section 4(1) sets out the secondary purposes:
4—Secondary sentencing purposes
(1)     The secondary purposes for sentencing a defendant for an offence are as follows:
(a)     to ensure that the defendant—
(i)    is punished for the offending behaviour; and
(ii)     is held accountable to the community for the offending behaviour;
(b)     to publicly denounce the offending behaviour;
(c)     to publicly recognise the harm done to the community and to any victim of the offending behaviour;
(d)     to deter the defendant and others in the community from committing offences;
(da) to deter the defendant and others in the community from harming or assaulting prescribed emergency workers (within the meaning of section 20AA of the Criminal Law Consolidation Act 1935) acting in the course of official duties;
(e)     to promote the rehabilitation of the defendant.
As the respondent contends, paragraphs (c), (d) and (da) are of particular significance in the present case. We adopt the magistrate’s observations, summarised earlier, as to the significance of these matters to the sentence to be imposed upon the applicant.
While not the focus of his counsel’s submissions, the applicant invited this Court to impose a lesser head sentence and non-parole period than were imposed by the magistrate. However, in light of the matters already canvassed in these reasons, we are satisfied that the head sentence and non-parole period were appropriate. We would not have imposed any lesser head sentence or non-parole period.
While they may weigh differently, all of the matters relevant to the imposition of the head sentence and non-parole period remain relevant in determining whether there was good reason to suspend the applicant’s sentence of imprisonment under s 96(1) of the Sentencing Act.
In support of the contended existence of good reason to suspend, the applicant’s counsel relied upon the following considerations: the applicant’s limited antecedents despite being in his mid-forties; the applicant had not previously received a term of imprisonment; by the time of sentence, the applicant had spent a significant period of time in custody for the present offending; and the applicant had shown insight and remorse, and an intention to address his substance abuse issues as well as rehabilitate himself more generally. As to the last of these matters, the applicant relied upon not only the letter that he provided to the magistrate, but also the courses the applicant had undertaken, and the general attitude he had demonstrated, while in custody. He also relied upon the further courses, as well as psychological and counselling services, that would be available to him in the community and that would assist his rehabilitation.
We accept that these are factors that weigh in favour of suspension. However, in our view they are comfortably outweighed by the objective seriousness of the applicant’s offending, particularly the choking offence. The applicant’s offending required a significant measure of personal and general deterrence. When considered in combination with the applicant’s unwillingness or inability to comply with court orders in the past, we do not think there was good reason to suspend the applicant’s sentence.
For the reasons given, we would grant permission to appeal, but dismiss the appeal.