Baker v the Police No. Scciv-03-1793

BAKER v THE POLICE
[2004] SASC 49
Magistrates Appeals: Criminal

BESANKO J: This is an appeal against conviction and an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991. The appellant was the defendant before a Magistrate and was found guilty of assault occasioning actual bodily harm contrary to s 40 Criminal Law Consolidation Act 1935. I will refer to the appellant as the defendant. He was sentenced to a term of imprisonment of ten weeks. The Magistrate refused to suspend the sentence.
The Appeal against Conviction
The appellant is a 45 year old man. He had a relationship with a Ms Robyn Burford. It is not clear when that relationship ended, although it seems that it had ended before the incident on 9^th September 2002. Ms Burford had a son, Christopher, who is 14 years of age. They lived at 25 Abbott Street, Klemzig, South Australia. On 9^th September 2002 Christopher went to school. After school he went to his grandparents’ house. He did not tell his mother that that was where he had gone, and when he did not return home at the usual time his mother became concerned about his welfare. At about 6:30PM to 6:45PM she went to Mr Kunz’s unit at Unit 2, 18 Abbott Street, Klemzig, South Australia. The defendant was at Mr Kunz’s unit. He had been there for some hours socialising with Mr Kunz. Christopher arrived at Mr Kunz’s unit and was spoken to by his mother. Christopher used bad language in speaking to the defendant. The account of events given to this point is common ground.
The prosecution case before the Magistrate was that the defendant then assaulted Christopher by punching him, and that after Christopher had fallen to the ground, the defendant kicked Christopher. The defence case before the Magistrate was that the defendant did not assault Christopher, but rather that he was involved in a confrontation during which he fell to the ground on top of Ms Burford. Christopher was underneath Ms Burford at the time she fell to the ground. There is no doubt that for one reason or another, Christopher suffered quite significant facial injuries as a result of the incident and was taken to hospital later that evening.
The Magistrate’s Findings
The Magistrate found that the defendant assaulted Christopher by punching him in the face on or near the nose, and that he kicked Christopher more than once while he was on the ground. The assault occurred at or near the ramp at the entrance to Mr Kunz’s unit. Christopher lost blood as a result of the injuries he sustained, and blood was found at or near the ramp. Christopher’s right knee was hurt in the fall and Christopher was sore in other parts of his body. The Magistrate found that Christopher’s mother tried to obstruct the defendant’s attempts to strike Christopher, but in the end she lost her balance and both she and Christopher fell to the ground. Christopher suffered further injuries as a result of falling to the ground. He also suffered a loss of skin tissue on his face as a result of contact from the defendant’s fist or shoe or shoes. The Magistrate found that a neighbour who saw Christopher shortly after the incident (Mr Hall), also reported that Christopher had a swollen right cheek. The Magistrate found that Christopher also sustained bruising to the left side of his face. The defendant had no lawful authority to assault Christopher.
The Magistrate relied on a number of items of evidence in order to reach his conclusions.
First, he relied on the evidence of Christopher, who he said was a good witness and frank, honest and direct in his answers. The Magistrate said that although Christopher may not have been entirely correct in some of his answers,
“In the central issues about the assault I find that he was accurately, honestly and correctly giving truthful and reliable evidence and I so find beyond reasonable doubt.”
Earlier, the Magistrate referred to some minor discrepancies in Christopher’s evidence which he said was to be expected given his age and the traumatic experience of the assault.
Secondly, Mr Hall, a neighbour who saw Christopher and the defendant shortly after the incident, gave evidence which the Magistrate accepted, that Christopher was bleeding from the area of the nose and other facial injuries and that when he spoke to the defendant, the defendant said “I just gave him a push.”
Thirdly, Mr Parrish, who is Christopher’s grandfather, gave evidence which the Magistrate accepted of a telephone conversation he had with the defendant on the night of the incident during which the defendant said that he had given Christopher “a back hander”.
Fourthly, Ms Burford, gave evidence that the defendant assaulted Christopher. The Magistrate found that Ms Burford was frank, direct and helpful in all her evidence and was a truthful and accurate witness. The Magistrate found that Ms Burford at no time assaulted the defendant, and that at all times she was trying to protect Christopher. She saw the defendant hit Christopher in the face with a closed fist. She did not see the defendant kick Christopher, but the Magistrate said that she did not see the kicking from her position and that she was very upset at the time. The Magistrate found that at some time during or after the incident, Ms Burford suffered the symptoms of an epileptic type seizure.
Fifthly, the Magistrate relied on the evidence of Dr Woodard-Knight. Dr Woodard-Knight is a senior staff specialist in the Paediatric Emergency Department and Child Protection Services area of the Women’s and Children’s Hospital. She saw Christopher shortly after the incident, and she gave evidence of the injuries she observed. She was well qualified to give such evidence and the Magistrate accepted her evidence. Christopher suffered abrasions to his forehead, swelling and redness on both cheeks but more so on the right, swelling on the bridge of his nose and a small loss of skin. In addition, he was bleeding from his right nostril, he had an abrasion on the edge of his right nostril, a swollen upper lip and some bruising on the inside of the upper lip. There were no fractures. Dr Woodard-Knight said that the injuries were consistent with Christopher being hit about the face by fists and feet, and they were consistent with blows from hard, blunt objects. The Magistrate took into account Dr Woodard-Knight’s evidence that a number of the facial injuries could have been caused as and when Christopher hit the ground. However, the Magistrate also noted Dr Woodard-Knight’s evidence that to have sustained the facial injuries he suffered, Christopher would have had to have had three falls against three different surfaces.
The Magistrate rejected the defendant’s evidence. He said that although Christopher had used bad language in speaking to the defendant, that did not justify the attack. The Magistrate found that the defendant had manufactured evidence about the incident and had not told the entire truth.
Issues on Appeal
The defendant submitted that there were a number of inconsistencies in the evidence which should have led the Magistrate to reject the account of the incident given by Christopher. First, he submitted that the injuries sustained by Christopher occurred as a result of his fall onto the concrete and of his mother falling on top of him. It is true that some of the injuries could have occurred as a result of Christopher’s fall, but the Magistrate was required to consider, and did consider, all of the evidence including, but not limited to, the injuries sustained by Christopher. Secondly, the defendant submitted that the Magistrate incorrectly found that the defendant had kicked Christopher when he was on the ground. Ms Burford did not see the defendant kick Christopher. That was a matter to be taken into account and the Magistrate did that and found that Ms Burford did not see the kicking from her position and that she was very upset at the time. He was entitled to make those findings. Thirdly, the appellant referred to a number of inconsistencies in Christopher’s account of the incident, and in particular, the following:
1.Christopher gave three different accounts of how he hurt his right knee, ie., from the fall, from a punch with a fist, and from being kicked by the defendant.
It is true that Christopher did give different accounts of how he hurt his right knee.
2.Christopher gave different accounts of when he became unconscious after the incident, ie., immediately after his fall to the ground, and later at Mr Hall’s house.
Christopher’s evidence might be construed in a way that supports this assertion, although the evidence is by no means clear.
3.Christopher said he was being kicked by the defendant while he was on the ground, whereas Ms Burford said that the defendant was punching Christopher when he was on the ground.
On my reading of Ms Burford’s evidence, it might be said that that is the effect of her evidence, although the evidence is not entirely clear.
4.Christopher told the police that the defendant had his hand around Ms Burford’s throat and was trying to choke her, whereas in his evidence he said that he did not see that happen, and could not remember telling the police that it happened.
Christopher’s statement to the police was not tendered, but I am prepared to assume for the purposes of the argument that he did tell the police that the defendant had his hand on Ms Burford’s throat and was trying to choke her.
5.Christopher said that he was wearing glasses at the time of the incident and that they were knocked off during the incident, whereas Ms Burford said that Christopher’s glasses were at school.
This assertion appears to be correct.
6.The defendant submitted that Christopher told the police that he suffered an injury to his kidney region, and yet when the police examined Christopher there was no evidence to support such an injury. As I understand it, this statement was not put to Christopher and it was not tendered. In those circumstances, the defendant’s submission should be disregarded.
I have read the evidence and carefully considered the matters raised by the defendant. I do not think that individually or collectively they required the Magistrate to reject Christopher’s evidence. They were matters that needed to be considered and assessed remembering always that the prosecution had to prove its case beyond reasonable doubt. The Magistrate was aware of some minor discrepancies in Christopher’s evidence and he said that that was to be expected given Christopher’s age and the traumatic experience of the assault. The Magistrate was entitled to take that approach. He had the advantage of seeing and hearing Christopher and the other witnesses. Furthermore, the Magistrate did not overlook the fact that the onus remained on the prosecution to prove its case against the defendant beyond reasonable doubt, and there is no reason to think that he did not apply that principle.
The prosecution case against the defendant was a strong one having regard to the evidence of Christopher and Ms Burford and the statements the defendant made to Mr Parish and Mr Hall.
The defendant also submitted that prosecuting counsel became very angry with him during cross-examination of the defendant, and that the Magistrate erred in not restraining him.
There is no evidence to support this assertion or, even if it is correct, the assertion that the Magistrate erred in his conduct of the trial.
The appeal against conviction should be dismissed.
The Appeal against Sentence
The defendant was sentenced to a term of ten weeks imprisonment. The maximum penalty for the offence of assault occasioning actual bodily harm is five years, and the Magistrate had the power to impose a sentence of imprisonment of up to two years.
The Magistrate’s Remarks on Sentence
The Magistrate took into account the following matters:
1.The offence committed by the defendant involved a very serious assault on a very young person. Regard must be had to the victim impact statement. The victim presented as a positive young boy notwithstanding the grief that was caused to him by the defendant’s unlawful action. As far as the victim is concerned, there is still some residual harm, but that is more of an emotional nature than any physical disfigurement.
2. The defendant is to be given no credit for a plea of guilty.
3.The matters set out in the pre-sentence report and the report of the psychologist, Dr Allen Fugler, (which I will summarise in due course) must be taken into account.
4.The defendant, through his counsel, expressed remorse for “this kind of outburst” by the defendant.
5.The defendant is a blood donor and has participated in the Australian Bone Marrow Donor Registry.
The Magistrate said that he did not need to be severe with the defendant, but that he must visit upon him an immediate period of imprisonment for ten weeks. The Magistrate considered the question of whether he should suspend the sentence of imprisonment. The Magistrate said that there must always be room for suspension even for a person of the defendant’s age. The Magistrate referred to the defendant’s previous involvement with the court system and his family situation as described in Dr Fugler’s report. He had regard to Dr Fugler’s report and the pre-sentence report. The Magistrate said that he could not overlook the fact that the defendant was in a position to act with restraint for what he described in his reasons as some youthful exuberance on the part of Christopher, and yet he resorted to violence. He said:
“What I am focusing upon here is the personal deterrence to you to desist from resorting to violence, particularly for young people such as this young victim and I reject the application to suspend this period of imprisonment.”
Issues on Appeal
The thrust of the defendant’s submissions in relation to sentence were directed towards the Magistrate’s refusal to suspend the term of imprisonment. In my opinion, the sentence of ten weeks imprisonment was appropriate in all the circumstances, particularly having regard to the nature of the assault.
I would not interfere with the Magistrate’s refusal to suspend the sentence.
I consider first the circumstances surrounding the offence. As I have said, at the time of the assault Christopher was a young boy. The defendant was 44 years old. The fact that Christopher used bad language in speaking to the defendant is not in any way a mitigating circumstance. The assault was vicious, involving the use of fists, and kicking Christopher while he was on the ground. Christopher went to hospital as a result of the assault, and it is clear from his victim impact statement that the experience was a traumatic one for him.
I turn now to consider the personal circumstances of the defendant. He is not a young man, and he has a history of prior offending including offending as a child. His prior offending includes traffic offences, and offences of a more serious nature including assault, disorderly behaviour and forge or utter a deed. It appears that the defendant did not offend between 1991 and early 2002. Although the defendant expresses remorse for his outbursts of bad temper, he has not expressed remorse for this offence which he denies committing. He has said that he is sorry Christopher was hurt in the incident. There was no plea of guilty for which the defendant could be given credit.
Dr Fugler’s report and the pre-sentence report provide details of the defendant’s history and circumstances in life. The defendant has low self esteem, a marked tendency towards anxiety reactions, reduced social skills and emotional immaturity. He is not suffering from a psychiatric disorder. He had an unhappy relationship with his mother, and he had limited schooling. He was often teased and he reacted aggressively. The defendant was in employment for a number of years, although he has not worked for the last ten years. He suffered a serious injury to his groin some years ago. The defendant has a history of reacting aggressively to being teased or abused by others. He has attempted to commit suicide on one occasion. Testing has revealed that the defendant is operating at the upper end of the borderline range of functioning (IQ 70- 79). Dr Fugler said that the defendant has a history of compulsive and aggressive behaviour, and he is unlikely to be operating at a much higher level of emotional maturity than his victim, Christopher.
Dr Fugler says in his report:
“Mr Baker is likely to have a hard time of it if incarcerated. His personality and low level of psychological functioning will make him an easy target for others with less scrupulous behaviour and an absence of understanding. He is not incapable of learning and may well benefit from involvement in courses in anger management and cognitive skills conducted by community corrections. The development of alternative skills to those of aggression in the face of threat could go a long way toward increasing the chances of relapse prevention and improving his prognosis.”
In the pre-sentence report it is noted that the defendant has complied with bonds or bail orders in the past, that he recognises that he has a problem with anger management and it is said that he will probably benefit from counselling and/or attendance at an appropriate program. The defendant has previously attended an anger management program, although for a short period.
It is in the defendant’s favour that he is a blood donor and has participated in the Australian Bone Marrow Donor Registry. I have also taken into account the further material tendered on appeal, namely, the letter from Pastor Craig of Church for You and the document from the Red Cross Blood Service.
There are a number of matters in favour of suspending the sentence. These include the defendant’s personality traits, the fact that he did not break the law between 1991 and early 2002, the fact that he is a blood donor, the fact that he appears to recognise that he has a problem with anger management and that he may benefit from participation in an anger management program and the fact that he will have a hard time of it if incarcerated. However, in the end I do not think the Magistrate erred in refusing to suspend the sentence. The assault was a vicious one. The defendant attacked a young boy and there are no mitigating circumstances as far as the assault is concerned. The defendant punched the victim and kicked him while he was on the ground. It is apparent that more serious injuries could have resulted than those which did. The defendant is not a young man, nor can it be said that this is the first occasion upon which he has responded to a challenging situation by physical aggression. I do not think that there is sufficient reason to interfere with the Magistrate’s decision not to suspend the sentence.
I would dismiss the appeal against sentence.
Conclusions
The appeals against conviction and sentence are dismissed. I will hear counsel as to any other orders which I should make.

[2004] SASC 49

24 February 2004