Djerke v Power
[2015] ACTSC 235
•30 July 2015; 7 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Djerke v Power |
Citation: | [2015] ACTSC 235 |
Hearing Date(s): | 30 July 2015 |
DecisionDate: | 30 July 2015; 7 August 2015 |
Before: | Burns J |
Decision: | The appeal against conviction is dismissed. The appeal against sentence is upheld and the sentence of the Magistrates Court is set aside. A sentence of 12 months’ imprisonment with an 8 month non-parole period is imposed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – assault occasioning actual bodily harm – possessing an offensive weapon with intent. APPEAL – Appeals From and Control Over Magistrates – appeal against convictions and sentence – inconsistency in witness’ oral evidence and statement to police – appeal against convictions dismissed – appeal against sentence upheld – sentence manifestly excessive - offender re-sentenced. |
Parties: | Ivan Stephen Djerke (Appellant) David Jeffery Power (Respondent) |
Representation: | Counsel Ms M Ellis (Appellant) Mr G Mansfield (Respondent) |
| Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 17 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 20 January 2015 Case Title: Power v Djerke Court File Number(s): CC14/6556; CC14/6557 |
BURNS J:
Background
These proceedings are an appeal from decisions of a magistrate. On 20 January 2015, the appellant was found guilty of offences of assault occasioning actual bodily harm and possessing an offensive weapon with intent. Formal convictions and sentences were imposed on 2 March this year. The appellant was sentenced to 18 months’ imprisonment with a non-parole period of 12 months with respect to the offence of assault occasioning actual bodily harm, and four months’ imprisonment with respect to the offence of possessing an offensive weapon with intent, which was to be served concurrently with the sentence imposed for the offence of assault occasioning actual bodily harm.
The present appeal is with respect to conviction for both offences and with respect to sentence for the offence of assault occasioning actual bodily harm if the conviction appeal is unsuccessful.
Appeal against convictions
Counsel appearing for the appellant, Ms Ellis, has based the appeal with respect to the convictions on the proposition that the Magistrate should not have accepted the evidence of one of the witnesses, Ms McCooke. Ms Ellis has submitted that the evidence given by Ms McCooke to the Magistrate differed significantly from a statement that she made to police at about the time that these offences were alleged to have occurred.
It is clear that there are apparent differences between the evidence given by Ms McCooke to the Magistrate and the statement that she made to the police at about the time of the alleged offences. She told police that, at the time of the alleged offences, Mr Licciardello, who was the complainant, was in his flat and left the flat to see the appellant. She was in Mr Licciardello’s flat at that time. In contrast, she told the Magistrate that Mr Licciardello was at the shops and was coming back from the shops prior to the alleged offences taking place, a version of events which more closely aligned with the version of events given by Mr Licciardello in terms of the events leading up to the alleged offences.
In neither version of events did Ms McCooke say that she had seen any altercation between the appellant and Mr Licciardello. As an aside, I note that it would be somewhat odd if she was attempting to tailor her evidence to support Mr Licciardello, that she would not have gone so far as to say that she had seen the incident between them. However, it is clear that the Magistrate took into account the discrepancies between the evidence given by Ms McCooke at the hearing and the statement that she made to the police to the extent that her Honour found Ms McCooke’s evidence corroborated the version of events given by Mr Licciardello. Her Honour said, at page 34 of the transcript:
In terms of the evidence before me, there is the complaint of Mr Licciardello which, if accepted, is capable of satisfying the elements of each of the offences before me. In terms of the approach to the evidence, regarding that of Mr Licciardello, if it was simply his word against that of Mr Djerke, I would be unable to be satisfied beyond reasonable doubt as to the true version of events. However, I have, as well as Mr Licciardello’s evidence, the corroboration which was given by Ms McCooke as to the words that she heard whilst she was inside the flat with the door closed.
I interpolate at this point to note that it was apparently not the subject of any complaint that the evidence given by Ms McCooke as to the words that she heard whilst she was in the flat with the door closed was consistent in both her evidence to the Magistrate and in her statement to the police.
However, the Magistrate went on:
In addition to that I have, significantly, the corroboration of injury observed by Police Constable Power and by Police Constable Schultz on their attendance very shortly after the incident is said to have occurred. Although not a major injury, it was a significant injury. It was not an injury which could have occurred in the process of shoving, which was described by Mr Djerke.
It was the contention of the appellant before the Magistrate that he had attended at the complainant’s unit in order to undertake a purchase. There had then been an argument in which the complainant had attempted to take money forcibly from the appellant’s wallet. The appellant gave evidence that he resisted. There was some struggle in which he pushed the complainant to his upper chest. In my opinion, the Magistrate was quite entitled to find that the injury, which was later observed by police, could not have occurred in the process of shoving the complainant as described by the appellant. That was a very significant aspect of the evidence which corroborated the version of events given by the complainant.
It is trite that a tribunal of fact is entitled to take into account questions of credibility in such a way that they may accept all or some of the evidence of a witness. The tribunal may reject all of the evidence of a particular witness or alternatively the tribunal of fact may accept some evidence of a particular witness and reject other parts of the evidence of the same witness. It appears that that is precisely what has happened in this case.
These proceedings are by way of rehearing and, as such, the appellant must demonstrate some error on the part of the Magistrate before this Court may intervene. That may be an error of law or an error of fact. I am not satisfied that the Magistrate made an error of fact in the way in which she approached the evidence of Ms McCooke. I am satisfied that there was ample evidence before the Magistrate to enable her to make the finding that the offences were proved. For that reason, the appeals against conviction will be dismissed.
Appeal against sentence
With respect to the appeal against sentence for the offence of assault occasioning actual bodily harm, I find that the sentence imposed by the Magistrate of 18 months’ imprisonment with a 12 month non-parole period was manifestly excessive, and I uphold the appeal.
Orders
The appeal against the convictions is dismissed.
The appeal against the sentence for the offence of assault occasioning actual bodily harm is upheld.
The sentence which was imposed in the Magistrates Court is set aside. In substitution, you are sentenced to a term of 12 months’ imprisonment with an 8 month non-parole period.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 18 August 2015 |
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