Donald Ole Jensen v R No. SCCRM 93/456 Judgment No. 4452 Number of Pages 5 Criminal Law and Procedure Sentence

[1994] SASC 4452

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - sentence - assault occasioning actual bodily harm - punch delivered in anger during netball match - permanent damage to teeth - relevance of assault occurring during sporting contest considered - sentence of 8 months reduced on appeal to 4 months - suspension justified by good record and affirmed. Watherston v Woolven unreported Johnston J, Supreme Court of South Australia 21/10/87, considered.

HRNG ADELAIDE, 21 February 1994 #DATE 31:3:1994

Counsel for appellant:     Mr A J Redford

Solicitors for appellant:    Scales and Partners

Counsel for respondent:     Mr P J L Rofe QC

Solicitors for respondent: Director Of Public Prosecutions
   (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ The appellant was found guilty by verdict of a jury of the crime of assault occasioning actual bodily harm. The appellant struck an opponent with his fist during the course of a netball match. The learned District Court Judge imposed a sentence of imprisonment for eight months but suspended that sentence upon the appellant entering into a bond in the sum of $300 to be of good behaviour for a period of two years. The appellant has appealed to this Court against the severity of that sentence.

2. The appellant is a twenty-five year old man and has no previous convictions. He has a good work record although more recently has suffered the misfortune of unemployment due to no fault of his. In February 1992 the appellant played for a team known as "Modbury Chiefs". The match was against a team known as "Modbury Hawks". The appellant was playing the centre position and his immediate opponent was the victim of the assault.

3. Netball is a non-contact sport but it appears from the evidence that in men's netball some degree of physical contact is tolerated. The evidence shows there was some physical contact between the appellant and the victim during the course of the match. At the time of the assault, the ball was out of play. There was some jostling between the appellant and the victim, presumably in taking advantageous position in preparation for the return of the ball into play. Without warning the appellant punched the victim in the face with his clenched fist. The victim was unprepared for this attack and was not protecting his face. As a result he suffered the full force of the blow and sustained considerable injury.

4. The victim's two left central upper teeth were pushed back and had to be straightened. The teeth were wired and a dental splint inserted. There were three stitches to his gum. There was little vitality in the teeth and root canal treatment was necessary. Internal aspects of the teeth are dead. The prognosis is that one of the teeth will be lost and have to be replaced with a false tooth. There is a risk that the same will occur to the other tooth.

5. Mr Redford appeared for the appellant before us and argued that a sentence of imprisonment was not justified, even though suspended, and that appropriate penalty was a fine. He did not suggest that there should be no conviction. He contended that an assault committed in the course of a competitive sport should be regarded less seriously than a similar assault committed under different circumstances. He cited the case of Watherston v Woolven judgment of Johnston J delivered on 21 October 1987.

6. The case cited is not, in my opinion, authority for the proposition that an assault committed in the course of a competitive sporting context is to be treated less seriously than a similar assault committed in other circumstances. The seriousness of an assault depends upon all the circumstances including the context in which it occurred. In Watherston v Woolven Johnston J made the point that the assault in that case had occurred in the vigorous context of an Australian Rules football match and that it was an impulsive act committed at a time when the offender as well as other players were "'revved up', excited, anxious, performing at a high level or attempting to do so." That was obviously an important factor in assessing the seriousness of the assault in the circumstances of that case. Whether an assault during the course of a sporting contest can be treated less seriously than a similar assault committed in other circumstances, must depend upon all the circumstances of the case. A punch delivered in the heat of an incident involving vigour and aggression may be treated less seriously. A premeditated behind the play assault committed in cold blood for the purpose of taking an opposition player out of the game, may be every bit as serious as the same degree of violence used in a non-sporting context.

7. The present assault was committed during the course of a netball match. Unlike Australian Rules football, netball is a non-contact sport. It is true that the evidence discloses there had been a degree of physical contact and that at the relevant time the appellant and the victim were jostling to make position. Nevertheless the type of physical aggression used by the appellant would be totally unexpected and obviously was totally unexpected by the victim. The learned sentencing judge accepted that it was a punch delivered in anger rather than in cold blood, but it was nevertheless a severe punch delivered to an unsuspecting opponent who was doubtless concentrating on making position to take the ball when it came back into play. It was not in the nature of a mild punch or push or a reflex action backhander. It was a deliberately delivered heavy punch to the mouth. It must have been intended to cause injury.

8. I do not think that a fine would adequately reflect the seriousness of this conduct. It called for a sentence of imprisonment. In all the circumstances, however, I think that a term of eight months was excessive. I would allow the appeal for the purpose of reducing the sentence of imprisonment from eight months to four months. In taking this view I am mindful of the fact that the appellant has suffered a suspension as a player for a period of five years.

9. Suspension of a sentence in these circumstances was by no means inevitable. Nevertheless the appellant's previous good character justified the suspension in this case.

10. In my opinion the appeal should be allowed, the sentence of imprisonment should be reduced to imprisonment for four months and the sentence, including the suspension, should otherwise be affirmed.

JUDGE2 BOLLEN J The facts have been stated in the reasons of the Chief Justice.

2. I recognise that a sentence of imprisonment should be, in the main, a last resort. Section 11(1) of the Criminal Law (Sentencing) Act 1988 demands that imprisonment be not imposed unless one at least of the four placita in the subsection apply. I think that the only one which could apply here is (d). That is that imprisonment must not be imposed unless, in the opinion of the Court "any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence".

3. The learned trial Judge must have thought that either the gravity or the circumstances of the offence or both made any sentence other than imprisonment inappropriate. He said:-
    "Nevertheless, judges of this court have a duty to deter
    others and people must learn that this sort of king-hitting
    on a sports field is not to be tolerated."

4. He said that after reciting matters which went in mitigation of penalty. Those matters well entitled the learned trial Judge to say:-
    "Having regard to the fact that you're a first offender and
    to the personal matters which I have adverted to, I will be
    as lenient as I can with you, because I think your
    rehabilitation is assured. This is the first time ever and
    I'm sure that it won't happen again."

5. I have paid attention to the cases mentioned and the submissions offered by Mr Redford. But I cannot say that the learned trial Judge was in error in ordering imprisonment. I agree that, at least in general, assault on the sporting field, rink or court should be treated differently than are unprovoked assaults committed elsewhere. I say "in general" because I am thinking of the bodily contact and provocation which can and does occur on the sporting field, rink or court. An assault can be committed in hot blood by people who are usually of very mild disposition. I am not thinking of the fight between full forward and full back before the ball had been bounced in a football final some years ago. But in the course of play contact is made one with the other, tempers flare and blows are sometimes struck. The striking of a blow with the fist in these circumstances is a less serious type of assault than are many other types. But it is serious enough. Players must control their tempers. Sometimes assaults in the course of a game can be dealt with adequately by the relevant domestic tribunal. Sometimes not. When the blow or blows, kick or kicks, travel far outside the type of conduct which I have described it is right that the criminal law should step in. That is particularly so when the blow or other act is vicious. Even more so if it is vicious and happens when the ball is not in play. That is what happened here. It was a vicious blow struck when the ball was not in play. It caused real injury. The courts must do all they can to try to deter others from offending in like manner. I think that any penalty other than imprisonment would be inappropriate. I think that the gravity of the assault and the circumstance in which it happened demand an order for imprisonment. It is a sad thing and a strong step to order a term of imprisonment for a young man with no convictions and who is a man of good character. But here it is necessary. I think that the term of imprisonment ordered is quite severe but not manifestly excessive.

6. I think, too, that the learned trial Judge was justified in suspending the sentence.

7. I would dismiss the appeal.

JUDGE3 MULLIGHAN J I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and with the order which he proposes.