Fihelly v Bluett
[2023] ACTSC 393
•19 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Fihelly v Bluett |
Citation: | [2023] ACTSC 393 |
Hearing Date: | 15 November 2023 |
Decision Date: | 19 December 2023 |
Before: | McWilliam J |
Decision: | (1) The appeal is allowed in part. (2) The order made by the Magistrates Court on 25 January 2023 in relation to CAN2022/4609 is set aside. (3) In lieu thereof, a non-conviction order is made pursuant to s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). (4) In accordance with s 13 of the Sentencing Act, the appellant is required to give an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months commencing on 19 December 2023 and concluding on 18 December 2024, with core conditions applicable only. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against conviction and sentence – whether to admit new evidence – assault of a frontline community service provider – appeal allowed – resentencing – non-conviction order |
Legislation Cited: | Crimes Act 1900 (ACT) s 26A Criminal Code 2002 (ACT) ss 7, 18, 20 Crimes (Sentencing Act) 2005 (ACT) ss 13, 17, 33(1) Magistrates Court Act 1930 (ACT) ss 207, 208, 214, 218 Criminal Code Act 1995 (Cth) s 5.4 |
Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 Burnett v Gowing [2003] ACTSC 89 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 DPP v Chen [2023] ACTSC 154 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 Fox v Percy [2003] HCA 22; 214 CLR 118 Greenwood v Barlee [2018] ACTSC 46 Hann v Director of Public Prosecutions (Cth) [2004] SASC 86; 88 SASR 99 Ji v Stone [2023] ACTSC 54 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Kinnane v Beattie [2022] ACTSC 265; 372 FLR 358 Kristiansen v Yeats [2022] ACTSC 351 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 Mahanay v Phelan [2023] ACTSC 162 McElholum v Hughes [2015] ACTSC 78 Parker v The Queen (1963) 111 CLR 610 Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 Preston v Carnall [2015] ACTSC 325; 300 FLR 302 Proud v Sladic [2014] ACTCA 26 R v AB [2022] NSWCCA 3 R v Burstow; R v Ireland [1997] UKHL 34; [1998] 1 AC 147 R v Calis [2013] QCA 165 R v FI [2017] ACTSC 190 R v Garland [2020] ACTSC 242 R v Ingrassia (1997) 41 NSWLR 447 R v Ramalingam [2011] ACTSC 86 R v RH [2011] ACTSC 3 R v Roux [2015] ACTSC 307 Ramalingam v McCue [2019] ACTSC 114 SBT v Wright [2021] ACTSC 322; 17 ACTLR 137 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Veenv The Queen (No 2) (1988) 164 CLR 465 Vuolo v Fall [2023] ACTCA 33 Walden v Hensler (1987) 163 CLR 561 Ward v Richardson [2021] ACTSC 130 |
Parties: | Daniel Ian Fihelly ( Appellant) Grant Matthew Bluett (Respondent/Informant) |
Representation: | Counsel Self-Represented ( Appellant) K McCann and E Roff ( Respondent) |
| Solicitors Self-Represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 10 of 2023 |
Decision Under Appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Theakston Date of Decision: 25 January 2023 Case Title: Bluett v Fihelly Court File Number: AM 1035 of 2022 |
McWILLIAM J:
1․On 25 January 2023, Daniel Ian Fihelly (appellant) was found guilty in the Magistrates Court of assaulting a frontline community service provider (respondent), contrary to s 26A of the Crimes Act 1900 (ACT) (Crimes Act). The sentencing magistrate recorded a conviction and imposed a $600 fine.
2․The facts that were the subject of the charge concerned an incident on 13 May 2022. As part of a protest, the appellant was drumming on a small snare drum, attached to him by one strap, in a public place (the National Rock Garden in the ACT).
3․The respondent attempted to stop the appellant from drumming by placing his hands on the drumsticks as the appellant was beating the drum. The respondent let go of the drumsticks and the appellant moved his left hand sharply away (while still holding the drumstick) from the drum, towards the police officer’s face. Either or both of the appellant’s hand and the tip of the drumstick which was protruding from behind his fist connected with the police officer’s glasses, hat and cheek. The hat fell off his head and the glasses were dislodged from the officer’s face. This led to the appellant’s immediate arrest and the commencement of the proceeding in the court below.
4․It is not disputed that the respondent, being a police officer, was a frontline community service provider exercising a function given to him as a frontline community service provider.
5․The was also no dispute that the touching of the police officer occurred, as it was captured by video footage. The issue was whether the contact with the respondent was intentional, or in the alternative, reckless.
6․The magistrate in the court below found that the conduct was intentional, which led to the finding that the appellant was guilty of the offence. The appellant has appealed both the guilty finding which led to a conviction, and the sentence imposed. In doing so, he sought to rely upon both new and fresh evidence.
Ground of Appeal
7․The appellant was self-represented. Given that fact, the appeal grounds were dealt with in a pragmatic way by both the respondent and the Court addressing the substance of the complaints. The nimble minds of the legal representatives who appeared for the respondent in adapting their submissions to the case as it emerged at the hearing of the appeal is noteworthy and was appreciated.
8․The appellant’s primary complaint is that the magistrate erred in finding him guilty, because it had not been established beyond reasonable doubt that he intended to use force or strike the police officer.
9․In respect of the sentence itself, the appellant complained that the imposition of a conviction and a $600 fine was manifestly excessive in all the circumstances, which included the conduct constituting the offence and his minimal criminal history. The matter of most concern to the appellant was the fact of a conviction for assaulting a police officer, and the disproportionate consequences it would have for him in terms of work and personal life.
Issues on Appeal
10․There are broadly three issues on appeal:
(a)Issue 1: Whether to admit the fresh or further evidence the appellant wishes to put before the Court.
(b)Issue 2: Whether there was error in the finding that the appellant was guilty of the elements of the offence charged.
(c)Issue 3: Whether the sentencing magistrate erred in sentencing the appellant, in particular by imposing any conviction at all.
11․As will become apparent from the reasons that follow, I consider it appropriate to grant leave to adduce part of the additional evidence.
12․In respect of the conviction appeal, I have found that there was no error in the magistrate finding the appellant was guilty of the elements of the offence charged, but I am not bound by the factual finding of deliberate intention and have instead found the elements proven by way of recklessness.
13․The admission of additional evidence and the finding in relation to the appellant’s conduct being reckless results in the Court exercising the sentencing discretion in different circumstances than those that came before the magistrate. The Court must resentence because the offence (as constituted by the facts found on appeal) is one of lesser objective seriousness than that found by the magistrate and with more favourable subjective circumstances established by the additional evidence on appeal.
Court’s Powers on Appeal
14․Sections 207, 208 and 218 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) empowers the Supreme Court to hear and decide the criminal matter on appeal. This includes appeals on both sentence and conviction.
15․The nature of this appeal is by way of a rehearing, and it includes consideration of the evidence before the Magistrate and consideration of new evidence permitted to be adduced in this Court: Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303-4; Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 (Peverill) at [24], cited in Ward v Richardson [2021] ACTSC 130 at [12] and Greenwood v Barlee [2018] ACTSC 46 (Greenwood) at [2]-[4].
16․Those cases set out the principles upon which appeals such as the present appeal are to be conducted. The appellant must establish that the Magistrate made an error (whether legal, factual or discretionary). Among the principles stated in Peverill at [24], the Court is required on appeal to conduct a real and independent review of the evidence at the trial and the magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from the primary facts found by the court below. In doing so, it must take into account any advantage that the tribunal of fact had in the proceedings below: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [25], applied in this jurisdiction in cases such as Lukatela v Birch [2008] ACTSC 99; 223 FLR 1at [21]; McElholum v Hughes [2015] ACTSC 78 (McElholum) at [16]-[17] and more recently in Ji v Stone [2023] ACTSC 54 (Ji) at [153].
17․In relation to the sentencing aspect of the appeal, a claim that a sentencing judge has erred in the exercise of their discretion calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. An appellate court must therefore respect the wide discretion of the sentencing judge concerning an appropriate sentence and will not set aside the sentence imposed by the sentencing court simply because the court on appeal would have imposed a different sentence. The appellate court must resist “tinkering” with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62].
Should the Court admit the additional evidence?
18․In the present case, the application to adduce evidence on appeal relates to three kinds of evidence:
1.Item 1: Video footage of the incident taken from a camera angle different to the footage that was tendered in the court below. The appellant had sought to put this footage before the court below but technical difficulties on the day prevented it from being tendered.
2.Item 2: Further video footage of the incident being the same footage that was in evidence in the court below, but slowed down and repeated in parts.
3.Item 3: A number of character references which the appellant did not obtain prior to the hearing in the court below as he was not anticipating being sentenced on the same day as the finding of guilt was made.
The power of the Court to admit evidence on appeal
19․The Court has the power to admit fresh or new evidence on appeal pursuant to s 214 of the Magistrates Court Act. The relevant parts of that section are in the following terms (emphasis added):
214Appeals in cases other than civil cases
(1)This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2)In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3)In an appeal to which this section applies, the Supreme Court must—
(a)if it considers it necessary or expedient to do so in the interests of justice—
(i) order the production of [any document in or connected with the appeal]… ; and
(ii) order any person who was … a compellable witness in the proceeding to attend for examination …; and
(iii) receive the evidence, if tendered, of any witness; and
(b)receive evidence with the consent of the parties to the appeal.
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b)the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
20․The above section is not straightforward to understand. It has generated discussion of various approaches in cases such as SBT v Wright [2021] ACTSC 322; 17 ACTLR 137at [43]-[67]; Kristiansen v Yeats [2022] ACTSC 351 at [39]-[46] and Mahanay v Phelan [2023] ACTSC 162 at [33]-[44]. The emphasised parts of the section above are those potentially enlivened by the present application.
21․In Ji, Baker J stated at [109]-[114] (references omitted):
109.The application of s 214 was considered in Greenwood v Barlee … at [41] – [42], SBT v Wright … at [43] – [67] and Kristiansen v Yeats … at [41] – [42].
110.As outlined in these authorities, there are three different bases upon which additional evidence may be admitted under s 214:
(i)Where the parties consent (s 214(3)(b) of the Magistrates Court Act);
(ii)Where there is a “reasonable explanation” for the previous failure to adduce the evidence (s 214(4)(b) of the Magistrates Court Act); and
(iii)Where the Court otherwise considers it to be “necessary or expedient” in “the interests of justice” for the evidence to be admitted (s 214(3)(a) of the Magistrates Court Act).
111.Categories (ii) and (iii) correspond, in general terms, with common law authorities concerning the distinction between ‘fresh’ and ‘new’ evidence. Category (ii) broadly corresponds with what is referred to as ‘fresh evidence’, namely, evidence that could not have been obtained with the exercise of reasonable diligence, whilst category (iii) broadly corresponds with what is referred to as ‘new evidence’, namely evidence that could have been obtained with the exercise of reasonable diligence.
112.At common law, ‘fresh evidence’ (evidence which could not have been discovered with the exercise of reasonable diligence) is received more readily than ‘new evidence’ (evidence that was actually or constructively available to the accused at the time of trial).
113.Similarly, under s 214(4), additional evidence must be admitted where there is a “reasonable explanation” for the previous failure to adduce the evidence; the evidence is credible; the evidence would have been admissible in the proceedings below; and the evidence could afford a ground of appeal. However, where there is no “reasonable explanation” for the failure to adduce the additional evidence, the evidence will not be admitted unless the appellant satisfies the Court that it is “necessary or expedient” in “the interests of justice” for the evidence to be admitted.
114.The admission of further evidence under the “interests of justice” limb in s 214(3) of the Magistrates Court Act may be more liberal than the admission of ‘new evidence’ at common law. However, the determination of what is in the interests of justice remains “heavily influenced by the notion of a miscarriage of justice as explained by the High Court”.
22․I have admitted Items 1 and 3 and treated Item 2 as an aide memoire without taking into account the written commentary accompanying the footage (as requested by the appellant).
23․The reason for admitting Item 1 was because I was satisfied the evidence would have been admissible in the court below and that there was a reasonable explanation for the failure to adduce it. The transcript of the hearing below indicates the footage was tendered as a YouTube link which the appellant envisaged the Court would click on to see the footage. The learned magistrate expressed concern about how it could be tendered as the video was not in a downloaded form. However, no ruling was made by the magistrate as to whether it would be admitted in that form or not and there was no discussion about whether the appellant could put the video before the court in some other format.
24․The respondent opposed the admission of this ‘new evidence’ (being evidence that is ‘actually or constructively available to the appellant at the time of the hearing’), mainly because the different camera angle was said to provide no greater insight into the relevant conduct than what was already tendered before the court below. For reasons explained below, I do not accept that to be the case. The respondent further argued that the video was of lesser quality and the view of the incident was partially obstructed by bystanders. These are all matters that might go to the weight or reliability of the evidence. Where there is a self-represented litigant, unfamiliar with either the rules of evidence or the logistics of tendering evidentiary material, a brief adjournment may well have enabled the footage depicting a different camera angle to have been downloaded onto a USB stick and then tendered by him.
25․The appellant’s argument was that if the magistrate had only looked at the different camera angle, that would have shown what occurred was an accident, rather than a deliberate act. It is trite that justice must not only be done, it must be seen to be done: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259D per Kirby P. With that obligation in mind, I was prepared to receive and view the lesser quality footage taken from the alternative camera angle. Again, the words appearing across the screen of the video footage were disregarded as being irrelevant to the facts in issue.
26․With regard to Item 2, the footage itself was already part of evidence, the main difference was that it was slowed down and repeated in parts. I formed the view that the footage itself was not separate evidence, but was provided to assist the Court in reviewing the conduct.
27․With regard to Item 3, I have admitted the character references only on the sentence, for similar reasons to those expressed in relation to Item 1, namely that I accept there was a reasonable explanation for the lack of character references at the sentencing hearing.
28․The appellant’s explanation was in essence that he did not appreciate that the magistrate would move straight from a contested hearing to a judgment, followed immediately by a sentencing hearing and then imposition of a sentence, without any adjournment. He was told at the outset by the magistrate that the magistrate would “conduct the hearing today”. The magistrate then proceeded to give a very comprehensive explanation of the process for conducting the hearing in relation to whether the offence was proved. The transcript records his Honour then concluded his explanation by saying: “Once that all occurs, I will then make a decision. I need to give some reasons when I make that decision. Okay? Anything further before we start?”
29․There was nothing to suggest that the magistrate intended to proceed to immediate sentence if the appellant was found guilty. Once the magistrate had found the appellant guilty of the offence the subject of this appeal, there was then no explanation that his Honour was moving to consider sentencing the appellant. There was discussion about criminal history and victim impact statements with the prosecution. It was only half-way through the sentencing process that the magistrate told the appellant, “…it’s your opportunity to address me, maybe even provide further evidence, in relation to the question of sentence. That’s my next decision, what penalty to impose.” It was at that point the appellant responded, “Okay. Look, I’m a bit taken aback, I didn’t expect this outcome.”
30․The appellant submitted that the character references comprised in Item 3 are the documents he would have obtained, had he understood the process, and in particular that if he was found guilty, a sentencing hearing would immediately follow. The appellant did not expressly raise a denial of procedural fairness, but I have some disquiet about whether the procedure that was followed in this particular case gave the appellant sufficient opportunity to understand what was going on and to be heard on matters relevant to sentence. While procedural fairness always moulds to the circumstances of the case, it is not merely a speed bump on the highway of efficiency in a busy Magistrates Court. However, it is unnecessary to engage with that issue further because it is overtaken by the findings on the appeal that follow.
31․For completeness, at the hearing on appeal, the appellant also sought to raise additional evidence consisting of video footage of an unrelated protest. This may have been described as new evidence, which the appellant argued was relevant to the respondent’s character (and in turn, whether the respondent was telling the truth about the facts in the court below).
32․The only basis on which such evidence may have been relevant was to challenge the credibility of the police officer generally. If it were admitted, it may have been necessary to provide it to the respondent for comment. The key issue in dispute was really the appellant’s intention. As will be seen below, the police officer’s evidence about the appellant’s state of mind was formed by reference to watching the video footage after the event (that is, the police officer was in no better position than the court). I was not satisfied the evidence was admissible under any of the pathways provided for by s 214 of the Magistrates Court Act.
Issue 2: Did the magistrate err in finding the appellant guilty of the offence?
33․As was emphasised by the respondent, the consideration is whether there was error in the magistrate being satisfied beyond reasonable doubt of each of the elements of the offence. That calls attention to what the elements are.
Elements of s 26A of the Crimes Act
34․The elements of the offence in question, s 26A of the Crimes Act, are set out below:
(1)A person commits an offence if—
(a) the person assaults another person; and
(b)the other person is a frontline community service provider; and
(c)the person knows, or is reckless about whether, the other person is a frontline community service provider; and
(d)the assault is committed—
(i) when the frontline community service provider is exercising a function given to the person as a frontline community service provider; or
(ii) as a consequence of, or in retaliation for, action taken by the person in exercising a function as a frontline community service provider; or
(iii) because the person is a frontline community service provider.
35․Assault is not defined under the statute. At common law an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence: see Burnett v Gowing [2003] ACTSC 89 (Burnett) at [9], citing Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 at 444 per James LJ. See also Ramalingam v McCue [2019] ACTSC 114 at [51], citing R v Burstow; R v Ireland [1997] UKHL 34; [1998] 1 AC 147.
36․Of some relevance to the circumstances in consideration here, Connolly J went on to note in Burnett at [10] that the state of mind (intention or recklessness) is not an intention to cause actual harm. The fault element is satisfied if the person intended to cause a fear of harm, or adverted to the possibility of that outcome and proceeded regardless (recklessness). The only difference here is that the common law test is now replaced by the statutory definition discussed below.
37․The elements at common law have been set out in different ways in cases such as R v Ramalingam [2011] ACTSC 86 at [174], McElholum at [144], R v Garland [2020] ACTSC 242 at [22]. In summary, they are:
(a)The infliction of force, or the threat of infliction of force, on another to put them in fear;
(b)An intention to do those acts, or being reckless as to whether they will inflict force or engender fear;
(c)The other person does not consent to the infliction (or threat) of force; and
(d)There is no lawful excuse for the infliction (or threat) of force.
38․For the present case, the issue is not whether the appellant intended to strike the police officer. The concern is whether the appellant intended or was reckless about causing the police officer to fear that he would be struck by the appellant (whether by his fist or the drumstick).
39․The prosecution case was put in the Court below on two alternatives:
(a)the appellant intended to inflict force on the respondent: ss 7 and 18 of the Criminal Code 2002 (ACT) (Criminal Code), s 26A(1)(c) of the Crimes Act; or
(b)the appellant was reckless as to the infliction of force on the respondent: ss 7 and 20 of the Criminal Code, s 26A(1)(c) of the Crimes Act.
40․The relevant parts of the definition of “intention” are contained in s 18(1) and (2) of the Criminal Code:
(1)A person has "intention" in relation to conduct if the person means to engage in the conduct.
(2)A person has "intention" in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
41․In R v Roux [2015] ACTSC 307 (Roux) at [120]-[121], Refshauge ACJ discussed the element of intention. His Honour drew on Parker v The Queen (1963) 111 CLR 610 where it was stated at 648-9:
In every case where intent is in question the question is what did the accused … intend. Of that, the acts he did may well provide the most cogent evidence. In some cases the evidence that the acts provide may be so strong as to compel an inference of what his intent was, no matter what he may say about it afterwards. If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports an intention to produce the consequence. …
42․The relevant part of the definition of “recklessness” is s 20(1) of the Criminal Code:
(1)A person is reckless in relation to a result if—
(a)the person is aware of a substantial risk that the result will happen; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
43․The language of s 20 of the Criminal Code is that used in s 5.4 of the Schedule to the Criminal Code Act 1995 (Cth). In discussing the definition of “recklessness”, it has been stated that:
(a)The term ‘substantial’ means “real or of substance as distinct from ephemeral or nominal”: Hann v Director of Public Prosecutions (Cth) [2004] SASC 86; 88 SASR 99 (Hann) at [25], cited in Roux at [131], R v RH [2011] ACTSC 38 at [14] and R v Calis [2013] QCA 165 at [33];
(b)The word “risk” means “possibility, chance or likelihood”: Hann at [25]; and
(c)Awareness requires a conscious awareness – it is not enough to show that the risk was obvious or well-known: Hann at [26], cited in Roux at [132].
The magistrate’s finding and reasons
44․The magistrate’s finding was that the conduct was intentional, as follows:
It’s clear to me that what occurred was intentional. I make that finding beyond reasonable doubt, without any reservations whatsoever. I make that finding, noting the behaviour and the disruptive behaviour of the defendant beforehand, but, more importantly, the fact that the police officer stayed exactly where he was, the defendant was engaged with the police officer, in a way that involved a degree of conflict or malice, and that is that disruptive behaviour he was engaged in, and he had turned and immediately moved his hand in the direction of where the police officer’s face was.
There’s no doubt in my mind that that was a deliberate intention and I note that any suggestion otherwise is really just as cowardly as the strike itself. The strike was without notice, without warning and in a way that attempted to pretend that it was inadvertent. It’s probably an extreme form of passive aggressiveness. So I make that finding.
I note the elements of the offence involving assault on a person. To my mind, the defendant clearly struck the police officer, did so deliberately, applied force, did so without any reasonable excuse, and that amounts to an assault.
Consideration
45․The magistrate’s finding was based primarily on the video footage of the incident in evidence. The respondent’s evidence was that he only formed a view about the intention of the appellant after watching the same footage. That being the case, this court is in as good a position to make findings of fact and draw inferences as the court below.
46․The circumstances in which the contact with the police officer occurred are significant in deciding whether it is established beyond reasonable doubt that the contact of the police officer was intentional, as found by the magistrate. The footage shows that shortly before the conduct in question, the police officer grabbed both drumsticks being held by the appellant as he was playing. The appellant moved his hands backwards and away from the police officer. It is clear that by this movement, the appellant tried to get the police officer to let go of the drumsticks. However, the police officer continued to hold the drumsticks. That resulted in the pair each holding the drumsticks with their arms outstretched. The police officer told the court below that the reason for grabbing the drumsticks in the first place was not that the appellant was doing anything unlawful, it was simply that the officer was having trouble thinking when the drums were being played loudly by the appellant in close proximity to him, and the officer wanted the drumming to stop.
47․The video footage then shows that once the drumsticks were released by the respondent, the appellant started playing again. At this point, the different camera angle provided by Item 1 is in fact very useful. It shows the appellant bringing his hand with the drumstick down to play the drum and the police officer’s hand coming up to again grab the drumstick. The appellant does sharply move the drumstick away towards the police officer’s face, but the camera angle shows two things: first, that this is to prevent the police officer from again grabbing the stick as he had just previously done, and second, that the appellant was turning away from the police officer at the time he moved his hand up sharply, which resulted in the dislodgment of the respondent’s hat and glasses and the touching of his cheek.
48․I accept the appellant’s hand movement with the drumstick was deliberate. I also accept the police officer’s face was in the proximity of where he moved his hand. However, I am not satisfied beyond reasonable doubt that the appellant’s conduct was designed to strike the police officer or cause the police officer to fear harm that he would be hit. The reason I have such a doubt is that the movement of the drumstick occurred in the space of a second, as a direct response to the police officer’s hand attempting to close around the drumstick in a grabbing motion. It was as much a movement intended to move the drumstick away from the police officer’s hand as a movement towards the police officer’s face. Further, the part of the drumstick that caused the police officer’s hat to fall off his head was the end tip that protruded slightly from the appellant’s hand. The movement is more properly described as a brush, rather than a strike.
49․From my review of the footage, aided by the additional camera angle in Item 1 that was not before the magistrate, there is a reasonable doubt not only about whether the actual use of force against the police officer was deliberate, but about whether the appellant intended to cause the police officer to fear harm that he would strike him with either his fist or the drumstick or both.
50․However, as submitted by the respondent, it does not necessarily follow that there was error in the magistrate’s finding that the elements of common assault were satisfied, because the case was put on two alternatives. The second alternative is that the appellant was reckless as to whether his conduct would cause the police officer to fear harm. I am satisfied beyond reasonable doubt that the appellant was reckless in the sense described above.
51․The appellant relied to some extent on the fact that he was wearing dark sunglasses. While that may further support the doubt entertained with regard to intention above, it cannot be said the appellant was unaware of where the police officer was, particularly given his interaction with the respondent just moments before. The video footage demonstrates beyond reasonable doubt that the appellant was aware the respondent was in close proximity to him, physically separated only by the small snare drum strapped to the appellant. The appellant was interacting with the officer, moving the drumstick away from the officer’s hand. This is not a case (by way of a contrasting example) where the appellant was facing in a different direction and did not know the police officer was behind him.
52․Being aware of the police officer’s presence and proximity, it is a fairly obvious thing to state that if a person moves their hand quickly towards another’s face holding a drumstick, the other person will perceive fear that they may be hit.
53․There are various ways the appellant could have moved his arm away from the police officer without moving the drumstick towards the police officer’s face. By raising his arm in the direction of the respondent’s face, the appellant must have appreciated there was a real possibility that his hand, or the drumstick he was holding, would connect with the respondent in some way. I accept that this all happened in the space of a second and that the appellant was not looking directly at the officer when the conduct occurred, but that is part of why I am satisfied beyond reasonable doubt of his recklessness – he made no attempt to ensure his fist and stick were not near the police officer’s face, leaving it to the police officer to suffer the consequences.
54․The result is that while I consider the magistrate’s factual finding as to intention was in error, drawing my own inferences from the evidence, the elements of the offence were still established beyond reasonable doubt on the alternative case of recklessness. There is no basis to disturb the magistrate’s finding that the appellant was guilty of the elements of the offence.
Issue 3: Is there error in the sentence imposed?
55․The above finding has a consequence for the appeal against sentence. It was accepted by the respondent that if the Court found that the fault element was established by recklessness rather than by intention, that would require the Court to resentence the appellant. That is because a finding of recklessness reduces the appellant’s moral culpability, which in turn impacts upon the assessment of objective seriousness. This is a mandatory consideration under s 33(1)(a) of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act) and affects the instinctive synthesis of the sentence imposed by the magistrate.
56․In terms of assessing the objective seriousness, the offence here was fleeting and unplanned, and the threat of force was itself minimal. On any view, while an assault of a front-line worker is always serious, the conduct itself was at the very low end on the spectrum of offending.
57․In terms of subjective features of the offending, the Court must take into account the additional evidence in relation to the appellant’s character that has been admitted on appeal. The other subjective features remain those taken into account by the magistrate.
58․The question of key significance is whether the Court should sentence the appellant pursuant to s 17 of the Sentencing Act. Sections 17(1) and 17(2) provide that:
17 Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b)a good behaviour order under section 13.
59․When deciding whether to make a non-conviction order, the Court must consider the factors set out in ss 17(3) and 17(4) of the Sentencing Act as follows:
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a)the offender's character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
60․A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The recording of a conviction is described as “a formal and solemn act” to mark the to mark the disapproval of the offender’s wrongdoing by the court and society: Vuolo v Fall [2023] ACTCA 33 (Vuolo) at [33], citing R v AB [2022] NSWCCA 3 at [39].
61․The discretion conferred is very broad: Proud v Sladic [2014] ACTCA 26 (Proud) at [28]. As this Court discussed in Vuolo at [37]-[39] citing Proud at [42], the absence of a conviction has been described as an “exceptional outcome”. This reflects the nature of the power to make a non-conviction order and the rationale behind it. Compelling or cogent circumstances must be demonstrated before a court is “persuaded to deviate from the ordinary consequence of criminal offending”: Kinnane v Beattie [2022] ACTSC 265; 372 FLR 358 at [39].
62․Balanced against this, in R v Ingrassia (1997) 41 NSWLR 447 at 449, in the context of discussing a similar power in existence in the NSW jurisdiction, Gleeson CJ stated at 449 (McInerney and Ireland JJ agreeing):
…The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 269, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”.
63․I have also set out various authorities relevant to a consideration of s 17 in DPP v Chen [2023] ACTSC 154 (Chen) at [63]-[70], which I will not repeat here. The authorities establish that an ‘individualised justice’ approach must be taken in considering whether s 17 applies: Chen at [71].
64․The appellant is 50 years old. He has one historical conviction in Queensland from 1994 of using insulting words. Applying Veenv The Queen (No 2) (1988) 164 CLR 465 at 477-8, what occurred was an uncharacteristic aberration and this is supported by the character references. It is uncontroversial that he is regarded as a person with very low risk of re-offending.
65․In R v FI [2017] ACTSC 190 at [27], Mossop J explained that s 17 does not require the offence to be a trivial one and is not confined to cases in which there are extenuating circumstances. Nevertheless, here the conduct did occur in extenuating circumstances, those being that the appellant’s conduct was in response to an unfortunate interaction with a police officer who himself was perhaps not making the best choices under stress in relation to the protest that was occurring. That is not to be taken as a criticism of a front-line worker doing a difficult and thankless job, but rather to recognise that front-line workers are human and may not respond to stress with text-book perfection every time. At the heart of the offence itself is the protection of these valuable and vulnerable members of society from any threat of harm at all regardless of the decisions they make in the performance of their duties. Ultimately however, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler (1987) 163 CLR 561 at 577.
66․The objectives of personal deterrence, general deterrence and denunciation can all be given effect through a good behaviour order that will be imposed. Having regard to the low objective seriousness, the extenuating circumstances and the consequences that would flow from the recording of a conviction, the lack of utility in this case that a conviction would serve for the protection of the community and the impact that a conviction may have upon the future employability of the appellant, I have concluded that recording a conviction in addition to the requirements of a good behaviour order would be an outcome that is disproportionate for the conduct involved, such that an order under s 17 of the Sentencing Act is warranted.
Orders
67․For the above reasons the following orders are made:
(1)The appeal is allowed in part.
(2)The order made by the Magistrates Court on 25 January 2023 in relation to CAN2022/4609 is set aside.
(3)In lieu thereof, a non-conviction order is made pursuant to s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
(4)In accordance with s 13 of the Sentencing Act, the appellant is required to give an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months commencing on 19 December 2023 and concluding on 18 December 2024, with core conditions applicable only.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: 19 December 2023 |
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