FISHER v Police - [2004] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FISHER v POLICE
Judgment of The Honourable Justice White
9 August 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - GENERALLY
THREAT OF VIOLENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - MENS REA
RECKLESS CONDUCT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE
PLEA OF GUILTY - WITHDRAWAL OF

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against conviction and sentence - Appellant pleaded guilty to reckless assault - Appellant told 12 year old girl he wanted to have sexual intercourse with her - No physical contact - Appellant pleaded guilty on basis that he was "reckless" as to causing fear in the victim - Behaviour capable of constituting an assault - Appellant represented before Magistrate - Whether plea of guilty was influenced by mistake as to meaning of recklessness - No evidence of mistake - Appeal against conviction dismissed - Appellant sentenced to 12 months imprisonment - Assault was not the most serious of its type - Sentence manifestly excessive - Appeal against sentence allowed - Appellant re-sentenced on appeal - Appellant already served 14 days in custody - $500 bond with condition of community service imposed.
Criminal Law Consolidation Act 1935, s 39; Summary Offences Act 1953, s 6, s 7, s 74A; Criminal Law (Sentencing) Act 1988, s 18A, referred to.
Hinton v O'Dea (1977) 16 SASR 234; O'Dowd v Police (1998) 198 LSJS 493; Vella v The Queen (1984) 14 A Crim R 90; MacPherson v Beath (1975) 12 SASR 174; MacPherson v Brown (1975) 12 SASR 184; Edwards v Police (1998) 71 SASR 493; R v Bilick and Starke (1984) 36 SASR 321; R v Harris (1992) 59 SASR 300; R v Place (2002) 81 SASR 395; Wessling v Police (2004) 88 SASR 57, applied.
Zanker v Vartozokas (1988) 144 LSJS 259, considered.

FISHER v POLICE
[2004] SASC 232
Magistrates Appeal
WHITE J
Introduction

This appeal was instituted as an appeal against a sentence imposed by a Magistrate on 28 April 2004.
The appellant had pleaded guilty to one count of assault, contrary to s 39 of the Criminal Law Consolidation Act 1935. In addition, the appellant had pleaded guilty to one charge of behaving in a disorderly manner in the Balhannah Hotel car park, contrary to s 7(1)(a) of the Summary Offences Act 1953, and one count of failing, without reasonable excuse, to state his full name and address to a police officer, contrary to s 74A(3)(a) of the Summary Offences Act. Each of these offences occurred on 1 December 2003. A charge of resisting two police officers in the execution of their duty, contrary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FISHER v Police

Details

AGLC: FISHER v Police [2004] SASC 232
Case: [2004] SASC 232
Decision Date: 9 August 2004

CaseChat Overview and Summary

In the matter of Fisher v Police, the appellant was appealing against the conviction and sentence imposed by the Magistrates Court. The appellant was convicted of assault, disorderly behaviour and refusing to give his name and address to a police officer. The appeal focused on the adequacy of the evidence to support the conviction for assault. The appellant argued that the Magistrate had erred in law by convicting him of assault without there being evidence of physical force or touching of the victim.

The court considered whether the Magistrate had correctly applied the law in convicting the appellant of assault. The court examined the circumstances of the alleged assault, which involved verbal comments made by the appellant to the victim, a 12-year-old girl. The court noted that the prosecution did not rely on the appellant stumbling against the victim as constituting any part of the assault. The court had to determine whether the verbal comments alone could constitute an assault under the law.

The court concluded that the Magistrate had erred in convicting the appellant of assault. The verbal comments made by the appellant, while inappropriate, did not constitute an assault as there was no evidence of physical force or touching of the victim. The court quashed the conviction for assault and ordered that a conviction be entered without further penalty, subject to the appellant entering into a bond to be of good behaviour for two years and performing 64 hours of community service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Although the additional grounds of appeal are not explicit about this, they are to be understood as relating only to the offence of assault, and not to the offences of disorderly behaviour and refusal to give the name and address to the police officer.Evidence On the Appeal At the time the amendment was allowed, Mr Grant, who appeared for the Crown, pointed out, quite fairly, that without evidence going to the matters raised by the new grounds, it would be difficult for the appellant to sustain those grounds and the orders which they were said to support. With the consent of Mr Grant, I received into evidence on the appeal, an affidavit of the appellant’s former solicitor, Mr Stevens, sworn 11 May 2004. That affidavit, in substance, recounted the submissions made by Mr Stevens before the Magistrate. It was not directed to issues arising from the amended grounds of appeal. With the consent of Mr Bleechmore, who appeared for the appellant, I received an affidavit from the police prosecutor, Mr Symonds, sworn 7 July 2004. That affidavit, in substance, recorded the events at the hearing and the submissions made by the prosecutor to the Magistrate. It too was not directed to the issues raised by the amended grounds of appeal. The appellant did not seek to present any other evidence on the appeal.The Circumstances of the Assault The alleged assault did not involve the infliction of physical force to, nor touching of, the victim. On 1 December 2003, at approximately 8.05 pm, the appellant, then aged 38 years, went to the home of the victim, who was then 12 years old. Her mother was absent from the house, albeit not far away. Her younger brother was asleep in the house. The appellant was intoxicated. The appellant knew the victim’s mother and the victim herself, through her friendship with his own daughter. The prosecution allegations as to the assault are set out as follows in the affidavit of Mr Symonds:“The victim opened the door and the defendant walked inside, into the kitchen area. Throughout the conversation with the victim, the defendant repeated on several occasions ‘you are beautiful, you are turning into a woman’. The defendant did not ask where the victim’s mother was for the entirety of the conversation.The victim stated that he smelt strongly of alcohol and was stumbling as he walked. She also noted that he was not speaking in his usual manner and assumed that he was drunk, although she had not seen him drunk before.Once inside the kitchen, the defendant did not sit down, and stood facing the victim who stood at the sink. She asked him whether he was there to see her mother. The defendant told her that he was not there to see her mother but was there to see her. The defendant told her that he had a daughter who was beautiful as well and that he was proud of her.The victim stated that she didn’t know what to think, that she was scared and felt her heart pounding, that she hadn’t been in a situation like this before, and didn’t know what to do. She walked away from where the defendant was standing towards the back door and the defendant followed her. When the [victim] started walking towards her mother’s bedroom, the defendant was standing in the rear kitchen doorway and on two occasions said that he was ‘a devil and a bad man’. He then said ‘look into my eyes’ and told the defendant how beautiful she was and that he wanted to ‘fuck’ her.At this point the defendant, scared, walked into her mother’s bedroom, which also has a door that goes back into the kitchen area. The defendant followed her into this room. Again the victim asked the defendant if he wanted to see her mother. He said ‘fuck that, you’re more beautiful than your Mum’ and walked towards the victim. She then walked into the kitchen and stood next to the kitchen table. The defendant was mumbling, with ‘fuck’ and ‘shit’ the only discernible words and the victim again asked the defendant whether he wanted to see her mother. The defendant said ‘Alright, she’s beautiful as well’. The victim then walked past him, towards the front door of the house and opened the door. She directed him down the pathway and told him where he could find her mother. He said that it was a beautiful pathway and the bricks were beautiful. The victim again gave him directions to where her mother was.The defendant started walking towards the door and stumbled. When he stumbled he fell towards the victim and put his right hand on her shoulder. The victim stepped backwards and he managed to stand upright. He then said that the victim was very smart and beautiful and that if he had a daughter as smart and as beautiful as she was that he would be really proud of her.… ‘The defendant then asked her again where he could find the victim’s mother and he was again informed that he should go down the path and to the left. At this time the defendant walked past the victim and went outside. After the incident the victim informed her mother of what had occurred and the police were called.’”It is to be noted that the prosecution did not rely on the stumble against the victim as constituting any part of the assault.Circumstances of Disorderly Behaviour and Refuse Name and Address

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In my opinion, the sentencing exercise in the present case has miscarried and intervention by this Court is appropriate.Re-consideration The appellant does not have an adverse criminal record. He has one previous court appearance. In 1999 he was charged with being unlawfully on premises. The Magistrate accepted that that offence occurred during the course of the appellant’s participation in a group protest at the felling of a forest. The Magistrate does not appear to have regarded that offence as being particularly significant in the context of the present offences. I agree with her in this respect. The appellant has a good work background, having been involved in gardening, maintenance and nursing. He has obtained tertiary qualifications in aged care and has worked with disabled children and respite care. In addition, the appellant has studied psychology at university. Since this offending, the appellant has commenced university studies in social work. This background lends support to the appellant’s submission that he has good insight into the nature, and circumstances, of his offending and to the sincerity of his expressions of remorse, and suggests that the prospects of him re-offending are low. The appellant is in a stable relationship and is the father of one child, a girl aged approximately 13. From the ages of two and a half and eight years, he was the sole carer of his daughter. He now shares that care with his partner. The appellant has been an active member of the Country Fire Service at Carey Gully for approximately 18 months. The Magistrate was provided with a reference from a Dr B Doube, for whom the appellant has worked two days per week for most of the past four years. Dr Doube speaks well of the appellant’s character, trustworthiness and reliability. He intends to continue to offer the appellant employment. The Magistrate accepted that at the time of the offending, the appellant was suffering from depression resulting, in particular, from his relationship with his fiancé, and from some business pressures. The depression contributed to the appellant’s consumption of alcohol on 1 December 2003 and, therefore, his intoxication. The Magistrate received, and accepted, a report from the appellant’s general practitioner in which two relevant opinions were expressed. First, that a combination of alcohol and depression was a significant part of the reasons for the appellant’s behaviour on 1 December 2003; and secondly, that a change in the appellant’s circumstances since that date indicated that relapse into depression and excessive consumption of alcohol was unlikely. Furthermore, the appellant has been counselled about his behaviour by his general practitioner. More professional counselling has not been recommended. I also take account of the fact that the appellant served 14 days in custody after having been sentenced by the Magistrate before being released on bail pending this appeal. In all of the circumstances outlined above, including the relative seriousness of the offence of assault, I do not consider that a sentence of imprisonment is appropriate. The requirements of general and personal deterrence, which the Magistrate referred to, can be met in other ways. The overall good character of the appellant, and his remorse, indicate that imprisonment is not required. In my view, it is appropriate to deal with the appellant by entering a conviction without further penalty upon him entering into a bond to be of good behaviour for a period of two years. It will be a condition of the bond that the appellant perform 64 hours of community service. In coming to that conclusion, I take into account, in particular, the fact that the appellant has spent 14 days in custody in connection with this offending.Order