Males v POLICE - [2009] SASC 252

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MALES v POLICE
[2009] SASC 252
Judgment of The Honourable Justice Kelly
21 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Appeal against conviction and sentence - appellant convicted after trial of one count of intentionally applying force causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 - Magistrate sentenced appellant to seven months imprisonment, suspended upon the appellant entering into a bond to be of good behaviour for a period of two years - whether Magistrate failed to properly direct himself in relation to the issue of self defence - whether the finding of guilt beyond reasonable doubt was unsafe and unsatisfactory - whether sentence was manifestly excessive - whether Magistrate should have considered alternatives to imprisonment.
Held: Appeal dismissed - issue of self defence was sufficiently addressed - sentence held to not be manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 20(4), s 15, referred to.

MALES v POLICE
[2009] SASC 252
Magistrates Appeal
KELLY J:
Introduction

The appellant appeals against conviction and sentence. On 29 May 2009 after a trial the appellant was convicted of one count of intentionally applying force causing harm contrary to Section 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The magistrate sentenced him to seven months imprisonment which was suspended on the appellant agreeing to enter into a bond to be of good behaviour for a period of two years.
Two grounds of appeal were advanced on the appeal against conviction, the first, that the magistrate failed to properly direct himself in relation to the issue of self defence, the second, that the finding of guilt beyond reasonable doubt is unsafe and unsatisfactory.
The main argument advanced by the appellant’s counsel in support of both grounds was that the magistrate failed to properly direct himself or to apply the test for self defence in Section 15 of the Act. It was contended that the prosecution could not and had not disproved beyond reasonable doubt that the appellant held a genuine belief that his conduct was necessary and reasonable for a defensive purpose. Thus, in those circumstances the magistrate could only have proceeded to find the appellant guilty if he concluded that the appellant’s conduct was not proportionate in accordance with the test set out in s 15(1)(b) of the Act, an issue which the appellant contended the magistrate failed to address.
The appellant also appeals against the sentence of seven months imprisonment. Two main arguments were advanced in support of this appeal the first, that a sentence of imprisonment was in itself, manifestly excessive and the magistrate should have considered alternatives to imprisonment. The second, and in the alternative, that even if imprisonment was warranted the sentence of seven months imprisonment was manifestly excessive.
Appeal against conviction
On the night of 14 October 2007 the victim Mr Mitchell Doughty was celebrating a victory for his cricket team at two hotels in Port Lincoln. At about 1.00 am he and three friends made their way to the Shell petrol station to buy some food. By that stage of the evening the victim had consumed a large quantity of alcohol.
Parked in the petrol station side by side were two vehicles. In one of the cars Mr Doughty noticed his sister sitting in the front passenger seat. He approached the car announcing that he was “pissed” and began knocking, at first on the driver’s side of the vehicle and then the front passenger side window where his sister was seated.
In a vehicle parked to the left of this car was a utility containing three men including the appellant who was sitting in the driver’s seat. The man in the passenger seat behind the utility driver, one Mr Cummins, called out to Mr Doughty words to the effect “What do you think you are doing?” to which Mr Doughty responded loudly with much swearing that the woman he had approached in the adjacent car was his sister.
According to the evidence which the magistrate accepted, Mr Doughty then, waving his hand around, put his hand through the utility window and slapped Mr Cummins with a cricket cap. At this point in the unfolding of events the appellant exited the utility and words were exchanged between the appellant and Mr Doughty. The appellant then punched Mr Doughty to the jaw. Mr Doughty fell backwards to the ground. The appellant got back into the utility and drove off.
The magistrate accepted that although Mr Doughty was drunk, boisterous and subsequently abusive, that he never threatened anyone with violence. There were two other men in the utility driven by the appellant. There was no evidence to suggest that Mr Doughty did anything violent, aside from hitting one of the occupants in the back seat of the utility with a cricket cap. The appellant exited the utility and exchanged words with Mr Doughty before assaulting him. The whole event occurred in the space of less than two minutes, possibly even one minute. There was nothing that prevented the appellant from simply reversing and driving his vehicle off before the altercation with Mr Doughty, a course which apparently he took immediately after assaulting him.
Against that background the learned magistrate then considered the issue of self defence. He said at [13] and [14]:
I reject the idea of a push by Mr Males to Mitchell offered by the evidence of Mr Haagmans and Mr Cummins. I accept the evidence of Jane Doughty that Mr Males punched Mitchell to the jaw and I find it was that punch that caused his jaw to be fractured. I have not heard from Mr Males as to his belief as to the circumstances. I repeat that in saying that, I do not suggest any adverse inference from his choice not to give evidence.
I am left to rely upon and I do rely upon Jane Doughty’s description of the circumstances that might have engendered a relevant belief in Mr Males mind. While I accept that Mitchell behaved in a belligerent and obnoxious manner, I do not find that it was reasonably possible that the punch was a self-defensive action as defined and described by section 15 of the Criminal Law Consolidation Ac (sic) 1935. It was, I find, an unlawful application of force. I find the charge proved.
The appellant complains that the magistrate did not there address the matters he was required to address by virtue of the provisions of s 15(1) of the Act.
Section 15(1) states:
15—Self defence
(1) It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
Particular complaint is made that the magistrate failed to address the issue of whether in the circumstance as the defendant reasonably believed them to be, his conduct was reasonably proportionate to the threat that he genuinely believed to exist.
The appellant’s argument is predicated on an assumption that the magistrate in the passage quoted has accepted even as a reasonable possibility, that the appellant did have a genuine belief that his conduct was necessary and reasonable for a defensive purpose.
I cannot accept the appellant’s argument. When the magistrate’s remarks are understood in context, his Honour was there dealing with the evidence which might have given rise to a defence of self defence. After, in effect, rejecting the evidence of the other witnesses and noting that the appellant had not given any evidence, the magistrate concluded by stating that he was left with the evidence of Jane Doughty about the circumstances in order to determine if those circumstances could have given rise to a relevant belief in the appellant’s mind. He unequivocally accepted Jane Doughty’s evidence that the appellant punched the victim to the jaw, rejecting the suggestion by the defence witnesses that it was nothing more than a push. He then directly confronted the issue of self defence concluding beyond reasonable doubt that it was not reasonably possible that the punch inflicted by the appellant was a self defensive action within the meaning of s 15 of the Act.
In these circumstances it is difficult to understand the submission that the magistrate has not addressed his mind to the relevant issues arising under s 15 of the Act.
In any event I have read the transcript of the evidence at trial. There is ample evidence to support the magistrate’s conclusion. The victim at no stage uttered any threats. Whilst he might have been drunk and boisterous when approaching the vehicle in which his sister was sitting, there is no evidence that he did anything violent aside from hitting one of the occupants of the utility with a cricket cap. The fact that the appellant exited the utility and exchanged words with Mr Doughty is suggestive in itself that he was not intimidated by Mr Doughty’s antics at the service station. A telling item of evidence is that immediately after the incident Mr Doughty’s sister and her friends drove after the appellant and his friends and arranged a meeting later that night for the appellant to apologise to the victim. On the whole of the evidence there is nothing to suggest that the appellant was in any way intimidated by the victim that evening. In my view the findings of the magistrate are amply supported by the evidence.
Appeal against sentence
The appellant’s assault of Mr Doughty caused his jaw to be broken in two places and one of his teeth to be fractured. The injuries necessitated the insertion of two plates and three screws together with root canal surgery to repair the cracked root of the tooth. The assault therefore was a forceful one resulting in significant injury to Mr Doughty.
The appellant is a twenty six year old man with two previous convictions for assault. The first was in the Port Lincoln Youth Court in respect of which he was placed on a good behaviour bond for eighteen months and a conviction was recorded. The second was in the Magistrates Court at Port Lincoln on 11 June 2003 when he was dealt with without conviction and fined.
It is apparent from the affidavits filed on appeal that the magistrate did make brief remarks on sentence however they have not been made available to this Court. In these circumstances I am not prepared to find that the magistrate did not give reasons. It is obvious that he did.
This offence occurred in the context of a group of young people enjoying a night out in a small country town. I have already remarked that the magistrate was justified in finding that the assault by the appellant was an unprovoked and unjustified act of gratuitous violence causing significant injury to the victim. In these circumstances and particularly given the appellant’s previous court appearances, considerations of both general and personal deterrence were important. A sentence of seven months imprisonment suspended was well within the sentencing discretion available to the magistrate. For these reasons I dismiss both the appeal against conviction and the appeal against sentence.