Ostojic v Threlfo - [2015] NTSC 74

Ostojic v Threlfo [2015] NTSC 74
PARTIES:OSTOJIC, Stojan

v
THRELFO, Adam Thomas

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:21436774
DELIVERED:  10 November 2015
HEARING DATES:  21 August and 3 September 2015
JUDGMENT OF:  BARR J
APPEAL FROM:  COURT OF SUMMARY JURISDICTION
CATCHWORDS:

JUSTICES APPEAL – Appellant found guilty of aggravated assault – threatened application of force by bodily movements – appellant contends evidence insufficient to support a finding beyond reasonable doubt that the appellant assaulted the complainant – on appeal held that the evidence established beyond reasonable doubt that appellant intentionally threatened to apply force to complainant without her consent – appeal dismissed.
JUSTICES APPEAL – Appellant sentenced for aggravated assault and property damage – convictions recorded – appeal against recording of convictions – magistrate emphasised general deterrence in condemning acts of violent road rage – appellant failed to establish error in the exercise of the magistrate’s sentencing discretion or manifest excess by the recording of convictions – appeal dismissed.
CRIMINAL LAW – Elements of offence of assault – s 187(b) Criminal Code – threatened application of force – application of force sufficiently broad to include even a slight application of force – magistrate erred in treating victim’s fear as a necessary element of the offence – relevant question was whether the defendant had the present ability, actual or apparent, to make good the threatened application of force – evidence established all elements of the offence beyond reasonable doubt – no substantial miscarriage of justice.
Criminal Code s 1, s 31, s 187(b), s 188(2)(d), s 241(1)
Justices Act s 177(2).
Sentencing Act s 3, s 8, s 78B(2)
R v McInerney (1986) 42 SASR 111, applied.
Davis v Bennett (2003) 13 NTLR 1; Carnese v The Queen [2009] NTCCA 8; Cranssen v R (1936) 55 CLR 509; Hales v Adams [2005] NTSC 86; Mace v Hales [2002] NTSC 15; Midjumbani v Moore [2009] NTSC 27, referred to.
Bronitt and McSherry Principles of Criminal Law (Law Book Co., 3^rd edition, 2010).
REPRESENTATION:
Counsel:
Appellant:J C A Tippett QC
Respondent:  I Taylor
Solicitors:
Appellant:Withnalls
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Bar1516
Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Ostojic v Threlfo [2015] NTSC 74

No. 21436774
BETWEEN:

STOJAN OSTOJIC

Appellant

AND:

ADAM THOMAS THRELFO

Respondent

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 10 November 2015)
Appeal against guilty finding on charge of aggravated assault

After a contested hearing in which the appellant gave evidence, he was found guilty of aggravated assault[1] by the Court of Summary Jurisdiction on 2 March 2015. The alleged assault took place on 27 May 2014. The proven circumstance of aggravation was that the assault was male on female. The magistrate was not satisfied beyond reasonable doubt that the appellant was guilty of the second alleged circumstance of aggravation charged, that the female complainant “was unable to effectively defend herself due to her physique”.[2]
The prosecution relied on s 187(b) Criminal Code, in which “assault” is defined to mean:
The attempted or threatened application of such force [force to a person without his consent] where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words.
The prosecution further confined its case by alleging a threatened application of force, not an attempted application of force.
Offending conduct
The complainant was a 27 year old female. Prior to the alleged assault, she had driven from her home in Durack inbound along Tiger Brennan Drive. Her 15-month old son was in a child seat in the rear of her vehicle. She was intending to go to the Darwin Indoor Volleyball Centre. Her trip required her to turn right off Tiger Brennan Drive into Bowen Street, Winnellie.
Because of the appellant’s perception that the complainant had thwarted his attempt or attempts to overtake her vehicle on Tiger Brennan Drive, allegedly by speeding up,[3] the appellant was angry. When the complainant went to execute a right-hand turn off Tiger Brennan Drive into Bowen Road, the appellant drove his vehicle in front of her vehicle, and stopped with what the appellant described in evidence as a “moderate pullover and brake”.[4] In his handwritten incident report to police, he said that he had “braked hard”.[5] He then walked quickly to confront the complainant as she sat in her vehicle in the Tiger Brennan Drive mid-road turning lane. At the time, the traffic was heavy. It was about 6.00 pm. An independent witness said that vehicles were travelling in both inbound and outbound directions at 100 km/h.[6] By positioning his vehicle in front of the complainant’s vehicle, the appellant had prevented her from making a right-hand turn.
The complainant gave evidence as follows in relation to the events from the time the appellant got out of his vehicle:[7]
Okay, so you’re saying he just got out of his car and he started walking towards you, is that right?---That’s correct.
All right, where were you at that time?---I sat in my driver’s seat, inside my vehicle, my doors were locked.
Okay, so he started coming towards you, what happened then?---I wound my window down a little bit and he appeared to be very angry. I said to him (inaudible) my son was in the back of the car and he said he didn’t care.
When you say he “appeared to be angry”, what led you to have that view?---Just his body language and the fact that he approached my car.
Can you describe his body language as he’s approaching the car, please?---So, tense, you know he sort of was standing up as if he was bigger than me, like, you know, so he was like – I honestly like, couldn’t tell you, right now.
So as he’s coming towards you, you’re saying you wound your window down a bit?---That’s correct.
All right, why did you do that?---To sort of – just because – so I could, (inaudible) just to go a little bit down and obviously he was coming to say something to me, so –
So how far down did you wind your window?---Probably about an inch, bit more than an inch.
And when you wound your window down, what happened?---He then proceeded to – I mean he actually was quite annoyed and he said that, you know, his words were, “Nobody toots their horn at me” and then he started to just – he appeared to be a little bit [en]raged and then that’s when my window smashed and the glass shattered.
You say the window smashed and the glass shattered, how did it smash, do you know?---He hit it with his hand – with his fist from my recollection and with his hand he punched the windscreen, the window. …
Which window are we talking about then?---My driver’s door.
Okay, so your driver’s door window?---That’s correct.
And when it smashed, what happened?---He – when the glass shattered, some of the glass was inside the car and he sort of went to walk and I grabbed my phone to take – I went to take a photo of his car … because he walked off to drive away – so that I had something for when I spoke to the police, and he turned around and back to tell [me] that I could go right ahead, because he didn’t care if the police had a picture of him.
So after he said that, what’s happened?---He walked away, got in his car and drove off.
The complainant admitted in cross-examination that she had tooted her horn at the appellant because he had been speeding up and slowing down, sitting right behind her vehicle. She felt that she was being intimidated to speed up or move out of his way. She agreed that she had stuck her finger up at the appellant, because of the intimidation she described.[8]
In cross-examination, the complainant clarified her evidence-in-chief in relation to the way in which the appellant broke her driver’s door window. She conceded that the appellant smashed or hit the window with his hand, not with his fist. However, in responding to a further question suggesting that the appellant had not used force, the complainant said:[9]
There was force behind that. And that’s what shattered the window. So (inaudible) why did the window shatter in[side] the car? If he did that like you are saying, and the window, why didn’t it shatter out of the car? … There was glass everywhere within the car. That’s happened because there was force from the outside. I have got pictures to show you of all the shattered glass inside the vehicle.[10]
A well-placed independent witness, Justin Murphy, said that the appellant pulled the driver’s side window back towards him, causing the window to shatter. His evidence was as follows:[11]
… What I noticed was a person, a man was out of his car and at the driver’s side door of the car in front, … the man out of number two car was basically at the driver’s side window of the first car. …
… so I am still in the slip-lane to go into Bowen and I pulled my phone out to take photos of the car in front, of its number-plate and what was happening, as I could see that something – it was escalating. So I took my phone out and started taking photos, because what I could see was – I could see the man pointing and yelling, like basically to the driver’s side and from – at one stage, in a really aggravated state, the man had pulled on the driver’s side window and pulled it back towards him and the tint of the glass had stopped it from shattering everywhere, but it shattered and this window just flopped to the side of the car and I’m fairly certain that’s when I thought things are going to escalate even more, so I switched from photo to video function on my phone and I started recording. And essentially after that, the man opened the driver’s side door and half his body was inside of the – probably a third of his body – his torso was inside the car and I thought there might have been an altercation, but it didn’t look like anyone was grabbing him or anything, it just – he just was half in the car and I thought, honestly that he and this other person in the car were going to have a big fight, so I kept recording.
Could you hear anything that was being said at this stage?---No, I had my windows up and I probably would have been listening to music….
Mr Murphy described the appellant’s gestures as pointing with the index finger of his left hand. He demonstrated the gesture in giving evidence.[12]
The appellant said in evidence that, in the heat of the moment, while the complainant was trying to put her window back up, he “put his hand heavy” and pushed down on the window to stop it going up, causing the window to shatter.[13]
As appears from the extract of her evidence in [6] above, the complainant did not describe any further aggressive conduct on the part of the appellant after the window glass shattered. She said that he walked away, got in his car and drove off.[14] However, Justin Murphy described the appellant opening the driver’s side door of the vehicle and standing, leaning, so that part of his torso was inside the driver’s compartment.[15] Mr Murphy said that the appellant then continued the same gesturing or pointing in which he had (earlier) engaged “through the window”, that is, before the car door was opened.[16]
A photo taken by Mr Murphy shows the complainant’s front driver’s door open, with the appellant apparently standing between the open door and the driver’s compartment leaning forward from the waist. His head, or most of his head, is still outside of the driver’s compartment. It appears that the appellant’s face may still be inside the vehicle, but only just. The brief video footage, taken very shortly after the photo, showed the appellant gesturing with one hand before then walking back to his vehicle.[17] If the evidence of Mr Murphy is accepted, the video footage captures the end of the confrontation between the appellant and the complainant. Nonetheless, the photo is clear evidence that the appellant positioned himself in the space between the inside of the open door and the driver. It can be inferred that, if the complainant were in her normal driving position, the appellant’s body was very close to hers, with no barriers between them.
Prosecutor’s closing address
In his closing address,[18] the prosecutor referred the magistrate to the evidence of Justin Murphy that the appellant opened the door of the complainant’s vehicle and put “up to a third of his body” inside the cabin, where he continued to gesticulate. The prosecutor submitted that the appellant was “in the face” of the complainant as he leaned in towards the cabin of her vehicle. After mentioning the size of the appellant relative to that of the complainant, the prosecutor referred the magistrate to s 187(b) of the Criminal Code and made the following submission:[19]
Now it is quite clear that no blows were struck. And the evidence is that there was no contact actually made. We say that you don’t need contact to constitute assault under the Criminal Code. We say that the threatened application of force does not have to be a direct threat: saying “I am going to punch you in the face” or words to that effect. The mere fact that he is right in her face, inside the cabin of the car, gesticulating the way that he was, we say is such that the victim is in fear of an application of force against her.
At that stage, the magistrate interrupted and referred to the fact that the complainant had not said anything in her evidence about being in fear for her own safety. The prosecutor acknowledged the absence of such evidence, and submitted that the complainant had said that her main concern was for her child in the back seat. He continued:[20]
… She also said that she thought it was going to escalate and that’s why she wound the window up.[21]
Now obviously her evidence was she can’t remember the defendant coming into the cabin, she can’t remember her car door being open. Her evidence is that … the defendant is at the window and she’s trying to wind the window up. Now the reason for that is she thinks it’s going to escalate. That was it.
We say that given the circumstances, there was an apparent threat. Whether that threat was enunciated or not is neither here nor there. The fact that he was acting in that matter in those circumstances with a woman in the situation that she was, strapped to the front seat of her car with a seatbelt on, heavily pregnant, is such that a victim in those circumstances would think that she is about to be assaulted or have the application of force used against her. … We say the court can infer that from the evidence.
Magistrate’s reasons for decision
The magistrate accepted the evidence of Justin Murphy, including as to the way in which the window was broken:[22]
I accept Mr Murphy’s evidence of what he saw, that is, he sees the defendant get out of his car, he sees the defendant act aggressively towards the driver of the vehicle, he sees the defendant pull the window of the driver’s side towards himself with both hands, causing the window to shatter. He then sees the defendant open the door and continue to gesture and yell at the driver. He doesn’t hear what was said, he says his windows were up and he may have had music on. …
The magistrate went on to make a finding that the appellant was aggressive and angry at the time he remonstrated with the complainant. The appellant in evidence had claimed that he was not angry and aggressive. However, the magistrate did not accept his evidence as plausible. After a consideration of the circumstances in which the appellant stopped his vehicle, and the appellant’s account of his reasons for stopping, the magistrate concluded that the appellant would not have stopped if he were not angry and intending to confront the driver of the other vehicle.[23] There is no reason to doubt her Honour’s conclusions.
The magistrate found the appellant guilty of the alleged assault. Her Honour’s reasons were, relevantly, as follows:[24]
… the Prosecution is relying on the threatened application of force to EC, and she clearly is a female and the defendant is clearly a male. …
In relation to the threatened application of force, it’s clear from the evidence, the video evidence, that the door was open. Whether EC opened the door would be very hard to determine.[25] But clearly [the appellant] was leaning in towards Ms C, he was clearly gesturing in an angry manner towards Ms C. And the evidence of Mr Murphy, that he was of the view that something was about to happen, and that’s why he took the video, it is up to this Court to infer that Ms C, by trying to extricate herself from the situation by trying to close the window, she was fearing for her safety.
In those circumstances on the evidence before me, I can be satisfied beyond reasonable doubt that … the defendant [unlawfully assaulted Ms C][26] by the threatened application of force in that his physical presence close to her whilst she was seated and in angry gesturing caused her fear for her safety. And that is the ruling I make, he will be found guilty of [the aggravated assault] charge 4.
Elements of offence of assault
The relevant s 187(b) definition of assault is set out in [2] above. The expression “application of force” is defined broadly in the Criminal Code and includes striking and touching a person.[27] The definition is sufficiently broad to include even a slight application of force. The words “his purpose” in s 187(b) mean the actual application of force. The phrase “to effect his purpose” in s 187(b) means to carry through with the (threatened) application of force.
In order to find the appellant guilty of the charge of assault in the circumstances of the present case, where: (1) the prosecution relied on s 187(b) Criminal Code; (2) the prosecution confined itself to alleging a threatened application of force rather than an attempted application of force; and (3) there was no evidence of any specific threatening words, the magistrate had to be satisfied beyond reasonable doubt of the following elements:
1.The defendant threatened to apply force to the complainant without her consent, such threatened application of force evidenced by the defendant’s bodily movement(s).
2.1The defendant intended to threaten to apply force to the complainant.[28]
2.2Alternatively to 2.1, if the defendant did not intend to threaten to apply force to the complainant, the defendant foresaw that his conduct would possibly result in a threat to apply force to the complainant,[29] and an ordinary person similarly circumstanced and having such foresight would not have proceeded with that conduct.[30]
3.The defendant had an actual or apparent present ability to apply the threatened force.
It appears from the magistrate’s reasons extracted in [18] that her Honour found that the charge of assault was made out by the following matters:
·The complainant’s car door was open.
·The appellant was leaning in towards the complainant.
·The appellant was gesturing in an angry manner towards the complainant while leaning in towards her.
·The appellant was physically close to the complainant.
·The witness Murphy thought something was about to happen.
·By inference from the fact that the complainant tried to extricate herself from the situation, by trying to close her window, the complainant feared for her safety.
·The complainant feared for her safety because of the appellant’s close physical presence and angry gesturing.
Arguments on appeal
Mr Tippett QC contends on behalf of the appellant that the evidence was insufficient to support a finding beyond reasonable doubt that the appellant assaulted the complainant.
One of the appellant’s arguments is that the complainant did not give evidence as to any apprehension on her part that force might be applied to her in some way. That is correct. The magistrate even said in the course of the prosecutor’s submissions that there was no evidence given by the complainant that she was in fear for her own safety.[31] However, the magistrate was probably there referring to direct evidence of fear, because, in giving reasons,[32] her Honour drew an inference that the complainant had been in fear for her safety because she was trying to close the driver’s side window in an attempt to “extricate herself from the situation”.

It is not necessary for me to make a finding as to whether the magistrate erred in drawing the inference referred to in [23], because I have concluded that, as a matter of law, the victim’s fear for her safety was not relevant. The magistrate misdirected herself in relation to the proper interpretation and application of s 187(b) of the Criminal Code by referring to and treating fear on the part of the victim as a necessary element of the offence. The relevant question was not whether the complainant was put in fear but rather whether the defendant had the present ability – actual or apparent – to make good the threatened application of force. I accept the submissions of the respondent in relation to this point of law.[33] Evidence capable of proving the elements of the offence – the relevant ‘bodily movement’ and the ‘actual or apparent present ability’ of a defendant to effect his purpose – may be given by a complainant (victim), or by a witness other than the complainant, and that might even include a defendant.[34]
Mr Tippett QC further contends that the evidence did not support a conclusion that there was a threatened application of force within the meaning of that term in s 187(b). He submits that there was no evidence that the appellant used any threatening words. He submits that the complainant herself did not refer to any threatening words or bodily movements which she thought were “designed to effect the appellant’s purpose of assaulting her”.[35] Mr Tippett’s submission may be correct, but it fails to take account of the evidence of Justin Murphy, extracted in [9] above.
Mr Tippett properly acknowledges that there could be a threatened application of force by bodily movement, rather than by threatening words, but contends that it was not proven beyond reasonable doubt that the appellant’s conduct went beyond remonstrating with the complainant for the perceived shortcomings in her driving. Moreover, it was not proven beyond reasonable doubt that the appellant intended to do anything more than remonstrate with the complainant, or that he foresaw that a threatened application of force was a possible consequence of his conduct.[36] As a result, the magistrate’s guilty finding was an error of law.
Ms Taylor, for the respondent, contends that the evidence as a whole made out a threatened application of force. Ms Taylor submits that the threatened application of force was established by the appellant:
1.Aggressively approaching the complainant’s vehicle, having first prevented the complainant from executing her intended right hand turn.
2.Damaging the driver’s side window.
3.Opening the door of the vehicle (in circumstances where it was not necessary to open the door to continue a conversation).
4.(Whether he opened the door or not) positioning himself on the inside of the door, in very close proximity to the complainant, with some part at least of his body within the vehicle itself.
5.Gesturing and yelling at the complainant (at the same time as he engaged in all of the conduct identified in sub-paragraphs 1-4).
Appeal against finding of guilt – consideration and conclusions
An appeal under s 163 Justices Act is an appeal by way of a rehearing. This Court must decide factual issues based on the transcript of the proceeding and exhibits admitted into evidence in the Court of Summary Jurisdiction, subject to exceptions not here relevant. This Court may give such judgment on appeal as ought to have been given by the Court of Summary Jurisdiction. Further, the appeal is subject to what was said by the plurality of the High Court in Fox v Percy:[37]
[T]he appellate court is obliged to conduct a real review of the trial and … of [the trial] judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.
The evidence before the magistrate established that the appellant was enraged, or at least very angry. The evidence established beyond reasonable doubt that he did all of the things listed in [27]. His actions were hostile, aggressive, and intimidating. He was a big, tall man: 115 kilograms and six foot three or four.[38] It is a matter of clear inference, and in my mind there is no doubt that the appellant intended to be hostile, aggressive, and intimidating. That intention was manifested in everything he did. His own evidence, in trying to explain how he happened to break the complainant’s driver’s side window, that he was pushing down forcefully to stop the complainant winding her window up, was significant. It established that he was trying to physically maintain the situation in which the complainant was captive. He was determined to persist with his conduct. He was not prepared to allow the complainant to remove herself from having to listen to his enraged utterances. To the extent that the appellant claimed in his evidence that he and the complainant had been engaged in a slanging match,[39] or some kind of consensual yelling at one another,[40] it is clear even on the appellant’s own evidence that the complainant was no longer consenting (if indeed she had earlier consented) from the time she attempted to close her window.
With reference to the elements set out in [20] above, the evidence established beyond reasonable doubt that the defendant intentionally threatened to apply force to the complainant without her consent. Such threatened application of force was evidenced by the defendant’s bodily movement(s) from the time he alighted from his vehicle, and did each of the acts listed in [27]. The force threatened was, at least, physical touching, if not pushing or striking. It is significant that the witness Justin Murphy, at several distinct stages of his observations of the appellant’s aggressive actions, thought that things would escalate and, at one stage, thought that there would be an altercation or perhaps even a “big fight”.[41] That was based on his observations of the conduct of the appellant only. He could not see the “other person” (the complainant).
In my opinion, the point in time at which the offence of assault was ‘complete’ was when the appellant, having broken the complainant’s driver’s side window and positioned himself in the space between the open door and the body of the vehicle, then went partly into the driver’s compartment, gesturing and yelling. There is no doubt that he then had the actual or apparent present ability to apply the threatened force, given his most extraordinary intrusion into the complainant’s personal space and the absence of any physical barrier between them.
Notwithstanding the error of law identified in [24] above, the appellant has not established that the evidence was insufficient to support a finding beyond reasonable doubt that the appellant assaulted the complainant. I therefore reject the appeal against the guilty finding on the aggravated assault charge. Pursuant to s 177(2)(c) Justices Act, I affirm the finding of guilt. To the extent it may be necessary, on account of the error identified in [24], I am satisfied that no or no substantial miscarriage of justice has actually occurred, and I would therefore dismiss the appeal against the finding of guilt, pursuant to s 177(2)(f) Justices Act.
Appeal against recording convictions
Although he entered a plea of not guilty to the aggravated assault charge, the appellant pleaded guilty[42] to a property damage charge: that he intentionally or recklessly caused damage to the driver’s side window of the complainant’s vehicle.[43]
The appellant’s counsel told the magistrate that the defendant admitted to damaging the car window, but maintained that he put his hand on the window and it shattered. The magistrate in response stated that she had accepted Mr Murphy’s evidence and had found (contrary to counsel’s submission) that the appellant pulled on the window.[44]
Victim impact
The effect of the appellant’s offending on the complainant was significant, as a brief review of the evidence at the hearing demonstrates. After the appellant left the scene, the complainant got out of her car. She was “just shaking”. She was unable to continue driving. She needed to have her partner turn her car out of the slip lane and off the main road.[45] Constable D’Antoine, who attended the scene, said that the complainant was in shock and distressed.[46] Constable Threlfo said that the complainant was very distraught and thought that she may have been in shock.[47] She had minor scratches or lacerations on her legs from the impact of glass shards. Police called St John Ambulance to attend.
The appellant’s offending conduct had an immediate physical and mental impact on the complainant. In her victim impact statement, she said that she was 32 weeks pregnant at the time of the incident and went into shock and began having pains at her stomach. She was taken from the Royal Darwin Hospital Emergency Department to the Delivery Suite so that her baby could be monitored. She suffered some minor bruising and bleeding as a result of the glass shards to both calves. As a result of the incident, she felt under stress and experienced anxiety and emotional strain both at home and at the workplace. This adversely affected her sleep and caused strain in her relationship with her partner.
The appellant’s background, character and matters in mitigation
The appellant was born in Darwin on 19 September 1980. He was 34 years old at the time of sentencing. The magistrate was informed that he was married, with two young children, one four years old and the other six months old. He had lived his whole life in the Territory, apart from when he attended Brisbane Boys College. From the time he left school, at the age of 16, he had worked in his family’s business of transport, civil works and mining. He had also been involved in the management of a machinery rental company, and another company which manufactured trailers and equipment.
The appellant’s record of prior offending disclosed non-conviction dispositions for driving without due care and driving without a licence (as a 15-year-old). There were some other juvenile matters which have no relevance to the offending the subject of the present appeal.
The appellant’s counsel tendered two character references to the magistrate. Both were addressed, “To whom it may concern”, and neither made mention of the criminal proceedings against the appellant. However, the appellant’s counsel told the magistrate that both referees knew about the charges. One referee wrote that he knew the appellant and his family personally; that the appellant was an honest hard-working man with a high focus on family values, and that he considered him a lifelong friend. Another referee knew the appellant as a businessman who ran a branch of the Ostojic family business in Alice Springs, and who later became a very good friend. He wrote that the appellant’s character was “beyond reproach”.
The appellant’s counsel informed the magistrate that the appellant had reimbursed the complainant’s insurer, AAMI, an amount of $1,524.91 for the costs of repairs to the vehicle paid by the insurer. Documents tendered as part of Exhibit P3 indicated that AAMI formally demanded that amount on 18 December 2014, and received the monies on 16 January 2015. The magistrate was also informed that the appellant had paid the complainant’s $450 excess. The prosecutor confirmed that the appellant had made these payments.
Counsel for the appellant told the magistrate that the appellant was not proud of his conduct and that he had told Police officers that he was sorry about the incident. Counsel then submitted to the magistrate that, in relation to count 3 (the property damage charge), the appellant should be convicted and fined.[48]
The prosecutor at that stage told the magistrate that if she were to impose a conviction, then a mandatory sentence of imprisonment applied; alternatively, that a community work order had to be imposed.[49] The prosecutor then made a submission emphasising general deterrence for what he characterised as a ‘road-rage’ offence, aggravated by the fact that the appellant continued with his conduct even after he realised that the driver of the other vehicle (the complainant) was a female. The prosecutor submitted that the court could properly impose a conviction for that matter.
Counsel for the appellant asked the magistrate to have the appellant assessed for community work, and the matter was adjourned for two days.
When proceedings resumed on 4 March 2015, the appellant’s counsel made a further submission to the magistrate, in which she asked that convictions not be recorded for either of the two charges. Counsel submitted that convictions would severely impact upon the appellant’s employment, in that he travelled to the United States three times a year (counsel later said that such trips were “for business and leisure”[50]), and that convictions might affect his visa applications. Counsel also submitted that the appellant donated money and attended charity functions for the community. Mention was made of Beyond Blue and the Breast Cancer Council. The appellant had “got his trucks [painted] with pink ribbons on them” and was about to have the Beyond Blue symbol put on one of his trucks. Counsel submitted that the assault was an isolated incident, on a “lesser scale”. In relation to the property damage charge, counsel emphasised that full restitution had been made, and that the appellant had indicated an early plea. The appellant was said to be a hard-working and reliable man, who was contributing to society.
The prosecutor in response acknowledged that the appellant should be treated as a person of prior good character, but submitted that that was not enough to constitute “exceptional circumstances”. He submitted that general deterrence loomed large in relation to a road rage incident such as that committed by the appellant. Not only did he not desist when he realised the complainant was a female but he leaned inside her car and intimidated, harassed and abused her.
In her sentencing remarks, the magistrate indicated the need to send a strong message that the appellant’s behaviour was totally unacceptable.[51] With respect to s 8 Sentencing Act, the magistrate expressly referred to the appellant’s prior good character, but also reminded the appellant that he had harassed and intimidated a pregnant woman. These were clearly “circumstances of the case”, to which the magistrate was required and properly entitled to have regard by s 8 Sentencing Act. Her Honour stated that the nature and circumstances of the offending, and the effect on the victim, were such that convictions ought to be recorded on both charges. For the property damage charge, the appellant was sentenced to 56 hours of community work, to be completed within three months. For the aggravated assault charge, the magistrate convicted the appellant and fined him $3,000, plus the victim’s levy of $150. Her Honour remarked that she had seriously considered sentencing the appellant to a term of imprisonment, but had ultimately decided that a fine was appropriate because of his standing in the community and his continued good works.
Arguments on appeal
Mr Tippett QC contends that the magistrate erred in the application of s 8 Sentencing Act in imposing a conviction “where a proper application of the section in the circumstances of the case should have led to a conviction not being recorded.” Mr Tippett, in written submissions, refers to the following matters:
·the appellant immediately went to police to report the incident;
·the appellant made full restitution of all damage, including insurance excess;
·the appellant is a person of positive good character;
·the appellant had not been in trouble as an adult;
·the incident was significantly out of character;
·the appellant had been in gainful employment since the age of 16;
·the appellant had pleaded guilty at the first available opportunity (in relation to the property damage offence).
Section 8 Sentencing Act reads as follows:
8 Conviction or non-conviction
(1)In deciding whether or not to record a conviction, a court must have regard to the circumstances of the case including:
(a)the character, antecedents, age, health or mental condition of the offender; and
(b)the extent, if any, to which the offence is of a trivial nature; and
(c)the extent, if any, to which the offence was committed under extenuating circumstances.
The sentencing court was required to consider all relevant circumstances, as well as the specified and enumerated factors in s 8(1).[52]
The recording of a conviction is a component of the sentence. In Carnese v The Queen[53] the Court of Criminal Appeal approved the statement of Cox J in R v McInerney[54] that “a conviction is a formal and solemn act marking the court’s, and society’s, disapproval of a defendant’s wrongdoing.” In Hales v Adams,[55] Southwood J considered the factors under s 8 of the Sentencing Act relevant to the exercise of the judicial discretion as to whether or not to record a conviction against an adult offender. His Honour said:-
“It is a component of the sentence and is to be given weight in determining whether or not the sentence is proportionate to the offence. The more serious or blatant an offence, the less proportionate it is for the Court of Summary Jurisdiction to decline to record a conviction. Mature age offenders who have led previously blameless lives may benefit from an exercise of the discretion not to record a conviction. The discretion may also be exercised in an offender’s favour where the offender has no previous convictions, or where the offending related to ill health or where it would, in itself, be a significant additional penalty for a first offender. On the other hand, the recording of a conviction may be necessary where the offender is of mature age and deterrence is being given weight, especially in relation to breaches of regulatory or social legislation. A useful summary of these considerations may be found in RG Fox and A Freiberg, “Sentencing State and Federal Law in Victoria” 2nd Ed, at 190 – 193.”
In the present case, the appellant was a 34 year old male. Notwithstanding that the magistrate accepted that the appellant would “adjust” his on-road behaviour in future,[56] punishment, denunciation and general deterrence remained very important sentencing considerations. As mentioned in [46], the magistrate emphasized general deterrence: the need to send a strong message.
The principles applicable to an appeal against sentence are well known. The court will only interfere with a magistrate’s sentencing discretion if it is satisfied that the sentence was manifestly excessive, for example: Mace v Hales,[57] or that error in the exercise of the sentencing discretion is shown, such as acting on a wrong principle, or misunderstanding or wrongly assessing some salient feature of the evidence: Cranssen v R.[58] The presumption is that there is no error: Midjumbani v Moore. [59] In my judgment, the appellant has not established error in the exercise of the magistrate’s sentencing discretion, and has failed to show that the recording of convictions made the sentence(s) manifestly excessive. This part of the appeal must therefore fail.
Conclusion
The appeal is dismissed.
I will hear the parties as to consequential orders, including an extension of time for completion of the 56 hours of community work ordered by the magistrate.[60]
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[1] Contrary to s 188(2) Criminal Code.

[2] The relevant circumstance of aggravation under s 188(2)(d) is that the person assaulted “is unable because of infirmity, age, physique, situation or other disability effectually to defend himself or to retaliate ... ”.

[3] Evidence of appellant, transcript 2/3/2015 p 36.5.

[4] Evidence of appellant, transcript 2/3/2015 p 40.8.

[5] Exhibit P1 2/3/2015.

[6] Evidence of Justin Murphy, transcript 2/3/2015 p 33.5.

[7] Transcript 2/3/2015 p 7.5 - p 8.6.

[8] Transcript 2/3/2015 p 10.1.

[9] Transcript 2/3/2015 p 11.5.

[10] The photos referred to were not exhibits in the prosecution of the appellant.

[11] Transcript 2/3/2015 p 31.5.

[12] Transcript 2/3/2015 p 31.5.

[13] Transcript 2/3/2015 p 36.8.

[14] Transcript 2/3/2015 p 8.6.

[15] Transcript 2/3/2015 p 31.5 – 32.

[16] Transcript 2/3/2015 p 31.9 – 32.1.

[17] Both the photo and the video footage are contained in Exhibit P2, USB stick tendered through Justin Murphy at T 34.

[18] Transcript 2/3/2015 p 50.4.

[19] Transcript 2/3/2015 p 50.9.

[20] Transcript 2/3/2015 p 51.4.

[21] The statement in the prosecutor’s submission, that the complainant had said that she tried to wind the window up, was wrong. The complainant did not give evidence about attempting to wind up her window. Rather, it was the appellant who said that he put his “hand heavy” to stop the window going back up, as the complainant went to put the window back up - transcript 2/3/2015 p 36.8. The complainant gave evidence in re-examination (T12.1) that she did not try to wind the window up, but “left it”. It is likely that she was there referring to the situation after the window had been damaged. In any event, the misattribution of the evidence about attempting to wind up the window does not ultimately affect my determination of the issues argued on appeal.

[22] Transcript 2/3/2015 p 55.6.

[23] Transcript 2/3/2015 p 56.2.

[24] Transcript 2/3/2015 p 57.4.

[25] The magistrate seems here to have overlooked that, a short while earlier, she had accepted the evidence of Mr Murphy that the defendant had opened the car door and then continued to gesture and yell at the driver – see Transcript p 55.6 extracted in [16] above.

[26] The transcript reads “inaudible” for the words in square brackets, but I have re-produced the actual words used by the magistrate.

[27] Criminal Code s 1 definition of "application of force": application of force and like terms include striking, touching, moving and the application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing if applied to such a degree as to cause injury or personal discomfort. The requirement “to such a degree as to cause injury or personal discomfort” relates to the “application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing”, and not to striking, touching or moving: Davis v Bennett (2003) 13 NTLR 1.

[28] Criminal Code s 31(1).

[29] Criminal Code s 31(2) is prefaced: "A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and the particular act, omission or event occurs ... ".

[30] Criminal Code s 31(1), (2).

[31] Transcript 2/3/2015 p 51.2.

[32] Transcript 2/3/2015 p 51.4, 57.7.

[33] Respondent’s Outline of Submissions par 13.

[34] The respondent's Outline of Submissions par 13, refers to Bronitt and McSherry Principles of Criminal Law (Law Book Co., 3^rd ed 2010) at 566. There (at 566.3) the learned authors suggest that, in relation to “apparent present ability”, the emphasis on the victim's apprehension is similar as for the common law: “The victim must believe that the accused has an ability to apply force.” In my view, however, the apparent ability to apply force to is not determined by evidence of the victim's belief, but rather by an assessment, on the basis of the evidence of the victim and/or other relevant witnesses, of the defendant's ability to apply force. A victim may not have seen the lead-up to an assault. There are many possible circumstances in which the “present ability” of a defendant may not be apparent to the victim but apparent to other persons present at the scene.

[35] Appellant's written Outline of Argument par 4 and par 5.

[36] Appellant's written Outline of Argument par 9.

[37] (2003) 214 CLR 118 at [25].

[38] Transcript 2/3/2015 p 42.7.

[39] Transcript 2/3/2015 p 42.5.

[40] Transcript 2/3/2015 p 36.8.

[41] Transcript 2/3/2015 p 31.6.

[42] Transcript 2/3/2015 p 57.2.

[43] Contrary to s 241(1) Criminal Code.

[44] Transcript 2/3/2015 p 59.8.

[45] Transcript 2/3/2015 p 8.7.

[46] Transcript 2/3/2015 p 19.8.

[47] Transcript 2/3/2015 p 22.4.

[48] Transcript 2/3/2015 p 60.5

[49] The prosecutor was correct. Pursuant to s 3(1) Sentencing Act, an ‘aggravated property offence’ includes an offence against s 241 Criminal Code: intentionally or recklessly causing damage to property. Under s 78B(2), a court which records a conviction for an aggravated property offence must order the offender to serve a term of imprisonment, or order the offender to participate in an approved project under a community work order, unless there are exceptional circumstances in relation to the offence or the offender.

[50] Transcript 4/3/2015 p 6.5.

[51] Transcript 4/3/2015 p 7.6.

[52] R v Peach (2003) 141 A Crim R 437 at [11].

[53] [2009] NTCCA 8 at [16].

[54] (1986) 42 SASR 111 at 124.

[55] [2005] NTSC 86.

[56] Transcript 4/3/2015 p 6.5.

[57] [2002] NTSC 15.

[58] (1936) 55 CLR 509 at 519 - 520.

[59] [2009] NTSC 27.

[60] Sentencing Act s 34(1).