Rossi v Carter - [2000] WASCA 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: ROSSI -v- CARTER [2000] WASCA 321

CORAM: ANDERSON J

HEARD: 26 SEPTEMBER 2000

DELIVERED : 2 NOVEMBER 2000

FILE NO/S: SJA 1046 of 2000

BETWEEN: ROCCO ROSSI
Applicant
AND
PHILLIP JOHN CARTER
Respondent

Catchwords:

Criminal law - Assault - Appeal against conviction - Evidence - Proof of intention to create apprehension - Findings of Magistrate open on the evidence

Criminal law - Assault - Threat of force - Golf club swung at complainant - Appeal against sentence - Magistrate refusing to make spent conviction order - Decision upheld - Discretion to be sparingly exercised - Fine of $400 not inappropriate or excessive

Legislation:

Criminal Code (WA) 1913, s 222, s 313

Sentencing Act (WA) 1995, s 45(1)

Result:

Appeal against conviction dismissed
Appeal against sentence dismissed

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Mr F Sunderland

Solicitors:

Applicant: Beau Hanbury
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Hall v Fonceca [1983] WAR 309
R v Tognini & McGuire [2000] WASCA 31

Case(s) also cited:

Matsebula v Vandeklashorst [2000] WASCA 141
Mercer v Scantlebury, unreported; SCt of WA; Library No 980414; 23 July 1998
Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997
R v Grein [1998] WAR 178
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Shepherd v The Queen (1990) 170 CLR 573

ANDERSON J: The applicant was charged in the Court of Petty Sessions at Fremantle that on 15 June 1999 at Jandakot he unlawfully assaulted one Terry Leo Raffaelli contrary to s 313 of the Criminal Code. That section provides:
"313. Common assaults
(1)Any person who unlawfully assaults another is guilty of a simple offence and is liable to imprisonment for 18 months or a fine of $6,000."
To this charge, the applicant pleaded not guilty and on 11 February 2000 he came before Mr P S Michelides SM for trial.
The case against the applicant was that on the day in question he was being spoken to by the applicant's son, Garry Raffaelli, at premises where both the applicant and the complainant had hitherto conducted their respective businesses. There had been a falling‑out between the applicant and the complainant and the complainant and Garry Raffaelli were in the course of removing their plant and equipment from the premises. Garry Raffaelli was pressing the applicant for payment of money which he claimed the applicant owed either him or his father. In evidence he called the money "wages", but it is not altogether clear whether he was making a claim for unpaid wages or for moneys allegedly due for subcontract work done by the Raffaellis for the applicant. According to the complainant and Garry Raffaelli, the applicant kept walking away from Garry Raffaelli. According to the latter, the applicant disputed the debt and refused to make any payment. The applicant owned golf clubs and had them at the premises where he was in…

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 Rossi v Carter

Details

AGLC: Rossi v Carter [2000] WASCA 321
Case: [2000] WASCA 321
Decision Date: 2 NOVEMBER 2000

CaseChat Overview and Summary

Rossi appealed his conviction and sentence for assault against Carter, arguing that the evidence did not support the finding that he intended to create apprehension of imminent unlawful violence. The case was heard in the Court of Appeal. The legal issues before the court were whether the evidence was sufficient to establish that Rossi intended to create apprehension of imminent unlawful violence and whether the magistrate's refusal to make a spent conviction order was appropriate.

The court considered the evidence and found that the magistrate was entitled to conclude that Rossi intended to create apprehension of imminent unlawful violence by swinging a golf club at Carter. The court held that the evidence was sufficient to support the finding that Rossi intended to create apprehension of imminent unlawful violence. The court also found that the magistrate's refusal to make a spent conviction order was appropriate, as the discretion to do so should be sparingly exercised. The court held that the fine of $400 was not inappropriate or excessive.

The court upheld the conviction and sentence. The court held that the evidence was sufficient to establish that Rossi intended to create apprehension of imminent unlawful violence, and that the magistrate's refusal to make a spent conviction order was appropriate. The court found that the fine of $400 was not inappropriate or excessive, and the appeal was dismissed.

Orders