Rossi v Carter
[2000] WASCA 321
•2 NOVEMBER 2000
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 the habit of practising his golf swing. It was the prosecution case that the applicant became angry at being pressed by Garry Raffaelli and he took up a wooden‑headed driver, walked over to the vehicle in which the complainant was seated and swung the club at the face of the complainant, stopping centimetres short of striking him in the face. It was Garry Raffaelli's evidence that the shaft of the club actually struck the window frame. The complainant's evidence was:
"I thought he was going to come and tell me something. Instead he swing the club - - I was sitting in the ute and he swing the club right to my face."
Asked to demonstrate how close the club came to his face, he indicated a distance which the Magistrate announced to be "about 2 or 3 centimetres" - an estimate which was not challenged by anyone. The complainant did not say that any part of the club struck any part of the vehicle. The effect of his evidence was that the applicant deliberately stopped his swing, not that the swing was stopped by striking the vehicle.
Both the complainant and Garry Raffaelli gave evidence that when the applicant swung the club at the complainant the applicant demanded that the complainant tell Garry Raffaelli, in effect, to stop pestering him.
The applicant's case was that there had been a series of altercations between himself and Garry Raffaelli prior to this date and that on this date, while he was practising his golf swing, Garry Raffaelli approached him and began to abuse him. His reaction to this was to go to the vehicle in which the complainant was seated and ask the complainant: "Why don't you stop your son doing this because something's going to happen here". His evidence was that at that time he was still holding the golf club, but did not swing it or threaten the complainant with it.
The learned Magistrate found that the applicant did swing the golf club in the manner described by the complainant and Garry Raffaelli: the swing was aimed at the complainant's head as he was seated in the car and stopped just centimetres short of his face. The learned Magistrate accepted Garry Raffaelli's evidence that, at the end of its swing, the club struck some part of the vehicle, probably the window frame.
In coming to this conclusion, his Worship expressly accepted both the complainant and Garry Raffaelli as witnesses of truth. He did not consider the discrepancy in their evidence as to whether the golf club struck the vehicle as of any consequence or as reflecting upon the credibility of either of them. He thought the complainant was probably more concerned with whether the club was going to strike him in the face than whether it struck anything else. He said (AB 54 ‑ 55):
"I found the evidence particularly of the complainant but also to some considerable extent his son to be very clear and cogent as to the defendant's behaviour at the critical few seconds of the incident and indeed as to other parts of his behaviour. The complainant himself, in my view, was a particularly impressive witness. He tended to understate what had happened.
…
The incident undoubtedly happened very quickly and I - - whilst Mr Kaminickas is perfectly correct in raising the apparent inconsistency between the son's evidence and the father's evidence, that … the father didn't mention the club striking the window of the car, such an omission is not in my view indicative of untruth but is simply indicative of a very alarmed person not noticing something that was after all of secondary importance to him, the primary importance being that the head of the club was likely to hit him in the face or the head or some part of his head."
The learned Magistrate found that the applicant had been greatly angered by the behaviour of Garry Raffaelli and it was in that frame of mind that he approached the complainant and swung the club at him in the way that he did.
In my opinion, these findings were plainly open on the evidence and I am not persuaded that his Worship made any error in arriving at them.
On behalf of the applicant, it was submitted that the evidence did not disclose the offence of common assault, as charged. The ingredients of the offence are set out in s 222 of the Criminal Code. That section defines assaults in the following relevant terms:
"A person who … by any bodily act or gesture … threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault."
It is clear that the prosecution case was that the applicant had, by bodily gesture, threatened to apply force to the complainant. That being so, it was necessary for the prosecution to prove an intention on the part of the applicant either to use force or to create apprehension of the use of force on the part of the complainant: Hall v Fonceca[1983] WAR 309, per Smith and Kennedy JJ at 313 ‑ 314.
In my opinion, the learned Magistrate gave full and proper consideration to the need for proof of these matters. In his judgment at p 53 of the transcript (AB 55) the learned Magistrate said:
"There was also the defendant's admitted comment that he said to the complainant that he should stop his son harassing him or something might happen. And that of course whilst not conclusive is certainly consistent with an intention to make a threat of a physical action … it certainly fits the picture that has been drawn by the complainant and his son of a very angry defendant at that particular time."
Later on the same page, he said:
"The implication and the only reasonable implication to be drawn from the prosecution evidence is that the defendant was so angry at the importuning - - constant importuning of the son for repayment of the money which he apparently didn't consider was owing, that he lost his temper and took a swing at the father.
Anger may not be a rational motive, but it is an explanation for the conduct … it is open on the evidence that he would be angry enough to swing at a person who did not present the same threat as the son or that he simply just lost his temper at that moment and swung the club to a greater or lesser degree to reinforce his attitude, the threat that: something will be done if you don't stop your son doing this."
When the learned Magistrate's reasons are read as a whole, they clearly amount to a finding that the applicant swung the golf club at the head of the complainant to give him a fright. That amounts to a finding of "an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted", which is how the requirement is expressed in Hall v Fonceca (supra).
I would dismiss the appeal against conviction.
The applicant was fined $400. There is an appeal against that penalty. It is not contended that, if a fine was appropriate, the fine was excessive. It is submitted on behalf of the applicant that no fine should have been imposed.
The applicant is undoubtedly a person of good antecedents. The applicant's behaviour was the culmination of a series of incidents which might fairly be described as calculated to at least annoy the applicant. That, together with the applicant's generally good character and absence of prior convictions, is the main basis for the submission on his behalf that no fine should have been imposed, but that instead a spent conviction order should have been made pursuant to s 45(1) of the Sentencing Act.
It would appear that the applicant does meet the criteria set out in s 45 in that the applicant is unlikely to commit such an offence as this again and is of previous good character. However, the fact that the applicant may meet the criteria set out in s 45 does not automatically entitle him to the benefit of a spent conviction order. The power to make such an order is a discretionary one and there is authority for the proposition that it should be sparingly exercised and only in clear cases where, for cogent reasons, its exercise is seen as desirable: R v Tognini & McGuire [2000] WASCA 31, par [27].
In this case, I am not persuaded that a proper exercise of discretion required that a spent conviction order be made. There was bad blood between these people, but really between the applicant and Garry Raffaelli. The complainant was only peripherally involved. He was not acting in a provocative manner. On the evidence, he had had no words with the applicant and had done nothing to provoke the applicant. The swinging of the club at the face of the complainant was a dangerous act. On the findings of the learned Magistrate, the club came very close to striking the complainant in the face. The incident obviously caused severe fright to the complainant, sufficient to cause him to report the incident to police. It was a sufficiently belligerent act to cause Garry Raffaelli to run to the defence of his father, grab the golf club and break it over his knee. All in all, it was quite a bad incident and, in my opinion, it is impossible to say that the penalty imposed was inappropriate or excessive.
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