Tasmania v Gladwin - [2016] TASSC 64

[2016] TASSC 64

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Gladwin [2016] TASSC 64

PARTIES:  STATE OF TASMANIA
  v
  GLADWIN, Ross Richard

FILE NO:  195/2016
DELIVERED ON:  9 December 2016
DELIVERED AT:  Hobart
HEARING DATES:  16, 28 November 2016
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal law – Sentence – Sentencing orders – Custodial orders – Mandatory imprisonment order.
Sentencing Act1997 (Tas), s 16A.
R v Olbrich [1999] HCA 54, 199 CLR 270, applied.
R v De Simoni (1980) 147 CLR 383; Walsh v The Queen (1996) 6 Tas R 70; Lovegrove v The Queen [1961] Tas SR 106; Coates v The Queen [2001] TASSC 141; R v Perks (1986) 41 SASR 335; Swan v The Queen [2016] NSWCCA 79; Wilson v The Queen (1992) 174 CLR 313; Fleming v Hutchinson (1991) 66 ALJR 211, referred to.
Aust Dig Criminal Law [3348]

REPRESENTATION:

Counsel:
             State:  J Shapiro
             Defendant:  S G Wright
Solicitors:
             State:  Director of Public Prosecutions
             Defendant:  Stephen G Wright

Judgment Number: [2016] TASSC 64
Number of paragraphs: 40

Serial No 64/2016
File No 195/2016

STATE OF TASMANIA v ROSS RICHARD GLADWIN

REASONS FOR JUDGMENT BRETT J

9 December 2016

The defendant has pleaded guilty to one count of assault. He pleaded guilty to that charge in the Magistrates Court and has been committed to this Court for sentence. During the course of the sentencing proceedings, the following issues arose:
(a) A dispute with respect to the factual basis of sentencing.
(b) The person assaulted was a police officer who was on duty at the time. She suffered some bodily injury. The question therefore arises as to whether the mandatory sentencing provisions of s 16A of the Sentencing Act 1997 are applicable and, if so, the effect of the application of that section on sentence.

The factual dispute

The assault occurred during the evening of 25 April 2016. It is common ground that the police officer who was assaulted, Constable Deanna Rawlings, and two other police officers, Constable Duhuit and Acting Sergeant Walker, attended a house at 25 Acacia Drive, Romain, at the request of the home owner, Janelle Bramich. Ms Bramich and the defendant, who were in a relationship at the time, had been consuming alcohol throughout the course of the afternoon and had become involved in an argument. Police had been called to the house earlier that day. Ms Bramich called police in the evening because she wanted them to remove the defendant from her home. It is common ground that when police arrived, the defendant was seated on a couch in the lounge room of the house.
What followed next was the subject of dispute. In order to resolve the dispute, I heard evidence from the three police officers and the defendant. Constable Rawlings' evidence was that when she arrived, she commenced negotiations with the defendant with the intention of having him leave the house voluntarily. During the course of the conversation, the defendant got up from the couch and attacked her by striking her several times with a large rubber sex toy. This attack included some blows to her head. She initially responded by deploying OC spray and then attempted to restrain the defendant by getting behind him and grabbing him by the wrists. As she attempted to restrain him in this way, the defendant bent forward and struck her on the legs with the toy. He did so by reaching through his legs. He then grabbed her by the ankles and lifted her, thereby causing her to fall backwards. As she fell, she hit her head on a wall heater. She subsequently discovered that she had fractured her left little finger in the fall. Shortly after she fell to the ground, she felt the defendant fall on top of her. The evidence established that this occurred when he was taken to the ground by the other two officers.
Constable Rawlings' evidence was largely corroborated by the evidence of the other police officers. Constable Duhuit's evidence was that she and Constable Rawlings entered the house when the police arrived, but Acting Sergeant Walker waited outside. Constable Duhuit saw the defendant get up from the couch as Constable Rawlings was speaking to him and start to hit her with the sex toy. After a warning, Constable Rawlings deployed OC spray. Constable Duhuit then left the room to seek assistance from Acting Sergeant Walker. When she and Sergeant Walker arrived back in the room, Constable Duhuit saw the defendant crouching down in front of Constable Rawlings and it looked to her as if he was trying to grab Constable Rawlings around the legs. Constable Duhuit then saw the defendant stand up, holding onto Constable Rawlings' legs, and Constable Rawlings fall to the ground as a result. Constable Duhuit saw Constable Rawlings hit her head "very hard" on the wall heater as she fell. Constable Duhuit and Acting Sergeant Walker then entered the room and took the defendant to the ground. Acting Sergeant Walker confirmed this evidence from the time that he entered the house. He confirmed also that when he took the defendant to the ground, the defendant landed on top of Constable Rawlings.
The defendant, in his evidence, said that when police arrived, he was extremely upset as a result of an argument he had had with Ms Bramich. He said that he was trying to keep his temper under control, and described how he imagined locking himself "in a bubble and ignoring everything else around" him. I took this to be a technique that he utilises to control his anger. The defendant said that as he was doing this, he saw three pairs of blue clad legs. They were intruding into the "bubble". He made no effort to identify them. His evidence was "I just saw the blue legs, exploded and just stood up and lashed out". He did so by grabbing the sex toy as he got up from the couch and used it to strike the closest person. He said that he was aiming for that person's groin. As he got to his feet, his body weight came onto his left side and his left ankle, which is weak because of a prior injury, gave way. This caused him to fall to the ground. He disputes that he took Constable Rawlings to the ground, although he conceded that it was possible that he did so. However, he also recalls the OC spray being deployed when he was on the floor, after he had fallen. He agreed with me that, on his version, it would have been impossible for Constable Rawlings to have fallen to the ground when he did, if it is true that the OC spray was deployed by her at him after he had fallen to the ground.
The prosecution version of the assault is more serious than the assault conceded by the defendant. Accordingly, I should only sentence the defendant on the basis of the prosecution version if I am satisfied of those facts beyond reasonable doubt (see R v Olbrich [1999] HCA 54, 199 CLR 270).
I am satisfied beyond reasonable doubt that the prosecution version of these events, as testified by the police officers, is correct. I am so satisfied for the following reasons:
(a) I was impressed with the evidence of each police officer. My impression of their evidence was that each was doing his or her best to describe the events as they actually occurred. Constable Rawlings' evidence was corroborated by the evidence of the other officers. Each version was logical, consistent with the other police evidence, and consistent with the objective facts, including the injuries to Constable Rawlings.
(b) I was less impressed with the evidence of the defendant. He gave his evidence in an emotive and somewhat confusing manner. I gained the clear impression he had reconstructed the events, rather than drawing on an actual memory of them. He conceded that he was affected by alcohol when this incident occurred. He estimated his level of intoxication at 4 or 5 on a scale of 10, but he also conceded that he had been drinking since lunchtime. The relevant events occurred in the early evening. On any view of it, he had been drinking for a long time, and is likely to have been more affected by the alcohol than he was prepared to concede.
(c) The evidence of the defendant is simply inconsistent with the objective facts. As already noted, on his evidence, Constable Rawlings did not fall to the ground and there was no opportunity for her to sustain injury. However, the evidence establishes that she did sustain injuries of the nature described by her. Constable Rawlings said that as she fell, she put her hand out to stop her fall. Her hand was hurting, and when she looked at it later, she saw that her left little finger was sitting at a 90 degree angle to her hand. After the incident, she attended the North West Regional Hospital. A report from the hospital was placed in evidence. The report confirms that it was established by x-ray that she had suffered a fracture of the proximal phalanx (small finger bone closest to the hand), with ulna deviation of the distal part of the finger. The report notes that Constable Rawlings complained of striking her head during the course of the incident but there was no examination of her head or spine on that presentation. However, over subsequent weeks, she attended the occupational therapist at the hospital on a number of occasions complaining of "mild amnesia, brain fog, word finding difficulty and headaches". These symptoms subsided after a few weeks. The report notes that the head injury described is consistent with hitting the back of her head. Amnesia, in particular, could have occurred without loss of consciousness at the scene.
(d) If the defendant had gone to the ground accidentally as he claimed, then there would have been no need for the other officers to take him to ground, and no need for Acting Sergeant Walker to be called into the house. There would also have been no need for the deployment of OC spray. However, the defendant's evidence was that spray was deployed as he was falling to the ground and this deployment continued while he was on the ground. He said the other police officers pinned him down after he fell. This action, on the defendant's version, would have been unnecessary and improbable.
I reject the defendant's version of these events. I accept as truthful the version of events given by the police officers. I am satisfied beyond reasonable doubt that the assault occurred as described by Constable Rawlings. The defendant will be sentenced on that factual basis.

Mandatory imprisonment

Section 16A of the Sentencing Act provides for mandatory imprisonment in circumstances where a police officer suffers serious bodily harm caused by, or arising from an offence committed in relation to a police officer while the police officer was on duty. The full text of the section is as follows:
"(1) Despite section 7, if —
(a) a person is convicted of an offence, against a provision of an Act, committed in relation to a police officer while the police officer was on duty; and
(b) the police officer suffered serious bodily harm caused by, or arising from, the offence —
a court that convicts the person, and a court that imposes a sentence upon the conviction of the person, in respect of the offence must, unless there are exceptional circumstances, order the person to serve in respect of the offence a term of imprisonment of not less than 6 months.
(2) For the purposes of this section, an offence is to be taken to be committed in relation to a police officer only if the person who committed the offence knows, or ought reasonably be expected to know, that bodily harm to a police officer may be caused by, or arise from, the offence.
(3) Subsection (1) applies in relation to an offence against a provision of an Act even if the Act —
(a) does not indicate that the offence is punishable by imprisonment; or
(b) indicates that the offence is punishable by imprisonment for a term of less than 6 months —
but, in either such case, the term of imprisonment that is, in accordance with subsection (1), to be imposed in respect of the offence is to be 6 months.
(4)   If an order has been made, in accordance with subsection (1), that a person must serve in respect of an offence a term of imprisonment of not less than 6 months, a court must not —
(a) make any other order in respect of the offence; or
(b) amend an order in respect of the offence —
if the effect of that other order or amendment would be that the person is not imprisoned for a term of at least 6 months in respect of the offence.
(5)   Section 10(2)(b)(v) does not apply in relation to an offence to which subsection (1) applies, to the extent that section 10(2)(b)(v) might otherwise be taken to require subsections (1) and (3) to apply to an offence in relation to which a finding of guilt has been made but a conviction has not been recorded.
(6)   Nothing in this section, apart from subsection (7), is to be taken to prevent the application of section 11 in relation to an offence to which subsection (1) applies.
(7)   Subsection (3) and section 11(2) are each not to be taken to prevent the making of an order imposing, in respect of an offence to which subsection (1) applies, a term of imprisonment of more than 6 months if the order is imposed, in accordance with section 11(1), in respect of more than one offence, including but not limited to more than one offence to which subsection (1) applies.
(8)   Section 12 does not apply in relation to an offence to which subsection (1) applies.
(9)   Nothing in this section, apart from subsections (4) and (8), is to be taken to prevent a court making, in respect of an offence to which subsection (1) applies, an order (including an order imposing a penalty) that is an order in addition to an order imposing in respect of the offence a term of imprisonment in accordance with this section."
In this case, there can be no doubt that the defendant is to be convicted of an offence, which is against a provision of an Act. The evidence suggests that the offence was committed in relation to a police officer, and that that police officer has suffered some bodily harm caused by or arising from the offence. It will be necessary, therefore, to consider whether the section has application to this sentence.

Procedural operation

Before considering the substantive aspects of the section, it is convenient to consider its procedural operation. The effect of the provision is to impose a requirement on a court that convicts a person of a relevant offence, to impose a sentence upon that conviction of not less than six months' imprisonment. The provision is mandatory in its application and, accordingly, it limits the discretion which would otherwise be available to the court in the determination of the sentence. It follows that the operation of the provision is to prescribe circumstances which may render the offender liable to a different and possibly more severe punishment than would be the case if the offence was committed without the existence of those circumstances. In that sense, the section can be seen to prescribe circumstances which aggravate the seriousness of and punishment applicable for the offence.
The structure of the statutory criminal law in Tasmania is that various crimes and offences are defined by reference to the factual elements specified in the statute creating the offence. In some circumstances, a separate offence will be created by the addition of a further circumstance to the elements which create the first offence. The separate offence so created is often seen as more serious than the original offence because of the additional circumstance, which is usually referred to as a circumstance of aggravation. The principle in R v De Simoni (1980) 147 CLR 383, as it has been applied in Tasmania, is that a person may only be punished for the offence of which he or she has been convicted, without regard to circumstances which are the ingredients of a different offence, with which he or she has not been charged or convicted (see Walsh v The Queen (1996) 6 Tas R 70). In De Simoni, it was acknowledged that this principle had already been recognised and applied in Tasmania in Lovegrove v The Queen [1961] Tas SR 106.
However, the wording and general application of s 16A suggest that it does not, by the addition of the prescribed circumstances to the original offence, thereby create a separate offence. The provision expressly applies in circumstances where a person is "convicted of an offence" and at the point that the court is imposing sentence upon that conviction. Its effect is to superimpose a mandatory requirement on the sentencing court which will apply notwithstanding the penalty otherwise provided for that offence. It is a provision expressly intended to limit the broad discretion conferred on the court by virtue of s 7 of the Sentencing Act.
Because the circumstances which trigger the application of the section are not part of the offence for which the sentence is being imposed, it is not necessary that those circumstances be pleaded in the indictment or complaint which alleges the commission of the offence. The purpose of particulars in a charge alleging the commission of an offence is "to describe with reasonable clearness the nature of the charge" (the Criminal Code, s 314(3)), or to "give reasonable information of the nature of the matter complained of" (the Justices Act 1959, s 30). The particulars alleged in an indictment or complaint, therefore, describe in detail the basis upon which the prosecution alleges that the defendant has criminal liability. However, apart from the definition of the parameters of the offence by reference to its constituent elements, particulars will not limit the determination of the factual basis of sentencing by the sentencing court, except where they are stated as facts relied upon in sentencing in open court or adopted for that purpose. Hunter v White and Hibble [1994] TASSC 103.
Accordingly, the determination of the existence of the circumstances which trigger the application of the section is a matter for the sentencing judge or magistrate. The procedure adopted will be the same as the determination of the factual basis of sentencing generally. Because the circumstances which trigger the application of the section are taken into account in a way that is adverse to the interests of the defendant, the court should only find that those circumstances exist, and that the section applies, if satisfied of those matters beyond reasonable doubt (R v Olbrich (above)). It may well be, given the mandatory obligation imposed by the section on the sentencing court, that that court has a duty to enquire as to the existence of those circumstances if it seems that such circumstances may apply to the case. However, whether or not the court is required to or does make such enquiry, ultimately it can only be satisfied of the relevant factual circumstances which result in the application of the section, if satisfied of those matters beyond reasonable doubt.

Application of the section

The circumstances which must be established before the mandatory requirement of the section will apply, are as follows:
(a)that a person is convicted of an offence against a provision of an Act;
(b)that the offence is one which was committed in relation to a police officer;
(c)that the offence was committed while the police officer was on duty;
(d)that the police officer suffered serious bodily harm;
(e)which was caused by or arising from the offence.
In respect of the first of those requirements, the section applies to any offence, irrespective of whether the offence would ordinarily be punishable by imprisonment, or by imprisonment for a term of at least six months (see s 16A(3)). In this case, of course, the defendant has pleaded guilty to a crime contrary to the Criminal Code. It is beyond dispute that he is to be convicted of an offence against a provision of an Act. It is also beyond dispute on the evidence that at the time of commission of the offence, Constable Rawlings was a police officer.

Section 16A(2) provides that for the purposes of the section "an offence is taken to be committed in relation to a police officer only if the person who committed the offence knows or ought reasonably be expected to know that bodily harm to a police officer may be caused by or arising from the offence". According to the second reading speech relating to this provision, the purpose of subs (2) was to avoid the application of the section in circumstances in which a person had committed a minor offence, for example, a minor traffic offence, and it coincidentally resulted in serious injury to a police officer. In such a case, the section would not apply unless the defendant knew or ought to have known that bodily harm to a police officer may be caused by or arise from the offence. This is consistent with the stated purpose of the section, which is to deter unlawful conduct which places police officers in jeopardy of injury.
In this case, I am satisfied beyond reasonable doubt that the defendant knew that the person he was attacking was a police officer. Constable Rawlings was in uniform, she had conversed with the defendant, both shortly before the attack and earlier in the day, and the defendant conceded in evidence that he knew her personally as a police officer, although he did not recognise her prior to or at the time of the attack. In the sequence of facts as I have found them, the defendant struck her several times with a heavy object, including about the head, and then threw her to the ground without control. Before doing so, Constable Rawlings had threatened to apply OC spray. All of these matters support the conclusion that the defendant knew he was assaulting a police officer and, further, that he knew, or ought reasonably be expected to know, that she may suffer bodily harm. It follows that I am satisfied that the offence was committed in relation to a police officer.

While the police officer was on duty

It is also an inescapable conclusion from the evidence that Constable Rawlings was on duty at the time that the assault occurred. Of course, the charge to which the defendant has pleaded guilty is assault, contrary to s 184 of the Criminal Code, and not a charge of assaulting a police officer in the due execution of her duty contrary to s 114 of the Criminal Code. The significance of that distinction is that if the circumstances upon which s 16A depend for application include a circumstance which, when combined with assault, would create another separate offence, an offence which might be regarded more seriously for the purposes of sentencing, then it is arguable that that circumstance should be disregarded for the purposes of sentencing (Lovegrove; De Simoni). In those circumstances, a question would arise as to whether the section has application.
However, that point need not be determined in the circumstances of this case. My conclusion is that the mere fact that the police officer was on duty at the time that the assault was committed against her, which is all that is required for the section to have application, would not of itself be sufficient to establish the element contained in s 114, which requires that the police officer be assaulted in the due execution of her duty. What is meant by the phrase "while the police officer was on duty", is not defined by the Sentencing Act. However s 50 of the Police Service Act 2003 defines "on duty" for the purposes of that section, as including: "reporting for duty, being on standby for duty and being on availability for duty".
Although that definition is not directly applicable to this provision, it does support the conclusion that the reference in s 16A to "on duty" is referable to a time period and not the nature of the function that the police officer is conducting at the relevant time. This interpretation is supported also by the use of the word "while" in reference to the police officer being on duty. This interpretation is consistent with the intention of the legislation being to protect police officers during a time when they are performing their work as police officers, rather than limiting their protection to a consideration of the nature of the performance of their duty. The reference in s 114 to the "due execution of his duty" is a narrow concept and one which is referable to the nature of the function that the police officer is performing, rather than a temporal consideration. There have been a number of cases in which a police officer who, although clearly on duty at the relevant time, has been held for the purposes of provisions analogous to s 114(2) to not be acting in the execution of that duty. (See Innes v Weate [1984] Tas R 14; Smith v Marshall [1994] TASSC 35.) In Coates v The Queen [2001] TASSC 141, Slicer J, with whom Cox CJ agreed, observed that: "the term 'acting in the execution of duty' differs in meaning from 'acting in the course of duty'." His Honour noted numerous cases in which it had been held that a police officer who was properly acting in the course of his or her duty in attending or being at the scene of events, might not be acting in the execution of that duty when he or she was carrying out a particular action. That case concerned whether the court was precluded by the principles in De Simoni from taking into account as an aggravating factor in sentence, the fact that the defendant had assaulted a police officer who was acting in the course of his duty when the crime for which he was being sentenced was assault, as opposed to assaulting the officer in the execution of his duty under s 114. The Court of Criminal Appeal unanimously held that the sentencing court correctly took into account the fact that the person assaulted was a police officer acting in the course of his duty. It seems to me that this reasoning is apposite to the circumstances in this case. Accordingly, I conclude that I am not precluded from finding that Constable Rawlings was on duty as a police officer at the time of the assault, and I so find.

Serious bodily harm

It is also clearly established on the evidence I have accepted that Constable Rawlings suffered bodily harm caused by or arising from the offence. However, the question which then arises is whether that bodily harm can be described as "serious bodily harm".
Once again, this term is not defined by the legislation. Further, it is not a term in common use in the criminal law in Tasmania. "Bodily harm" is not statutorily defined, but juries in Tasmania are generally directed, when necessary, that it has the meaning established in R v Donovan [1934] All ER 207 as:
"Any hurt or injury calculated to interfere with health or comfort. Such hurt or injury need not be permanent but must, no doubt, be more than mere transient or trifling."
The term "grievous bodily harm" is defined by the Criminal Code, s 1, as follows:
"grievous bodily harm means any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause serious injury to health".
In R v Perks (1986) 41 SASR 335, the South Australian Supreme Court (in Banco) considered whether the term "serious bodily harm" was properly synonymous with the term "grievous bodily harm" in the context of directions given to a jury considering an accused's intention in respect of a common law charge of murder. The court held that those terms are not synonymous, and that the term "serious bodily harm" connoted something less than would be conveyed by the term "grievous bodily harm". It held that the proper direction in relation to grievous bodily harm was "really serious bodily harm". King CJ said:
"I refer briefly to the learned Judge's use of the expression 'serious bodily harm' in place of the conventional 'grievous bodily harm'. I think that there has been a tendency, which I have shared, to assume without proper consideration that 'serious' is a synonym of 'grievous'. I am sure that I have frequently used the expression 'serious bodily harm' as synonymous with 'grievous bodily harm'. Having heard the argument on this appeal and reflected on the matter, I have reached the conclusion, however, that in some factual situations the expression 'serious bodily harm' may mislead a jury into regarding the degree of harm which must be intended in order to constitute murder, as less serious than the law actually requires. Like White J, I consider that the conventional expression 'grievous bodily harm', despite its somewhat archaic ring, should be adhered to. If the meaning of 'grievous' is to be explained, the expression 'really serious' rather than merely 'serious' should be used."
The principal judgment in that case was written by White J, with whom King CJ and O'Loughlin J agreed. In his decision, White J said:
"In many cases, 'grievous bodily harm' is explained to the jury as meaning 'really serious bodily injury' (Reg v Cunningham[1981] 3 WLR 223, at p 226), or in other words which make clear that the intention must be to cause some life-threatening harm. An assault with the intention of breaking a toe or a finger may cause 'serious bodily harm' but is not the kind of assault or intention relevant to the crime of murder (ibid.)"
Perks has been cited with approval by the High Court in Wilson v The Queen (1992) 174 CLR 313 at 333, and by a number of subsequent decisions of intermediate courts of appeal. In Swan v The Queen [2016] NSWCCA 79, Garling J, at [76], considered whether an injury which involved a fracture to a bone that was a part of the lumbar vertebrae amounted to grievous bodily harm. His Honour accepted that such an injury was capable of amounting to grievous bodily harm, but he noted a number of features in that case which mitigated against that conclusion. Those features were:
"(1)There was no displacement of the fracture;
(2)The fracture required no operative or other treatment, including ongoing medical consultation;
(3)There was no permanent injury;
(4)The victim was in hospital for a relatively short period and was released without any plan for further treatment;
(5)The doctor who saw and treated the victim described the injury as a 'minor one'; and
(6)The victim did not visit any doctor for any treatment at any time after leaving hospital."
His Honour said of these features:
"Consideration of these features of the victim's injury demonstrates that the injury fails to answer the description of 'serious bodily injury', let alone 'really serious bodily injury'. Whilst the question of whether an injury amounts to 'really serious bodily injury' is one of fact and degree, and appropriately one for the jury's assessment, that does not mean that all injuries will properly be assessed as really serious …".
Of course, those cases relate to the meaning of "grievous bodily harm" under the common law. The definition of "grievous bodily harm" in the Criminal Code includes reference to the causation of "serious injury to health". Despite this, the legislature has chosen not to define the extent of harm needed to make the section applicable as "grievous bodily harm". This suggests that "serious bodily harm" is intended to have a different meaning to "grievous bodily harm", at least as it is defined by the Criminal Code. A consideration which supports this view is that if "serious bodily harm" is to be regarded as synonymous with "grievous bodily harm", then an implication may be that the rule in De Simoni would effectively restrict the operation of the section to cases in which the defendant has been charged with a crime that involves the causation of "grievous bodily harm". This would be patently contrary to the intended operation of the provision (see s 16A(3)).
On the other hand, the wording and structure of the section indicate that the term "serious bodily harm" has been deliberately chosen by the legislature in order to restrict the application of mandatory sentencing to serious cases. This is confirmed by the second reading speech, where the Attorney-General said:
"It is important to note that the mandatory penalty will only apply where the offence has resulted in serious bodily harm. This ensures that the penalty will not apply if the assault for which the offender was convicted was relatively minor and resulted in slight injuries".
In Fleming v Hutchinson (1991) 66 ALJR 211, the High Court was dealing with a special leave application relating to the meaning of "serious" as it governed injury in the Transport Accident Act 1986 (Vic), s 93(17). The court said that the word "serious" as it governed injury in that context was "one of degree not susceptible of clarification on appeal to the High Court of Australia". Dictionary definitions of "serious" also suggest that it is a matter of degree. For example, the New Shorter Oxford English Dictionary defines "serious" as including the following:
"important grave; having (potentially) important, especially undesired, consequences; giving cause for concern; a significant degree or amount, worthy of consideration".
The word "serious" is used to qualify many concepts throughout Tasmanian legislation. Section 36 of the Work Health and Safety Act 2012 defines "serious injury or illness" of a person to mean "an injury or illness requiring the person to have:
(a)immediate treatment as an in-patient in a hospital; or
(b)immediate treatment for —
(i)     the amputation of any part of his or her body; or
(ii)     a serious head injury; or
(iii)    a serious eye injury; or
(iv)    a serious burn; or
(v)     the separation of his or her skin from an underlying tissue (such as degloving or scalping); or
(vi)    a spinal injury; or
(vii)   the loss of a bodily function; or
(viii) serious lacerations; or
(c)medical treatment within 48 hours of exposure to a substance —
and includes any other injury or illness prescribed by the regulations but does not include an injury or illness of a prescribed kind."
Again, there is no suggestion that this definition is directly applicable to the meaning of the provision under consideration, but it does assist in a general understanding of the use of the word "serious" where it is intended to qualify the severity of bodily harm in a legislative context. Ultimately, in any assessment as to whether a police officer has suffered serious bodily harm within the meaning of this provision, a sentencing court ought bear in mind that the bar should not be set so high that it frustrates the legislative purpose of the provision, but at the same time must consider that the section is intended to apply in cases which have a degree of seriousness which sets them apart from the average case.
The above considerations lead to the conclusion that by using the term "serious bodily harm", the legislature intended that the minimum degree of seriousness required to activate the section would fall some where between mere bodily harm and grievous bodily harm. Ultimately, the assessment as to whether the police officer has suffered serious bodily injury will be a question of fact and degree, but made in the context of the abovementioned considerations. The causation of mere bodily harm will not be sufficient to activate the application of the section, but neither must the harm amount to grievous bodily harm. In determining whether or not the harm suffered is serious bodily harm, the sentencing court must be satisfied of that fact beyond reasonable doubt before the section will have application.

Resolution

The evidence of the harm which Constable Rawlings suffered which was caused by or arose from the commission of the offence by the defendant can be summarised as follows:
(a)Constable Rawlings' oral evidence was that when she was picked up off the floor and thrown backwards, her "head smashed into the heater", and she put her hand down to stop her fall. Her hand was hurting and a little later she saw that her little finger was sitting at a 90 degree angle to her hand. It was after this that she recalls the defendant falling on her, as he was brought to the ground by the other police. She did not suffer any bruising from the blows with the sex toy, and does not recall losing consciousness at any stage during the relevant events.
(b)The prosecution tendered a report from Dr Marielle Ruigrok, Director of Emergency Department of the North West Regional Hospital. The report confirms that Constable Rawlings was seen at the Emergency Department of the hospital at about 9.25pm. X-rays confirmed a fracture of the proximal phalanx (small finger bone closest to the hand) with ulna deviation of the distal part of the finger. The fracture "required relocation to a normal position and this was done after a local anaesthetic block was inserted. The finger was splinted and strapped to the adjacent finger for two weeks". Constable Rawlings was given a workers compensation certificate for no work until 16 May 2016 and provided with pain relief. The report notes that on subsequent review, the fracture was "managed conservatively (splinting and occupational therapy)". As at 22 July, the finger injury was still causing "some concern as it appears that she still does not have complete functioning back and there is still some deformity to her little finger". The conclusion of the report is set out in the following paragraphs:
"In summary Deanna sustained a significant injury of the left little finger in April 2016 and still has ongoing issues with this injury. She also sustained a minor head injury at the time of the injury with subsequent mild post traumatic amnesia which has since resolved.
The minor head injury described is consistent with her falling and hitting the back of her head. Post-traumatic amnesia can occur without a loss of consciousness at the scene and may not be evident at the time of initial assessment. The finger injury could have occurred when she fell or when she was wrestling with the alleged offender. It is a more significant injury as she still has ongoing issues and her function is not back to normal. Over time this will improve but there is a significant possibility that there will always be a small deficit in the function of this finger and some residual deformity."
(c)Constable Rawlings' victim impact statement describes the actual effects of her injuries since the assault. She notes that for approximately two weeks after the assault there were some mild cognitive symptoms, including losing words in conversation. However, the injury to her finger has been the most significant injury. It was in plaster for one week and then put into a brace. She had difficulty for some time in using her hand, including performing simple tasks. She has continued with occupational therapy, is unable to bend her finger fully and unable to grip things. She has seen a surgeon and is contemplating further surgery in an endeavour to improve the function of the finger.
Constable Rawlings has also described some understandable psychological sequelae, and has required counselling. These matters are relevant to the assessment of sentence, but I do not think that it could be said that the psychological sequelae, in itself, constitutes bodily harm. Of course, to the extent that such are symptoms of bodily harm caused by or arising from the assault, they would be relevant to the assessment of whether the bodily harm is serious bodily harm, but I do not understand that this is asserted by the prosecution.
In this case, after considerable reflection, I am not satisfied beyond reasonable doubt that the bodily harm suffered by Constable Rawlings as a result of this assault amounts to serious bodily harm within the meaning of the section. There is no doubt that the injuries sustained by her amounted to bodily harm. They involved hurt or injury calculated to interfere with the health or comfort of the police officer and were more than merely transient or trifling. However, I am not satisfied that the bodily harm is serious within the meaning of the provision. In arriving at this conclusion I have had regard to the following factors:
(a)The officer did not require hospitalisation as an inpatient in relation to either the head injury or the injury to her finger.
(b)She did not require surgery with respect to the finger. The treatment was immediate and relatively simple. There is no evidence that it has required any further significant treatment. The officer is giving consideration to surgery to improve the function of the finger, but there was little in the way of evidence or explanation about this. There is insufficient evidence to enable me to form conclusions as to the prognosis in respect of the function of the finger, and whether further treatment or surgery is necessary or justified.
(c)The police officer has apparently obtained further treatment for the head injury from occupational therapists. Again, there was little in the way of clear evidence about this, and in the absence of such evidence, I would not be satisfied that the consequences of the head injury have been established to the requisite standard.

Although I am not satisfied beyond reasonable doubt that the bodily harm amounts to serious bodily harm, and hence s 16A has application, I accept that the assault was a brutal and dangerous one, and that the police officer has in fact suffered significant impact as a result of the assault, in the manner described by her. These are matters which will be taken into account in sentencing, notwithstanding that the mandatory penalty provided by s 16A is not applicable in the circumstances of this case.
I will set out my sentencing comments separately.