Vlismas v Tito

[1992] QCA 377

IN THE COURT OF APPEAL [1992] QCA 377

SUPREME COURT OF QUEENSLAND

Appeal No. 154 of 1992

Before the Court of Appeal

The President

Mr. Justice Pincus

Mr. Justice Lee

ANTHONY VLISMAS

v.

TRAVIS WILLIAM TITO

(Appellant)

JUDGMENT - FITZGERALD P, W.C. LEE J.

Delivered the Fifth day of November 1992.

MINUTE OF ORDER:

.Appeal against conviction dismissed.
.Application for leave to appeal against sentence allowed.

.The fine of $500.00, the order as to costs and the order as to

payment of the moiety of the fine set aside.

.Probation order made for 12 months including a condition that the appellant pay compensation to Brett Andrew Manteit in the sum of $500.00.
CATCHWORDS:

CRIMINAL LAW - PROVOCATION - Appellant convicted of assault occasioning bodily harm and fined $500, ordered to pay costs and moiety to complainant - Whether Magistrate ought to have found appellant provoked - Whether offence trivial - Whether in all the circumstances appellant ought be afforded probation.

Counsel:M. Green for the Appellant.

J. Costanzo for the Respondent.

Solicitors:  Connor Hunter for the Appellant.
Director of Prosecutions for the Respondent.

Hearing date: 22nd July 1992.

JUDGMENT OF THE COURT

Dated the Fifth day of November 1992.

This is an appeal against conviction and an application for

leave to appeal against sentence consisting of a fine of $500.00

imposed by a Stipendiary Magistrate at Dalby on 23rd April 1992

following the summary trial and conviction of the appellant

(hereafter called "the defendant") on a charge pursuant to s.

339 of the Criminal Code of assault occasioning bodily harm.

The defendant was also ordered to pay $48.75 costs of court and the Stipendiary Magistrate ordered that a moiety of the fine be

paid to the complainant. He imposed imprisonment of 28 days if

the defendant defaulted in paying the fine and costs in

accordance with the time allowed to pay.

Section 339 prescribes a maximum term of imprisonment of

three years for such an offence punishable on indictment. Where

the charge is tried summarily as in this case, s. 343A

prescribed a maximum fine of $1,000.00 inclusive of costs or

imprisonment for two years. The defendant did not give evidence

at the trial.

The grounds of appeal are as follows:

"1. The Learned Magistrate was in error in finding that a second punch delivered by Tito to Manteit was unlawful in that he found as a matter of law that said punch amounted to a disproportionate use of force having regard to the force applied by Manteit to Tito which constituted provocation for both the first and second punches.

2.   The Learned Magistrate was in error in finding that the second punch delivered by Tito to Manteit occasioned bodily harm to Manteit.

3.    The sentence imposed was manifestly excessive for the following reasons:

a)The Learned Magistrate was unduly influenced by the occurrence of such offences within his jurisdictional area;

b)The age and antecedents of Tito;

c)The facts and circumstances which occurred prior to and

inclusive of the alleged offence."

The main complaint with respect to the conviction, was that

the defence of provocation pursuant to s. 269 of the Criminal

Code was made out with respect to the second punch and that it

had not been excluded by the prosecution. It was further

contended in the alternative that by reason of ground 2, the only conviction which could have been recorded was for common assault pursuant to s. 335.

The complainant, Brett Andrew Manteit was aged twenty-two

years at the material time. He had been drinking with friends

at an hotel in Dalby from about 10.30 p.m. on Friday 19th July 1991 to 1.45 a.m. on Saturday 20th July 1991. He then left with

several others and proceeded to walk along the street. The defendant who had also been drinking earlier with friends, was

walking behind the complainant with two of his friends. The complainant said that he heard a voice from behind saying "White boy" two or three times. The facts of the case as found by the Stipendiary Magistrate appear from the following part of his

decision:
"However, the evidence which I do accept is that Mr Manteit

wrongly assumed that the words, 'White boy, white boy' or 'White fellows' were directed at him, and turned around aggressively and asked the defendant if he was referring to him, and when told by the defendant to get out of it, he then assaulted the defendant by pushing him to the chest or shoulder area and thereby provoked the defendant into assaulting him back by pushing him to the shoulder area or chest. Mr Manteit then retaliated by a push with an open hand to the defendant's face.

On Mr Wright's evidence, which I accept in this regard, this was not a severe blow, but nevertheless, surprisingly I might add, the defendant in his record of interview, claimed it caused him pain which I can't dispute, and he has elected not to give evidence here today, which is his right, and no adverse inference will be taken against him as a result.

The defendant, as a result, is thereby further provoked and retaliates with an obvious heavy punch to Mr Manteit's left cheek near his left eye, forcing him backwards and onto the ground or footpath in a sitting, half-laying position about 2 metres away from the defendant near the gutter kerbing.

Two or three seconds elapse, and without further provocation or in fact any action or words on Mr Manteit's part. The defendant having to first move about 2 m, delivers a further solid punch or uppercut to Mr Manteit's chin area while he is still on the ground, leaving him motionless and further stunned."

The defendant and his two friends then left. The

Stipendiary Magistrate referred to what he regarded as a callous

remark to a Miss Donpon and her friend who were attending the complainant viz. "Good evening". It appears from a further remark by the Stipendiary Magistrate when sentencing the defendant that he was of the view that the defendant made or at

least was responsible for this remark. There was no evidence to

support such a conclusion.

The Stipendiary Magistrate continued:

"Whilst I accept that the first severe blow by the defendant to Mr Manteit was lawful, under the provisions of s 269 of the Criminal Code, I would also indicate that except for his own statement in the record of interview of 'pain to his mouth' or words to that effect, I would find it would have fallen within the provisions of s 283 Excessive Force in all the circumstances.

However, I have no hesitation in finding that the second blow to Mr Manteit's chin area when he was on the ground, clearly comes within the provisions of s 283 of the Criminal Code, was not delivered in a way that could be termed simultaneous to the first and was not in self-defence, but in fact was upon wrongful and unreasonable beliefs on the defendant's part, that Mr Manteit might get up and might want to hit him again.

I in fact find the second blow delivered to Mr Manteit to be totally unreasonable, uncalled for, callous and unlawful."

Having applied the correct onus and standard of proof, the

Stipendiary Magistrate concluded that he was satisfied beyond

reasonable doubt that the prosecution had proved all of the
elements of the complaint and convicted the defendant.

Before this court it was submitted that the second punch was, as with the first, also a consequence of provocation. This submission was made before the Stipendiary Magistrate who rejected it in the clearest of terms and in particular by his concluding finding set out above. It was nevertheless submitted that the Stipendiary Magistrate, from a statement he made during

the sentencing process at p. 127, in fact found that both

punches resulted from provocation but that the defendant used

too much force in the second punch. His Worship said:
"I would indicate that on this occasion, whilst I have

found you were provoked, I would indicate that you have been provoked in what could be deemed as a fairly minor sort of a way, and in no way entitled you to retaliate to the extent that you did."

These remarks are perfectly consistent with the earlier

findings and cannot support the submission contended for on the

appeal. There was a gap of some two or three seconds between the two punches. The second punch was delivered whilst the

complainant was on the ground, injured, to an extent stunned and had offered no further comment or provocation to the defendant

which could justify the second severe and heavy blow. The submission that the provocation which the Stipendiary Magistrate found existed with respect to the first punch, continued so as

to justify the second blow, is simply not open on the accepted

evidence and the findings.

Therefore the facts as found, which were justified on the
evidence, do not fall within the provisions of s. 269 of the

Criminal Code. Furthermore, the proviso to that section makes

it clear that even if there is provocation, and the force used

is disproportionate to the provocation, the defence is not made

out. This is in effect what was found by the Stipendiary Magistrate. Also, the passage from the record of interview with

the defendant quoted by the Stipendiary Magistrate at p. 119, in

no way suggests that the defendant was provoked, particularly with respect to the second punch. In answer to the question "And why would you have struck him twice and not once?", the defendant replied "I don't know - in case he got up". When

asked "Did he look like getting up again?", the answer was "I can't remember". There was no suggestion from the defendant that he had lost control of himself in the heat of the moment or

that he acted on the sudden and before there was time for his

passion to cool. This ground of appeal is not made out.

As to the second ground of appeal, the first punch was to

the left cheek of the complainant near the left eye. The second

punch was to the chin. It appears that the complainant suffered

a black eye and a cut to the eye but also suffered a chipped tooth, headaches and pain. It was submitted that the finding of

bodily harm was not open because all of the injuries from which the complainant said he suffered, could have resulted from the

first blow. It was submitted that there was no evidence to

establish that the complainant suffered any bodily harm as a result of the second blow. It was also submitted that there was no mention of a chipped tooth or headaches made to the medical practitioner.

The Stipendiary Magistrate found that the cut to the complainant's eye was not caused by the second punch which was delivered to the chin whilst the complainant was on the ground.

As submitted by counsel for the Crown, this is consistent with
the complainant suffering a chipped tooth from the second punch,

resulting in necessary dental treatment. It is clear from the dialogue with counsel following the conviction that the

Stipendiary Magistrate accepted the complainant's evidence as to

the injuries he suffered and in particular his evidence of the pain suffered and headaches. It is apparent from remarks he

made that the reference was to the second punch. This finding

was clearly open on the evidence. Ground 2 also fails.

This leaves the question of sentence. The defendant is now

twenty-one years of age, single, and employed as a scaffolder.

He has a good work record, and has no previous convictions. He

is undertaking study with a view to acquiring his scaffolder's

ticket. He expressed his desire before the Stipendiary

Magistrate and before this court that he wished to become a

member of the Police Force. Various references were tendered on his behalf. It was urged before the Stipendiary Magistrate that

no conviction be recorded but that the defendant should be placed on a good behaviour bond pursuant s. 657A(2) of the

Criminal Code because of the special circumstances of the case

viz. the above circumstances, coupled with the following:

i.The fight was not started by him;

ii.The complainant was the initial aggressor;

iii.The defendant was initially provoked;

iv.The second blow occurred very shortly after the first;

v.The complainant suffered little if any after-effects from the

second blow beyond a day or so.
The Stipendiary Magistrate rejected the submission as to

s. 657A, expressing the view that the offence was not a trivial one. He concluded that alcohol may have caused the defendant to act as he did and said he would not tolerate assaults. He referred to the word "callous" as descriptive of the second blow, and said that penalties he had been imposing were not

severe enough. He took the view that whilst the defendant was initially provoked "as a fairly minor sort of way", he was not

entitled to retaliate as he did. He again referred to "the guile" of the defendant to wish "Good evening" to people who

were there to pick up the pieces and clean up the mess, as indicative of attitude. He found that the matter was in no way

minor, frivolous or trivial, but was in fact a very serious assault. He imposed what he regarded as a severe fine. No submission was made before the Stipendiary Magistrate that a probation order or community service order was appropriate.

Before this court, various criticisms were made of the approach of the Stipendiary Magistrate. It was said that whilst he was entitled to take into account the prevalence of the

offence in question, he gave it undue weight rather than weighing this factor against other factors which outweighed this consideration. In addition to the factors mentioned before the Stipendiary Magistrate, it was said that the Stipendiary

Magistrate on one version of his reasoning held that the second

punch was lawful but there was too much force used. It was also

said as relevant that the defendant was not a resident of the Dalby area since this diminished the significance of the

prevalence of the offence. For reasons already stated, the

submission that the second punch was lawful but there was too much force used is not correct. It is also difficult to see that the place of residence has any bearing on the question of

sentence.

It was further submitted that the Stipendiary Magistrate should not have imposed a deterrent punishment based upon all of the foregoing circumstances. It was said that this was clearly

the effect of the fine imposed because the Stipendiary

Magistrate took into account as attributable to the defendant,

the effect of the words "Good evening" which the witness

Miss Donpon heard made as the defendant and his two companions

left the scene after the second punch. As already indicated,

the Stipendiary Magistrate referred to this aspect as

attributable to the defendant both in his reasons which led to

the conviction and again during the sentencing process.

Counsel for the respondent conceded that the Stipendiary

Magistrate did place emphasis on the comment "Good evening"

which could not be directly attributable to the defendant, as displaying guile. This concession is properly made on the

evidence. It was submitted however that the Stipendiary Magistrate was entitled to take into account the prevalence of certain offences occurring in his jurisdiction; R. v. Peterson [1984] W.A.R. 329; Hargreaves v. Chakley (1903) 24 A.L.T. 184,

that the sentence imposed was within the appropriate range of

penalties open to be imposed in the exercise of discretion and

that a bond pursuant to either s. 657A(1)(f) was as out of the

question as an unconditional discharge under s. 657A(1)(e)

because, as conceded by counsel for the defendant at the trial,

the offence was not one of a trivial nature.

Notwithstanding the concession made by counsel for the

defendant at the trial, the submission was renewed before this

court that the defendant should be placed upon a good behaviour bond pursuant to s. 657A(2). It is clear that this section can

operate only where the offence is of a trivial nature. It cannot be said that the circumstances of this particular offence places it within that category. It was then submitted that had

either community service or probation been offered to the defendant as opposed to a conviction, counsel would have

strongly counselled the defendant to accept it and expressed the view that the defendant probably would have accepted it rather than have a conviction recorded against him.

It having been conceded that the Stipendiary Magistrate wrongly placed emphasis on the remark "Good evening" as displaying guile and indicating callousness, the question of

sentence is open to review by this court. Of considerable significance is the fact that the defendant has had no previous convictions whatsoever and the references tendered indicate that he otherwise was of good character. Had the matter been raised

before the Stipendiary Magistrate, he may well have considered the making of a probation order as appropriate in the special

circumstances of this case. Unfortunately it was not sought.

The appeal against conviction is dismissed. However, the

defendant should be given the opportunity of a probation order

for a period of 12 months if he is prepared to agree to such an

order and the terms thereof, after the effect of such an order

is explained to him. The terms are:

(i) That he abstain from violation of the law;

(ii)That he report in person to a Community Correctional Officer

at Brisbane within 24 hours after his release on

probation;

(iii)That he carry out the lawful instructions of the Community

Correctional Officer;

(iv)That he report and receive visits as directed by the

Community Correctional Officer;

(v)That he notify the Community Correctional officer within 48

hours of any change of address or change of employment

during the probation period;

(vi)That he shall not leave or remain out of Queensland during

the probation period;

(vii)That he pay compensation in the sum of $500.00 for the

injury occasioned to Brett Andrew Manteit by the

commission of the offence, such compensation to be paid on or before 5th February, 1993, and to be paid

in the first instance to the Sheriff of the Supreme

Court at Brisbane.

If the defendant agrees to the above requirements, the application for leave to appeal against sentence should be granted, the fine of $500.00, the order as to costs and the order as to payment of the moiety of the fine should be set aside, and instead of sentencing the defendant, a probation order should then be made for a period of 12 months on the above terms and conditions.