Watts v Police No. Scciv-02-1449

WATTS v POLICE
[2002] SASC 400
Magistrates Appeal (Criminal)

BLEBY J (Ex tempore): This is an appeal against conviction and sentence recorded against the appellant in the Christies Beach Magistrates Court. The appellant was convicted, after a trial, of assault, contrary to s 39(1) of the Criminal Law Consolidation Act 1935. He was sentenced to four months imprisonment, which sentence was suspended on the appellant entering into a bond to be of good behaviour for a period of three years.
I deal first with the appeal against conviction. The appellant appealed against his conviction on grounds that the Magistrate erred in the application of the law of self defence to the evidence, that the Magistrate erred in failing to consider all the evidence relevant to the issue of self defence, and that he erred in his application of the onus and burden of proof.
The evidence of the alleged victim, Susanne Woods, was that she went to the appellant’s house at Derek Court, Morphett Vale on 18 April 2002 to pick up some property which she said belonged to her and to her partner, a Mr Hibbard. The property consisted of some mail and two marijuana plants. Ms Woods was accompanied by a friend, a Ms Slattery. Ms Woods said that she knocked on the door but there was no response, so she walked to a side gate. The gate was a powder coated bar gate with approximately three inches of separation between the bars. The gate was concreted into the side of the carport, it was padlocked shut.
The appellant then came out from behind the closed gate and said “What can I do for you” or “What can I do you for”. Ms Woods responded that she was there to pick up some property. According to her the appellant then “roared like a lion”. Ms Woods claims that she giggled and the appellant then came to the bar gate and, through the bars, gave a quick jab or punch. His right fist, she said, connected with her right eye and her glasses, leaving a tiny bruise as the Magistrate found, “almost perhaps too small to be discerned”. He then grabbed the complainant’s glasses and held them in his hands, and scrunched his hands together and threw the glasses away. He then spat at her in the face.
Ms Woods said that she took some defensive action but did not think that she made contact with the appellant. She was wearing a brace on her right arm and hand which was strapped in a material cast. She had recently dislocated and fractured her hand, so her right hand was very weak and of limited use at the time. The appellant, she said, then went inside his house, yelling “Help, help, somebody’s trying to break into my house”.
It was the respondent’s evidence that he pressed a duress alarm inside his house. In the meantime, Ms Woods and Ms Slattery called the Police and were looking for the glasses, eventually returning to Ms Woods’ car sitting in the appellant’s driveway. The appellant then ran out of the front door of the house and began kicking the lights of the car and punching at the windows, and grabbed a windscreen wiper in his hand.
The complainant’s injuries were barely noticeable. Her glasses were damaged but not beyond repair. Her evidence was in substance supported by that of her friend Ms Slattery. The appellant gave evidence and said that Ms Woods became upset when he told her that other arrangements had been made between him and Mr Hibbard for the collection of the plants. According to him, the complainant lunged through the bars of the side gate which caused the appellant to sustain a small injury to his finger. He claims that he grabbed her glasses and threw them away to give him time to get away. He then went inside and pushed the duress alarm. He said the two women had been trying to push open the door, and that he was worried for his life. He admitted to coming out the front door of the house and kicking the car in the headlight and the bonnet area, while the car was moving.
The Magistrate accepted the evidence of the two women who were the prosecution witnesses. He was asked by the appellant to conclude that the appellant was acting in self defence and in defence of his property. There was some superficial discussion by the Magistrate about the law relating to self defence. However, the evidence of the two women was accepted by the magistrate in preference to somewhat different evidence of the appellant, as to what happened before the assault took place. On that basis, no question of self defence could possibly have arisen. It might have arisen if the Magistrate had accepted the evidence of the appellant. He did not. There is no basis on which to upset that finding as to whose evidence the Magistrate should have preferred.
In rejecting the appellant’s evidence, the Magistrate rejected any grounds on which the defendant could have reached a subjective belief that his conduct was necessary and reasonable. That left the evidence of the complainant and her friend, and there was nothing on their evidence that could have raised the possibility of self defence. The Magistrate concluded that the defendant was acting in a hostile way towards Ms Woods. On the facts found there was no justification for the conduct. There is nothing to suggest that the magistrate in some way reversed the onus of proof on the prosecution to negative self defence. On the prosecution case and on the facts found by the Magistrate, the defence just simply did not arise.
There is therefore no substance in the appeal against the finding of guilt. That aspect of the appeal must be dismissed.
I turn to the question of sentence. The grounds of appeal against the sentence are that the Magistrate erred in failing to consider s 11 of the Criminal Law (Sentencing) Act 1988, that he failed to consider penalties other than imprisonment, that he erred in recording a conviction and that the sentence was manifestly excessive.
In his sentencing remarks the Magistrate noted that the harm done to Ms Woods was “so slight as barely to merit comment”. The appellant had no prior relevant convictions and that was noted by the Magistrate. There was one previous matter which had been dealt with without conviction, which was perhaps some indication of its seriousness. The Magistrate considered s 16 of the Criminal Law (Sentencing) Act in relation to the non-recording of a conviction, but still thought that a conviction of the accused was required. That was the view which the Magistrate could properly form. In my opinion there was no error in entering a conviction.
The term of imprisonment determined by the Magistrate was suspended because of the absence of any previous offences of violence. Under s 39 of the Criminal Law Consolidation Act the maximum penalty that could have been imposed for this offence is two years imprisonment. In my opinion the Magistrate did err in not properly applying s 11 of the Criminal Law (Sentencing) Act 1988. Section 11 provides:
“(1) A sentence of imprisonment may only be imposed
(a) if in the opinion of the Court
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in s 10(2).”
Section 10(2) provides:
“A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.”
I will not repeat sub-section (2) of s 11 because it is not relevant in the circumstances.
There is no suggestion from the Magistrate’s reasons that he considered s 11 at all. Given the minor nature of the injuries and the appellant’s previous record, I consider that the Magistrate had properly considered the section, he would have felt constrained not to impose a term of imprisonment. None of the relevant criteria specified in s 11(1)(a) were met. The Magistrate found that the appellant struck one minor blow to the face with minimal injury, and grabbed the complainant’s glasses off her face and spat on her.
No doubt the complainant was shocked and frightened at the time, but she sustained little if any physical injury. The offence occurred at the appellant’s home and not in a public place. It does not appear to have been alcohol related. General and personal deterrence play some part, but perhaps a lesser role than is usually the case. Given the appellant’s prior record, or lack of relevant record, in my opinion it was incumbent upon the Magistrate to consider the provisions of s 11. In all the circumstances I consider the penalty imposed was manifestly excessive, and that the sentencing discretion miscarried.
The assault, in my opinion, was at the lower end of the scale. That is apparent from the nature of the injuries and the circumstances under which it occurred. In my opinion, an appropriate sentence in this case would have been a fine, and accordingly I propose to allow the appeal and substitute a fine in lieu of imprisonment. The order of the Court will be:
1.Appeal against conviction dismissed.
2.Appeal against sentence allowed.
3.Set aside the order for imprisonment imposed in the Magistrates Court and substitute in lieu therefore a fine of $250.

[2002] SASC 400

18 November 2002