Giucci v Serbatoio [2005] ACTSC 132

4. I accept that there was prior to that night a longstanding relationship between the appellant and Ms Stiles who had worked at Mooseheads, that there was an interruption in that relationship in the course of which she formed a relationship with Mr Martin that lasted about 2 months before it ended.

5. It is of course apparent, and a reasonable inference to draw, that Mr Martin, being resentful of that, and/or feeling jealous of the appellant, whichever be the expression of it, directed the remark he did towards him. The appellant swung his left arm towards Mr Martin, struck him in the chest area, which caused Mr Martin to stumble back and fall onto a metal and timber bin causing some pain and soft tissue swelling in his lower back. It was a single blow. It was not with a closed fist. But it was unjustified and unlawful and it did cause some injury, albeit a relatively slight injury.

6. The issue before his Honour was simply what penalty should be imposed upon the appellant. It was very much a matter of discretion. The issue raised by Mr Sharman was whether his Honour should have applied s 402 (Crimes Act 1900 (ACT)). And certainly his Honour gave consideration to that submission. But his Honour's finding in relation to the facts of the matter is called into question. That finding was that the incident was an unprovoked, uncalled for assault by the appellant upon someone who was minding his own business. That is directly contrary, of course, to the appellant's evidence before me, which I accept. But it was also in the face of a statement by Mr Sharman before that comment was made, there was some ill feeling between Ms Stiles and Mr Martin that generated the ill feeling the appellant displayed on this particular night. There were some words exchanged, and he responded, he accepts, inappropriately and unlawfully, by striking Mr Martin in the chest area, clearly consistent with what the appellant has expanded on his evidence before me.

7. As I say, if it had been desired on the part of the prosecution to have disputed that then the prosecution was undoubtedly in a position to call evidence and have the learned magistrate determine any dispute that might have arisen. The fact that no such application was made would seem to indicate that the prosecution was not in a position to dispute that particular assertion and there is no particular reason I can see why his Honour should not have accepted it.

8. In that sense there is an error demonstrated in the sentencing process. The next question is what should be the response. First, it must be said that the incident was not a particularly violent one. There was some violence which was inappropriate and unacceptable, but it did not involve the use of any weapons or indeed any prolonged application of force. The force used was minimal, though not trivial. In ordinary circumstances it would have been called a shove, I suppose, but it was still an assault.

9. The appellant pleaded guilty at an early point in time, that much was conceded by his Honour. And, of course, he was remorseful for his actions. That was also conceded. His referees think highly of him and, indeed, having read those character references I can only agree with that. They are references of a positive nature. So it is not simply his absence of prior convictions which is available to be called to his aid but also positive evidence of good character.

10. It seems to me that in all the circumstances it would have been appropriate to have accepted the submission Mr Sharman made and, on this appeal, I propose to do so. There is to be a finding of guilt on a plea of guilty but no further finding or penalty is to be imposed and no conviction recorded upon the appellant entering into recognizance himself in the sum of $500 to be of good behaviour for a period of 12 months.

11. The order as to court costs and criminal injury compensation levy $50 remains. I do not know whether it has been paid or not, probably not. But it was asked for within 28 days on that occasion. I will grant 28 days from today for the appellant to pay that sum of $104.

12. The appellant will have to enter into the recognizance of course and if you conform to the terms of it, which I assume you will, at the end of the 12 month period there will have been no conviction recorded.

13. As a matter of discretion, as you say Mr Whybrow, an order for costs is applied for but I decline to make any order for costs in these proceedings.

14. The appeal is allowed to the extent to which I have allowed it and the appellant can attend upstairs to sign the amended recognizance.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the respondent: Office of the Director of Public Prosecutions