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[2013] TASMC 35
Magistrates' Court of Tasmania
2013-08-08
Original judgment source is linked above.
Hickman v Devine [2013] TASMC 35
Criminal law Particular offences - Offences against the person - Assault - Circumstances of aggravation and aggravated assaults- Meaning of "assault of an aggravated nature" in s35 (2) Police Offences Act
Cure v Smith [1951] TASStRp 3; (1951) Tas SR 5; Ex Parte Little (1874) 12 S C R (NSW) 323; Buckle v Josephs [1983] FCA 108; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Wong v Kirkham [1989] TASSC 56 referred to
1. The defendant is charged with two counts of common assault contrary to section 35 (1) of the Police Offences Act, 1935 ("the Act")
Breach Of: Section 35(1) Police Offences Act, 1935
Particulars: You are charged with on 24 December, 2012 at Bridgewater in Tasmania, unlawfully assaulting J (a youth) by punching him twice to the head and kneeing him once in the face.
Breach Of: Section 35(1) Police Offences Act, 1935
Particulars You are charged with on 24 December, 2012 at Bridgewater in Tasmania, unlawfully assaulting J by throwing him into a sign, punching him 3-4 times in the head area and kicking him once to the head and upper body.
4. After the defendant pleaded guilty, the prosecutor submitted that the assault upon J should be considered to be an assault of an "aggravated nature" such that the defendant should be liable to the higher maximum penalty as set out in section 35 (2) of the Act.
5. Section 35 of the Act reads as follows:
Section 35: Common assault and aggravated assault
(1) A person shall not unlawfully assault another person.
(1A) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months.
(2) Where any person is charged with having unlawfully assaulted any other person, the court, if it considers the assault is of an aggravated nature, may sentence the offender to pay a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years.
(3) A person who with indecent intent assaults any other person is liable to a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years.
(4) If on a complaint under subsection (3) the court finds the assault proved but not the intent, it may amend the complaint to one under subsection (1) for the same assault and convict accordingly.
(5) A complaint made for the purposes of the Justices Act 1959 in relation to an offence under subsection (3) is to be made within 12 months after the date of the offence.
6. The phrase "aggravated nature" is not defined in the Act or any other Act.
7. The prosecutor, Ms Hickman, particularised the assaults by the defendant to be of an "aggravated nature" by reason of the following:
Count 2- that J was a 15 year old youth, and that the defendant had returned to assault him on a second occasion.
8. The prosecution should as a matter of course particularise the aggravating factors as part of the charge. See Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Evatt J; Wong v Kirkham [1989] TASSC 56 at para 12. The particulars in this type of offence serve as an important notice to the defendant that certain features are alleged that, if proved, will increase the limit of the court's sentencing power.
9. The facts surrounding the assaults were as follows:
10. As stated, this phrase is not defined. The penalty for such an assault is a fine of over double that for common assault. The term of imprisonment specified is 2 years, as opposed to the maximum of 12 months for common assault.
11. In 2009 sections 35 (2) and (3) of the Act were amended so that the offences of aggravated assault and assault with indecent intent would apply to all categories of victims, rather than only to victims who were female or children aged 14 years or under.
12. Whilst it is permissible in these circumstances to consider the second reading speech and clause notes for the amending Bill, they are of little assistance. Clause notes indicate that that the exclusion of male victims from sexually oriented offences is considered obsolete, and that the Bill amends this provision to include male victims, and remove the age restriction relating to both offences. It is further noted in the second reading speech by the Honourable Jim Cox M P that "this amendment recognises that there are incidents occurring in our neighbourhoods involving male on male behaviour that is both inappropriate and uncalled for".
13. Parliamentary records for the enactment of the original section do not assist in interpreting this phrase.
14. Even when these provisions were in their original form the court was still required to exercise discretion as to whether the assault was of an aggravated nature. This discretion however could only have been exercised in respect of assaults upon females, and children under the age of 14 years.
15. In Cure v Smith [1951] TASStRp 3; (1951) Tas SR 5 Morris CJ dealt with the relationship between the offences of aggravated assault and indecent assault in the Act, and whether circumstances of indecency could be the means of aggravating an assault. His Honour reviewed the conflicting decisions in this regard.
16. In respect of the offence of common assault generally, Morris CJ cited the case of Ex Parte Little (1874) 12 S C R (NSW) 323 where it was held that an assault of an aggravated nature must be something physically serious; and that a common assault does not become an aggravated one by being committed at night or by being accompanied by low abusive and insulting words; there must be some physical injury.
17. In Little Martin C J stated "the mere pushing of this woman away from the house did not in my opinion amount to an aggravated assault." In the same case Faucett J stated that to constitute an aggravated assault some undue degree of violence and physical injury must be committed. In Cure v Smith Morris CJ also referred to the judgment of Hargrave J who was in the minority in the case of Little. Hargrave J stated that in considering whether an assault is aggravated all of the surrounding circumstances must be considered. He stated that under some circumstances what would be a common assault could under others be an assault of a most aggravated nature.
18. It was also recognised by Morris CJ, citing Ex Parte Jones (1877) Knox 263 that the case of Little did not go to the length of holding that there can be no aggravation but physical violence. It was only decided in that case that the violence was not sufficient to constitute an aggravated assault.
19. Morris CJ concluded by holding that aggravated assault means "aggravated qua assault", that is "aggravated in respect of force or violence". He also found that mere indecency not having the effect of aggravating in respect of force or violence is not aggravation by virtue of the definition.
"In elaboration, I repeat what I said earlier, that where circumstances show an assault and indecency the fact that the seriousness of the defendant's whole conduct is rendered greater or "aggravated" by the presence of the indecency, will not justify a finding of aggravated assault unless the conduct aggravates the assault within the meaning of proposition 1 (aggravated in respect of force or violence). Highly indecent things may be done by conduct the very antithesis of violence - conduct which may be a technical assault but is more in the character of a caress. If it is the indecency which is sought to punish, the charge should be indecent assault, for in such a case a finding of aggravated assault would not be permissible."
20. The meaning of "aggravated assault", where the circumstances of aggravation are not defined, has been considered in only a few subsequent authorities. This may be because, taking the Criminal Code as an example, many of the crimes containing an element of "aggravation" are crimes where the particular circumstance of aggravation are specifically defined. For example, aggravated burglary relates to the entry into a dwelling house; aggravated robbery relates to robbery armed with a weapon; aggravated assault is committed where a person assaults with intent to commit a crime.
21. In other jurisdictions circumstances of aggravation are also statutorily defined. For example under the Summary Offences Act 1966 (Vic), section 24 still provides that the threshold test for assault of an aggravated nature is that the victim is a female or a child under 14 years. That provision also provides for higher penalties for assaults taking place where the defendant is in the company with any other person, where the assault occurs by kicking, or where the assault is with any weapon or instrument.
22. In Queensland, the Criminal Code Act 1899, section 61J defines circumstances of aggravation in relation to aggravated sexual assault to include the offender being in the company of another person, the offender threatening with an offensive weapon, the victim being under the age of 16 years, the victim having a serious physical disability or cognitive impairment.
Warner, at p295 of her text Sentencing in Tasmania (2nd Ed), sets out a summary extracted from the authorities, of general matters that aggravate an assault. She states that the use of a weapon is an aggravating factor. The nature of the weapon and its potential to inflict fatal injuries is important, as well as actual injuries inflicted, both physical and psychological. Warner states further factors as follows;
"Disparity in size may be a relevant factor so, where an offender was tall and solid and the victim was a jockey, this was aggravating. If the attack is cowardly, such as when the victim is attacked from behind, this is aggravating. The position held by the complainant may be relevant if the assault was committed in the course of the complainant's employment. Therefore, in cases where a bus driver, a dog control officer and a football umpire were assaulted while exercising their duties, this fact was regarded as aggravating. The fact that an assault was part of a group attack is an aggravating factor and it is relevant to culpability if others in the offender's group were contemporaneously involved in acts of violence. The presence of young children and their distress is an aggravating factor. Provocation is a mitigating factor in cases of assault. Contempt for the victim is an aggravating factor. Leaving victims to their fate is also aggravating."
23. Counsel for the defendant, Mr Rainbird, similarly submitted that examples of other circumstances of aggravation might be a racially motivated assault or where a more serious injury or unconsciousness arises.
24. The case of Cure v Smith was considered and applied by the Full Court of the Federal Court in Buckle v Josephs [1983] FCA 108. This case dealt with an assault by throwing a billiard ball towards a victim at short range, albeit the ball not making contact with the victim's body. That case dealt with Northern Territory legislation not dissimilar to the current provisions under consideration. The Court stated that aggravated assault is common assault with some circumstances of aggravation which the legislature regards as rendering the offence more serious. The legislation in that case provided circumstances of aggravation to include offences of a sexual nature, unlawful assaults on children under the age of 17 years or unlawful assaults on females. The court held that as the definition was simply inclusive it there were of many circumstances that might constitute circumstances of aggravation in addition to those specified in the provision - for example, an assault with an iron bar or a sharp instrument. The court held that the first instance judge did not err in finding that the throwing of the billiard ball from short range was a "circumstance of aggravation" justifying the higher maximum penalty.
25. In Buckle v Josephs the court stated that "'circumstances of aggravation' is an expression incapable of comprehensive inflexible definition. It reflects the legislature's concern to authorise the imposition of a greater punishment on summary conviction for common assault than would otherwise be the case. The circumstances must be such as to increase the gravity of the offence."
26. Therefore in assessing whether the assaults in this matter are aggravated assaults I apply the principles in Cure v Smith and Buckle v Josephs. I have already set out some circumstances that have been recognised in the authorities as being aggravating factors in an assault. Such factors may be present in any one case to a greater or lesser degree and hence the need for a flexible approach, based upon all of the circumstances, to determine if the charge is sufficiently aggravating to justify the higher penalty. It would appear that parliament intended such a flexible approach in the discretion approach by leaving the matters of aggravation undefined in the section. I also note in the present matter that each charge must be considered separately in respect of such aggravating circumstances. (see the principles in De Simoni (1981)147 CLR 383)
27. Mr Rainbird submitted that there were no features of either assault that would allow the court to find that it was of an aggravated nature. He submitted that the charges were "run-of-the-mill" charges of common assault. He further submitted that whilst J was a youth, he was not a child of "tender" years. He submitted that there were no serious injuries sustained or any weapon wielded by the defendant.
28. The court's duty is to determine whether, on the particulars stated by prosecution, and taking into account all other circumstances that shed light on those particulars, either or both of the assaults were of an aggravated nature such that either or both should be elevated such as to render the defendant subject to the significantly higher maximum penalty as is specified in section 35 (2) of the Act.
29. In the present case J did suffer injuries, being several areas of bruises, grazes and swelling, including to the head. The force used to inflict those injuries was significant in each count of common assault. J was a 15-year-old youth accompanied by a companion. He possessed a pocket knife. The defendant was in company but the defendant's companion broke up the altercation on each occasion, rather than encouraged it. The defendant was not armed with a weapon.
30. I do not consider in these charges that the fact that J was a youth, as a single factor, would necessarily elevate either assault to being one of an "aggravated nature". I have no evidence that there was a significant disparity between the size of the defendant and the size of the victim. There was an age difference of only five years between the victim and the defendant. Both parties were in a public place in the early hours of the morning, each in company, and both engaged in some initial provocative words. The victim was armed with a pocket knife for his protection. This is therefore not a case where hallmarks of particular vulnerability surrounding the youth of the victim were present.
31. Whilst the degree of force applied to J on each occasion was not part of the particulars of aggravation, the type of assault suffered by him is clearly relevant to the court's consideration.
32. In respect of Count 1, the force involved initial punches to J's face. The defendant did not approach him from behind or in a random attack. The defendant desisted, albeit with the intervention of his cousin. The 2 punches were to the head, and the fact that J was kneed to the head is also an aggravating factor. However, the injuries arising from this were limited to bruising and swelling. Notwithstanding several forceful blows, the charge is indistinguishable from many that come before the court as serious examples of common assault. It is without those particularly aggravating features, or any combination of them, that would in my view elevate it to an "aggravated assault".
33. Count 2, in particular, involving a kick to the head, is a serious example of common assault. Again the injuries were bruising, grazing and swelling. The fact that the defendant returned to J to assault him was due to the realisation that he had a stab wound inflicted by J. This of course does not justify the assault in any way but it is relevant to the defendant's reasons for returning. Again I am not satisfied that this is an assault of an aggravated nature.
34. Both charges in my view should therefore properly be seen as charges of common assault punishable with regard to the lower maximum penalty.
Hickman
Devine [2013] TASMC 35
(1937) 59 CLR 467