"The facts are at 4.15pm on Saturday the 22nd of April last

the complainant, Kenneth John McGinniss, finished umpiring an

amateur football game at Kensington Park at New Norfolk. He

commenced walking off the ground with fellow umpires when he

was approached by several persons who had entered onto the

oval immediately after the game. One of the persons was this

defendant. He verbally abused the complainant umpire, pushed

him in the upper body and punched him on the side of the face

with a clenched hand. As a result the complainant fell and

had to be assisted from the ground, and in fact was conveyed

to hospital by ambulance. He received a cracked jaw from

being assaulted in the manner described. He was spoken to by

police, the defendant, on the day and he was interviewed on

video whereby he admitted the assault. He has prior matters,

Your Worship. He can't remember the last incident, Your

Worship, but it's a traffic matter, which is not relevant."

2. Asked by the learned magistrate if he wished to make an explanation, the applicant, who was then unrepresented, said (inter alia):

"I'd had a few drinks and he reported me brother, ... and I

just, I don't know - I was pretty intoxicated, and I just

went out and hit him."

Asked why he had hit the complainant, the applicant said:

"I don't know; because he was mouthing off at first, when I

walked past him. I called him an idiot, and he turned around

and blew me a kiss and said 'If you want to have a go, have a

go.' So I went up and pushed him."

3. When asked why he had called the complainant an idiot the applicant responded, "Because he couldn't umpire a little league I said." The applicant informed the learned magistrate that he was a member of the relevant football association and, that in respect of this incident he had been banned from playing football for fifteen years. He also gave details of his present circumstances, including his age, 18 years, and that he was unemployed and living with his mother. Asked if he wanted to say anything more about the matter the applicant said, "Just I regretted it after I done it."

4. The learned magistrate remanded the applicant in custody and called for a pre-sentence report. A written report was provided and this was before the learned magistrate when the applicant appeared for sentence on 14 August. On that day the applicant was represented by counsel. The pre-sentence report was not challenged.

5. The applicant now seeks to review the sentence imposed by the learned magistrate on the following grounds:

"1 The learned Magistrate erred in fact and/or in law in

finding that the applicant had assaulted the complainant from

behind him.

2 The learned Magistrate erred in law in failing to give

any or any sufficient weight to:-

(a) the penalty imposed by the football tribunal upon the

applicant of 15 years disqualification from playing football

with the Football League;

(b) the fact that the assault was provoked by the

complainant.

3 The learned Magistrate erred in law in imposing a

sentence that was manifestly excessive."

6. At the hearing before me on 27 September 1995 two additional grounds were added as follows:

"1A The learned Magistrate erred in law in failing to make

findings of fact upon which he could properly exercise his

discretion to impose sentence upon the Applicant.

1B The learned Magistrate erred in law in making findings

of fact which were contradictory in that the learned

Magistrate on the one hand found that the assault occurred

from behind whilst on the other hand appeared to find that

the assault occurred whilst the Applicant and others were

facing the complainant and other umpires."

7. Counsel for the respondent admitted that the error alleged in ground 1 had in fact been made by the learned magistrate but submitted that there had been no miscarriage of justice.

8. The learned magistrate's comment when passing sentence was, "Your assault on him, coming as it was, I understand, from behind, was both cowardly and vicious and obviously very serious ...". This inference appears to me to have been based upon the applicant's description of the way the assault occurred. He approached the umpire who was leaving the ground and walked past him. As he did so he abused him. The umpire "turned around" and responded as described above. The applicant then "went up" and pushed him and punched him. This suggests to me that the applicant had to retrace his steps to some extent. There was nothing in the stated facts to suggest that the complainant defended himself or attempted to do so. He may have turned back to face the way he was walking. The punch to the side of the jaw is consistent with this. I must confess that the overall picture conveyed to my mind by the admittedly sparse description provided by the applicant is much the same as that conveyed by the learned magistrate's comments, although, upon closer analysis of what was said, this conclusion may be equally consistent with the parties having been face to face or side on to each other at the time of the assault.

9. The learned magistrate's comment that the attack was "cowardly" suggests that he took the view that the complainant was unaware of the impending assault. If he drew this conclusion, and I think he did, then he appears to have drawn an unwarranted conclusion from what he was told, and on this basis the error of fact alleged in ground 1 is established.

10. However, counsel for the respondent submits that this is a case in which the Justices Act 1959, s110(2)(ab) should apply and that, despite the error identified in ground 1 of the appeal, the motion to review should be refused. In short, she says, regardless of the learned magistrate's implicit finding that Mr McGinniss was unaware of the impending assault, the attack upon him was such that the penalty was clearly appropriate and therefore there was no miscarriage of justice. It seems to me that such a conclusion would require affirmative satisfaction on my part that the sentence imposed was correct in the circumstances rather than my simply concluding that it was not manifestly inadequate.

11. Counsel for the applicant did not contend that there were any fresh or additional circumstances which should be taken into account in assessing penalty other than those which were considered by the learned magistrate. I will return to this issue after considering the other grounds of appeal.

12. Grounds 1A and 1B were argued on the basis that the facts as stated by the prosecutor were at variance with those stated to the learned magistrate by the applicant and that therefore sworn evidence should have been taken to resolve the conflict. Whilst the principle is sound, the facts do not support the applicant's argument. His version of events was clearly accepted by the learned magistrate although his Worship may have reached an unjustified conclusion as to the relative positions of Mr McGinniss and his assailant when the blow was struck. The fact remains however, that none of what the applicant said was rejected. It was accepted at face value. There is simply no substance to grounds 1A or 1B, in my opinion.

13. As to ground 2(a), it is quite clear from the learned magistrate's comments on passing sentence that he took account of the disqualification imposed by the applicant's football association and there is no basis for saying that he failed to give it any weight or sufficient weight unless that conclusion necessarily follows from the severity of the sentence imposed. This issue was raised by ground 3 and will be dealt with under that ground.

14. Ground 2(b) is based on the proposition that the umpire's gesture and comment amounted to provocation. As pointed out by Clarke J in Unal Okutgen (1982) 8 A Crim R 262 at 264, "provocation" as an element going to mitigation of penalty in a case of assault, does not bear the special technical meaning assigned to it for the purposes of the law of homicide, but I still have difficulty in appreciating how the umpire's reaction to the applicant's belligerence and abuse can be regarded as provocation in any real sense of the word. It would be unrealistic to expect him to ignore the applicant altogether. It was not claimed that he "shaped up" or made any threatening gesture to the applicant. It is not even clear that he was inviting the applicant to try to strike him, although by her submissions to the learned magistrate on 14 August, counsel for the applicant appeared to suggest that this was her client's belief at the time.

15. It is possible that the umpire was suggesting that the applicant should have "a go" at umpiring. The applicant was plainly the aggressor in the situation which existed and it seems highly likely, in view of his initial words to the magistrate on 8 August, and his counsel's submission on 14 August, viz, that he was "urged on by the crowd" that his purpose from the outset was to assault Mr McGinniss and to provide colour of justification for doing so by attempting to provoke Mr McGinniss to fight. In such circumstances it is plainly ridiculous to characterise Mr McGinniss' non violent response as "provocation".

16. The learned magistrate did not specifically deal with the submission by counsel for the applicant that her client had been provoked but in my opinion he was not obliged to do so. If he gave the submission any weight it was more than it deserved. In my opinion ground 2(b) fails.

17. The final ground (ground 3) claims that the sentence imposed was manifestly excessive. I turn therefore to consider this question.

18. The applicant has previously appeared in the Children's Court in January 1991 on a charge of assault in respect of which he was admonished and discharged. He has many more convictions for drink related offences and offences of dishonesty.

19. In February 1995 he was fined in the Court of Petty Sessions for being drunk and disorderly and for resisting arrest. He is aged 18 years and has not previously been to prison. According to the pre-sentence report he suffers from depression and anxiety but I am quite unable to say that the sentence imposed by the learned magistrate was excessive.

20. This was an assault causing substantial injury to a football umpire. Such officials are in a vulnerable position, both when officiating and when leaving the ground. They are not fair game for drunken or disgruntled spectators who may dislike the way the game has been controlled. Many of them perform their somewhat thankless task voluntarily and without expectation of reward.

21. In my opinion, the applicant's conduct was quite outrageous and merited an immediate custodial sentence as a deterrent to other potentially violent football fans. It would have been quite inappropriate to wholly suspend the sentence. To do so would have been to remove its general deterrent purpose (Reg v Percy (1975) Tas R 62).

22. The learned magistrate paid proper regard to the prospect of rehabilitation by suspending the greater part of the sentence upon the terms which he did. The fact that the applicant was suspended from playing by the relevant football association for fifteen years which, in the circumstances, is equivalent to a lifetime suspension, is obviously something to be taken into account, but a decision by such a regulatory body cannot displace the role of the courts in denouncing and punishing violence of this kind. This was not a scuffle between players in the course of a game. It was a serious assault upon an official by an onlooker. The applicant's likely future as a player was not explored or explained. It was not suggested that he had particular talents which would have marked him out as a future champion. I cannot conclude that his suspension of itself amounted to a particularly severe penalty.

23. I return therefore to consider whether or not the proviso contained in the Justices Act 1959, s110(2)(ab), should apply in this case. I have already commented upon the seriousness of the assault and the need for a deterrent penalty.

24. The only factor in the sentence which has caused me to pause before endorsing the sentence imposed as entirely appropriate, and therefore one which should be confirmed by dismissing the motion, is the order requiring the applicant to perform community service as well as serving an actual custodial sentence.

25. Counsel for the applicant did not seek to argue that such an element in the sentence of itself rendered the sentence excessive or erroneous. Whilst unusual, it seems to me that to structure a sentence this way is not in breach of any sentencing principle and I note here that I myself have imposed a similarly structured penalty on some occasions in the past. In each such case I have been confronted with a young offender with prior convictions who has committed a serious offence meriting a substantial custodial sentence, but who has had some prospects of rehabilitation. In such circumstances I have considered that those prospects can be reinforced in an appropriate subject by not only suspending the greater part of the imprisonment and placing him under supervision, but also by focusing his attention upon the positive benefits of social reintegration which are likely to result from a brief contribution of service within the general community.

26. Having carefully considered what the very experienced magistrate handling this case did on this occasion, I am affirmatively satisfied that the sentence which he imposed was completely justified.

27. I am of the view that the unsubstantiated inference which he drew as to the complainant's lack of awareness of the forthcoming assault can have played little, if any, significance in his assessment of the punishment which, in my opinion, should be confirmed. There has been no substantial miscarriage of justice.