Ostojic v Threlfo [2016] NTCA 1

Sentencing Act s 8, s 16(2)(b).

Carnese v The Queen [2009] NTCCA 8; Hales v Adams [2005] NTSC 86; R v McInerney (1986) 42 SASR 111; Toohey v Peach [2003] NTCA 17, applied.

Respondent: Office of the Director of Public Prosecutions

Ostojic v Threlfo [2016] NTCA 1

[1] On 12 February 2016 we heard the appeal in this matter. At the conclusion of the hearing we dismissed the appeal save for Ground 5 which was conceded. These are our reasons.

[2] On 2 March 2015, following a short trial in the Court of Summary Jurisdiction, the appellant was found guilty of assault upon a female. He was found not guilty of driving in a manner dangerous. At the same time he pleaded guilty to having caused damage to property. On 4 March 2015 he was convicted on each count and, in relation to the offence of causing damage to property, was sentenced to 56 hours of community work. In relation to the assault he was fined $3000.

[3] The appellant appealed to the Supreme Court challenging the finding of guilt and conviction in relation to the assault and, further, claiming each sentence was "in error and manifestly excessive". On 10 November 2015 the appeal was dismissed. The appellant then appealed to this Court, effectively on the same grounds.

[4] The conduct which gave rise to the charges occurred on 27 May 2014. At about 6 pm on that day the complainant, a 27-year-old female who was at the time pregnant, was driving inbound along Tiger Brennan Drive with her 15-month-old son in a child seat in the rear of the vehicle. She was intending to turn right from Tiger Brennan Drive into Bowen Street in Winnellie. The appellant was driving his vehicle on the same road and in the same direction. He perceived that the complainant had cut him off as two lanes of traffic merged and he thereafter drove his vehicle closely behind her vehicle. She felt intimidated by his aggressive driving and stuck her finger up at the appellant. When she moved her vehicle to turn into Bowen Street the appellant drove his vehicle in front of her vehicle, "braked hard" and stopped in front of her. Her vehicle was blocked at the front by his vehicle and there was traffic proceeding in both directions on either side of her vehicle. She could not leave the area.

[5] The appellant then walked quickly to the complainant's vehicle to confront her. At that point he realised the complainant was a female. The complainant wound her window down a short distance in order to speak with the appellant. He said to her "nobody toots their horn at me". An independent witness, whose evidence was accepted by the presiding magistrate, said the appellant acted aggressively towards the driver of the vehicle and pulled on the window of the driver's side causing the window to shatter. This was the offence of causing damage to property to which the appellant pleaded guilty. The independent witness then saw the appellant open the door of the complainant's vehicle and gesture in an angry manner and yell at the driver. The appellant lent into the vehicle through the open door and was physically close to the complainant. There was no physical contact. The independent witness said part of the appellant's "torso was inside the car". The complainant feared for her safety because of his close physical presence and angry gesturing. The independent witness could not see the complainant but, from the actions of the appellant, was concerned that things were escalating. He described the appellant as being in an "aggravated state" and he thought there would be a "big fight". He took photographs and a short video of some of the incident.

[6] The appellant then walked back to his vehicle. The complainant took a photograph of his car for identification purposes. She gave evidence that the appellant "turned around and back to tell [me] that I could go right ahead, because he didn't care if the police had a picture of him". He then drove off. He drove to the Darwin Police Station where he made a statement.

[7] The appellant was described as being six-foot 3 inches tall and weighing 115 kg. He gave evidence in which he acknowledged that he swore at the complainant and that he was yelling as he approached her vehicle.

[8] In finding the appellant guilty of the offence of aggravated assault the magistrate accepted the evidence of the independent witness. Her Honour found that the appellant was aggressive and angry and rejected the appellant's evidence to the contrary. Her Honour found there was a threatened application of force to the complainant evidenced by the physical actions of the appellant which occurred in an aggressive and angry manner while he was in close proximity to the complainant. This was accompanied by his proclamation that "nobody toots their horn at me". The complainant sought to protect herself by trying to close her window before it was broken. She feared for her safety. The evidence of the independent witness made clear the seriousness of the situation.

[9] In sentencing the appellant, and in particular imposing a conviction on each count, the magistrate took into account the circumstances of the appellant, the nature and circumstances of the offending and the matters identified in s 8 of the Sentencing Act. Her Honour accepted that the appellant was a man of prior good character but noted he had harassed and intimidated a pregnant woman and indicated that a strong message had to be sent to the appellant and the community that the appellant's behaviour was totally unacceptable.

[10] The magistrate observed that she had given serious consideration to imposing a term of imprisonment but had decided to impose a fine because of his standing in the community and his continued good works.

[11] In the appeal to the Supreme Court the appellant argued that the evidence was insufficient to support a finding beyond reasonable doubt that the appellant assaulted the complainant. On appeal the presiding judge noted that the magistrate had drawn an inference that the complainant was in fear for her own safety and observed this was not a relevant consideration and constituted a misdirection as to the proper interpretation and application of s 187(b) of the Criminal Code. His Honour went on to observe that the relevant question "was not whether the complainant was put in fear but rather whether the defendant had the present ability - actual or apparent - to make good the threatened application of force". The threatened application of force could be by bodily movement.

[12] The judge reviewed the whole of the evidence and the findings of the magistrate and concluded that "the evidence established beyond reasonable doubt that the (appellant) intentionally threatened to apply force to the complainant without her consent". His Honour said:

In my opinion, the point in time at which the offence of assault was "complete" was when the appellant, having broken the complainant's driver's side window and positioned himself in the space between the open door and the body of the vehicle, then went partly into the driver's compartment, gesturing and yelling. There is no doubt that he then had the actual or apparent present ability to apply the threatened force, given his most extraordinary intrusion into the complainant's personal space and the absence of any physical barrier between them.

[13] The judge also reviewed the materials related to the recording of convictions and concluded that the appellant had not demonstrated error in the exercise of the sentencing discretion or that the imposing of convictions made the sentences manifestly excessive.

[14] The appellant appealed to this Court against the finding of guilt in relation to the assault and in relation to the sentences imposed in the Court of Summary Jurisdiction.

[15] In relation to the finding of guilt it was submitted that the magistrate erred in her interpretation of s 187(b) of the Criminal Code in relation to the meaning and interpretation of the threatened application of force for the charge of aggravated assault. Further, the appellant argued that the judge on appeal applied the wrong test in failing to allow the appeal from the court below. The relevant provision of the Criminal Code is as follows:

(b) the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words;

[16] It was submitted on behalf of the appellant that, in the courts below, the wrong test was applied. It is therefore necessary to examine the approach in the Supreme Court. The judge identified the approach to be adopted in the following passage:

[20] In order to find the appellant guilty of the charge of assault in the circumstances of the present case, where: (1) the prosecution relied on s 187(b) Criminal Code; (2) the prosecution confined itself to alleging a threatened application of force rather than an attempted application of force; and (3) there was no evidence of any specific threatening words, the magistrate had to be satisfied beyond reasonable doubt of the following elements:

1. The defendant threatened to apply force to the complainant without her consent, such threatened application of force evidenced by the defendant's bodily movement(s).

2.1 The defendant intended to threaten to apply force to the complainant.[1]

2.2 Alternatively to 2.1, if the defendant did not intend to threaten to apply force to the complainant, the defendant foresaw that his conduct would possibly result in a threat to apply force to the complainant,[2] and an ordinary person similarly circumstanced and having such foresight would not have proceeded with that conduct.[3]

1. The defendant had an actual or apparent present ability to apply the threatened force.

[17] The appellant accepted this to be a correct statement of the applicable law in the circumstances of this matter however argued that it was not properly applied by his Honour. In relation to the first proposition it was submitted by the appellant that "without the (appellant's) bodily movements evidencing his purpose, he could not be convicted" and that "the bodily movements are a prerequisite to a finding of guilt, but do not, merely by their existence, prove the requisite intent to threaten to assault". In fact his Honour found the necessary intention was demonstrated by the appellant "in everything he did" and that the evidence established beyond reasonable doubt "that the (appellant) intentionally threatened to apply force to the complainant without her consent" and the "threatened application of force was evidenced by the (appellant's) bodily movements from the time he alighted from his vehicle" and did each of the acts identified above under the heading "the offending conduct". His Honour referred to the appellant having: positioned his vehicle so that the complainant could not leave; approached the complainant's vehicle in an aggressive manner; physically damaged the driver's side window causing it to shatter by applying force to it with his hands; opened the door when it was quite unnecessary to do so to carry on a conversation; positioned himself inside the door in very close proximity to the complainant; and then gesturing and yelling at her after having undertaken each of those steps.

[18] The appellant argued that there was no evidential basis for a conclusion that the appellant was yelling whilst he was partially inside the vehicle. Whether there was yelling by the appellant within the vehicle really does not matter as it is acknowledged that there was yelling both before and after that short moment.

[19] His Honour concluded that this evidence established beyond reasonable doubt that the appellant intentionally threatened to apply force to the complainant without her consent by, at least, physical touching if not pushing or striking. The evidence of the independent witness supported the conclusion by describing the appellant's conduct as suggesting there would be an altercation or a "big fight". It was not disputed that a person's intention may be inferred from their actions. At that time the appellant had the actual ability to apply the threatened force.

[20] In our opinion no error on the part of his Honour has been identified. The appellant was clearly very angry with the complainant and his actions went well beyond mere strenuous remonstration. If he was only remonstrating with the complainant there was no need to break the driver's side window and, having done so, there was no need to open the driver's door and partially enter the vehicle. There was a strong evidential basis for finding beyond reasonable doubt that the appellant did intend to threaten to apply force to the complainant. The elements of the offence of assault were established by the evidence adduced.

[21] In relation to the second element (2.2) it is not necessary to address this issue in light of the conclusions we have reached that the appellant intentionally threatened to apply force to the complainant without her consent.

[22] In sentencing the appellant the magistrate imposed convictions in relation to the offences of having damaged the window of the motor vehicle and having assaulted the complainant. In so doing her Honour had regard to the provisions of s 8(1) of the Sentencing Act which provides:

In deciding whether or not to record a conviction, a court must have regard to the circumstances of the case including:

(a) the character, antecedents, age, health or mental condition of the offender; and

(b) the extent, if any, to which the offence is of a trivial nature; and

(c) the extent, if any, to which the offence was committed under extenuating circumstances.

[23] The authorities in relation to the decision to record a conviction are not in dispute. A conviction is "a formal and solemn act marking the court's and society's disapproval of a defendant's wrong doing".[4] The recording of a conviction may be necessary "where the offender is of mature age and deterrence is being given weight".[5] The matters to be considered are not confined to those enumerated in s 8 of the Sentencing Act and the whole of the circumstances of the case must be taken into account.[6]

[24] The magistrate accepted that the appellant was a man who contributed to the community and was of good character and that he was acting out of character at the time of the offending. However her Honour went on to consider the nature of the offending in all the circumstances along with the effect of the offending upon the victim and concluded, in the exercise of the sentencing discretion, that convictions should be recorded. The effect of the offending upon the victim was significant. The appellant had harassed and intimidated his pregnant victim who was subsequently conveyed to Royal Darwin hospital to undergo checks to ensure her unborn child was not at risk. The appellant may not have known that his victim was pregnant but he proceeded with his unreasonable and unacceptable conduct without thought or regard as to who his victim was or as to the condition of that person. Following the incident the victim suffered ongoing stress with disturbed sleep. She restricted her driving to necessary occasions and often had to be driven by her partner. At the time of sentencing the offending continued to have an emotional impact upon her. The impact of the offending upon the victim was, of course, a factor to be given consideration in determining an appropriate sentence.

[25] We would add that this assault was not trivial. The appellant deliberately threatened the complainant and persisted in his threatening behaviour for a considerable period of time. He is a mature adult who chose to engage in the threatening conduct. Such crimes are of a kind that cause considerable alarm to other motorists. The objective seriousness of the appellant's crime outweighed his personal characteristics which might otherwise have resulted in a non-conviction. There was no excuse for his conduct.

[26] In our opinion the magistrate had regard to all of the appropriate considerations. Her Honour considered each offence in its overall context. Whilst bearing in mind the mitigating factors placed before the court it was necessary for her Honour to impose a sentence which gave emphasis to punishment, denunciation and general deterrence. Such conduct is, unfortunately, not uncommon in the Northern Territory. In our opinion the recording of a conviction on each count was comfortably within the sentencing range. No error has been demonstrated in the exercise of the sentencing discretion.

[27] In the course of the appeal it was agreed between the parties that the fine of $3000 imposed by the magistrate in relation to the assault exceeded the maximum fine available. By operation of s 16(2)(b) of the Sentencing Act the maximum fine for the offence was 20 penalty units. As at the relevant date a penalty unit in the Northern Territory was valued at $149, although that figure has subsequently been amended. The maximum fine at the time was therefore $2980. In the circumstances we allow the appeal to this extent and amend the fine to the sum of $1500 with a victims levy of $150.

[28] In all other respects the appeal is dismissed.

[2] Criminal Code s 31(2) is prefaced: "A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and the particular act, omission or event occurs ... ".

[4] Carnese v The Queen [2009] NTCCA 8 at 16; R v McInerney (1986) 42 SASR 111 at 124.

[5] Hales v Adams [2005] NTSC 86 per Southwood J.

[6] Toohey v Peach [2003] NTCA 17.