Robinson v Smith [2005] WASC 99

Criminal law - Appeal - Appeal against conviction - "Bodily harm" - Appeal against sentence - Sentence of imprisonment - Whether sentence manifestly excessive

Criminal Appeals Act 2004

Justices Act 1902

Brown v Blake [2000] WASCA 132

Scatchard v The Queen (1987) 27 A Crim R 136

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Blackstock v Foster (1958) 58 SR(NSW) 341

Gardner v Caporn [2004] WASCA 14

R v Harm (1975) 13 SASR 84

R v Inch (1990) 91 Cr App Rep 51

Smejlis v Matthews [2004] WASCA 158

1 JENKINS J: This is an appeal from the decision of a Magistrate sitting in the Court of Petty Sessions at Kalgoorlie on 15 February 2005. On complaint number 4156 of 2004, being a charge of assault occasioning bodily harm, the Magistrate, after convicting the appellant of the offence, sentenced the appellant to imprisonment for 12 months and 1 day.

2 There is one ground of appeal against conviction being that the Magistrate erred in finding that the complainant suffered bodily harm. It is alleged, in this respect, that the Magistrate first erred in not considering whether an assault, other than that found to have been committed by the appellant, could have caused the symptoms in the complainant's throat and secondly erred in determining that those symptoms amounted to bodily harm.

3 Further, there is one ground of appeal against sentence being that the sentence was manifestly excessive. Particulars are given of this ground. These are that the Magistrate should have taken into account the appellant's lack of relevant prior convictions and the minor nature of the assault. On the other hand, it is alleged, that she was in error in taking into account the psychological trauma caused to the appellant and the community expectations in relation to the other assaults perpetrated on the complainant immediately after the appellant's assault. Consequently, it is said, a fine or non-custodial penalty should have been imposed.

4 The complaint alleged that on 18 September 2004 at Kalgoorlie the appellant and John Henry Sharp unlawfully assaulted Steven McNamara and thereby did him bodily harm, contrary to the Criminal Code (WA), s 317(1).

5 The appellant and his co-accused pleaded not guilty. A joint trial ensued, at the conclusion of which the appellant was convicted and sentenced as detailed previously. The complaint against the co-accused was dismissed.

6 Although the appellant and his co-accused were jointly charged, it is conceded by the respondent that the trial did not proceed on the basis that both accused were jointly liable for each other's actions or that either were liable for the actions of any unidentified offenders. Although it was not made clear by the prosecutor's opening remarks, it became clear during the trial that the respondent alleged that the appellant had assaulted the complainant by hitting or punching the complainant to the left side of the neck. It was further alleged that after that the co-accused had punched the complainant and the appellant then kicked the complainant whilst he was on the ground. The Magistrate found only that the appellant had hit or punched the complainant to the left side of the neck.

7 The facts that were not in dispute or were explicitly or implicitly found by the Magistrate were that in the early hours of the morning of 18 September 2004 the appellant was a patron of the Club Inn ("the Club") in Kalgoorlie. He was in company with about nine other men, who had the appearance of "bikies" although they were not wearing club colours. Whether they were or were not "bikies" was not an issue at trial and is not an issue on appeal.

8 The complainant was employed as a security guard at the Club. He was not on duty on this day. However he had dropped into the Club and noticed that that "it wasn't a nice feeling" in the Club so he went home, got changed into his uniform and returned to the Club to support the other security staff.

9 There were at least three incidents, including the assaults on the complainant, during the course of the morning in which members of the appellant's group were involved in physical altercations with other people at the Club. One incident occurred at about 6.20 am, immediately before the assaults on the complainant. This was when the owner of the bar was involved in a fight. One of the appellant's group hit him with a bar stool in one of the Club's bars. During that incident other members of the group stood around to physically prevent people from stopping the fight or to intimidate them so that they would not intervene. A couple of other security officers appeared ready to try and stop the fight but the complainant, who was caught standing inside the boundary of the appellant's group, told them or indicated to them to stand back, let the altercation finish and allow the group the appellant was with to leave.

10 The complainant then went and lent against the bar, still close to the previous altercation. He stood looking over the bar but between the appellant and his group and the door to the bar room. There is surveillance video footage of a person, who the Magistrate found to be the appellant, walking up from the side and slightly behind the complainant. The complainant's attention was drawn to him and the complainant turned towards him. Immediately, the appellant reached out with his right arm, with a swinging arm motion, and hit the complainant on the left hand side of the neck. The complainant staggered back but still stood facing the appellant. The appellant continued to engage his attention by putting his hands in front of himself as if ready to continue the assault. Whilst this occurred another member of the group walked up to the complainant and hit him twice on the body, causing him to stagger and fall to the ground, out of shot of the first video camera. A different surveillance video shot shows the complainant fall to the ground. Other members of the group stood around the appellant and the second member of the group who assaulted the complainant. After the complainant fell to the ground, the appellant and the group he was with immediately walked past the complainant and out the door. No attempt was made by any of them, including the appellant, to assist the complainant who was still lying on the ground. Rather, as they left, one of them kicked the complainant whilst he was on the ground. The Magistrate was not sure that it was the appellant who kicked the complainant.

11 The group were spoken to by uniformed police officers a short time after they left the Club. The police took their names. Then the police looked at the surveillance video footage from the Club. They made some comparisons and requested, through an intermediary, that the appellant attend at the police station. He did so, was arrested and charged. No admissions were made by him.

12 The complainant has little memory of the events in question. He recalls something on his throat "pushing in very hard", a "bit of numbness" and next minute he was on the ground. He was asked what had happened to his throat and he replied "I've got a lump left in my throat from it. Someone's put their hands around my throat". Later he said, "I felt something on my throat, somewhere in this area here, and then after that I don't remember nothing, it's you know, I've still got a big lump left in my throat permanently from it ...". Later, again in examination-in-chief he was asked to give evidence of the sequence of events after the push to his throat and he said he had no recollection after the pain in his throat.

13 The only cross-examination about the complainant's evidence of the assault to his neck and the effects of it was a suggestion to him that he did not know what he felt around his throat. The complainant replied that he had hands on his throat before and that it was definitely a hand.

14 A medical report was tendered which was written by a doctor who indicated that he was not a treating doctor. It reported that the complainant had attended the emergency department of Kalgoorlie Regional Hospital at 7.00 am the same morning. He was found to have an undisplaced fracture of his right jaw, a 1 cm laceration to his eyebrow, facial abrasions and soft tissue injury to his chest/abdomen. He spent four days in hospital. None of these injuries are attributable to the assault found proven against the appellant. It is agreed that the fractured jaw must have been the result of the kick whilst the complainant was on the ground. The complainant gave evidence of the effect of his injuries on him. He said that he had had a lot of pain in his chest, head and spine, coming from his jaw, and he had received counselling for his residual anger.

15 Immediately after conviction, the appellant's counsel made a plea in mitigation and the Magistrate proceeded to sentence. The plea focused on the appellant's personal circumstances which were that he was 41 years of age and single, although he had a "permanent relationship" of three years duration with a girlfriend. He had a 16-year-old child through another relationship and he supported that child. He had no fixed address because he lived wherever his work as a "sub-contractor in labouring and the building industry ... takes him ... ". The appellant's prior criminal record was before the Court and it showed that the appellant had a criminal record in this State dating back to 1992. In 1995 he was convicted of deprivation of liberty and sexual assault and received a total of 7 years and 10 months' imprisonment. In 2002 and 2003 he was convicted of four offences being two minor cannabis offences, disorderly conduct and breach of bail. For these offences he received fines. It was submitted that his record showed that he was not a person prone to this sort of violent offence and therefore this offence would not warrant a sentence of imprisonment. It was suggested that a fine was the appropriate penalty.

16 The prosecutor submitted that a sentence of immediate imprisonment was the appropriate penalty for this offence.

17 In her sentencing remarks the Magistrate first noted the appellant's prior criminal history and then related the facts. She discussed the appellant's injuries and the effect the various assaults of that evening had had on him. She noted that it was difficult to differentiate between the effects that the appellant's assault had on him and the effects of the other assault but that he was a person who had been "profoundly effected" by the events.

18 The Magistrate expressed the view that a fine would be inadequate by way of either general or specific deterrence. The Magistrate said that after viewing the video footage of the appellant's conduct and having regard to what "wittingly or unwittingly" followed, the community and Parliament would be of the view that general and specific deterrence were significant issues. She then said that having regard to the nature of the offence and that the complainant did nothing to warrant the assault she was going to impose a penalty of 12 months and 1 day imprisonment. She ordered that the appellant be eligible for parole but declined to suspend the sentence.

19 The appellant contends that the Magistrate failed to consider whether the lump in the throat of which the complainant complained was caused by the appellant's assault or by another person's assault, in light of the fact that the complainant had been punched twice to the face and kicked by another person whilst on the ground. Secondly, it is contended that there was insufficient evidence that the lump that the complainant complained of was "bodily harm" as defined in the Criminal Code (WA).

20 As to the first issue, there was no evidence that the complainant was assaulted to the left hand side of the neck by anybody other than the appellant. That assault is seen clearly on the video surveillance footage. It is obviously a hit of some force to the left hand side of the neck. The assaults of the second offender are also seen on the video footage. The second offender committed two assaults neither of which were to the left hand side of the neck. There appears to have only been one kick and it is apparently to the right side of the jaw. It was the right jaw that was fractured.

21 It is clear that the complainant attributed the pain in his neck and lump in his throat to the first assault on him. That is the assault that the appellant was found guilty of.

22 There was sufficient evidence for the Magistrate to find beyond reasonable doubt that the appellant was responsible for the only assault to the left hand side of the complainant's neck and that it was this assault which caused him the symptoms in that area. There was no evidence that warranted the Magistrate expressly considering whether it was possible that another assault caused these symptoms.

23 As to the second issue, the term "bodily harm" is defined in the Criminal Code (WA), s 1 to mean any bodily injury which interferes with health or comfort. In order to prove that a complainant has suffered bodily harm "two matters must be made out, the first being the existence of 'bodily injury' and the second being the fact that such established bodily injury interfered with health or comfort". A mere complaint that the actions of the offender caused "pain" satisfies the second limb of the definition but not the first; Scatchard v The Queen (1987) 27 A Crim R 136.

24 The complainant said that he had "a bit of numbness", had pain and continues to suffer from a lump to his throat. These complaints are sufficient to constitute an interference with health or comfort.

25 Heenan J considered what constitutes "any bodily injury" in Brown v Blake [2000] WASCA 132 at 5 - 6. In that case, the appellant had kicked the complainant twice to the stomach on the right side, near her ribs. In evidence, the complainant said that when she was kicked she felt pain which "lasted for a couple of days". Because of the pain she went to see her doctor on the following day, but he gave her no treatment. The medical report which was accepted into evidence made no reference to any injury in the region of that complainant's ribs or stomach. After referring to comments by Burt CJ in Scatchard, (supra), Heenan J said:

"For present purposes, I take 'bodily injury' to mean something in the nature of damage to bone, muscle, tendon, skin, organ or any part of which the human body is constructed. The word relates to more than merely a sensation of pain.

In this case the question to be answered is whether, in the light of the evidence before him and in the absence of expert evidence as to the significance of the pain of which Ms Ward complained, the learned Magistrate was entitled to infer that she had suffered damage to part of her body and not merely the sensation of pain. In my opinion the learned Magistrate was entitled to draw that inference. The available evidence was meagre, but I am satisfied that as a matter of ordinary human experience one knows that, if pain has lasted, as Ms Ward said, for a couple of days then the body has suffered damage. In such a case the pain originates from the damage and is more than merely 'a perception activated by a stimulus', the phrase used by Kennedy J in Scatchard at 138."

26 In my opinion these comments are relevant to this appeal. In this case the Magistrate noted that bodily harm could involve "psychological or other sorts of injury". The way that "bodily harm" is defined in the Code I do not accept that the term encompasses psychological injury unless a complainant suffered a physical or bodily injury which in turn affected his or her psychological state. To that extent the Magistrate erred. However, she went on to find that that the complainant suffered both psychological and "other sorts of injury". Whilst that is a vague description, it can only be a reference to a bodily or physical injury.

27 Using Heenan J's language the question for me to answer is whether, in the light of the evidence before her and in the absence of expert evidence as to the significance of the numbness, pain and lump of which the complainant complained, the Magistrate was entitled to infer that the complainant suffered damage to part of his body and not merely the sensation of a lump and pain? In my opinion the Magistrate was entitled to draw that inference. As in Brown's case the available evidence was meagre, but as a matter of ordinary human experience as the lump in the throat lasted at least up to the date of trial which was five months after the offence an inference was available that the body had suffered damage and the Magistrate was entitled to conclude that the complainant had suffered bodily harm. I am also influenced by the fact that the complainant's evidence about his injury was not discredited by cross-examination or by other evidence. Further, whilst the medical report did not mention any injury to the neck, neither was it written by a doctor who had personal knowledge of the facts and who had specifically addressed the issue of whether there was an injury to the neck.

28 For these reasons the appeal against conviction is dismissed.

29 The appellant's prior criminal history deprived him of credit he might otherwise receive for being of good character. His record was such that the principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477, being that a more severe penalty may be warranted in order to reflect the need for retribution, deterrence and the protection of society where an offender's prior criminal history shows that the instant offence is not an uncharacteristic aberration but a manifestation of a continuing attitude of disobedience of the law, was enlivened. In this respect I disagree with the appellant's counsel that the lack of prior convictions for assault meant that the appellant should be given some credit in the sentencing process. As I have said, because of his prior criminal record the appellant deservedly received no credit for being of good character. Rather his record showed that a personally deterrent penalty was warranted. It is true that his record of offending could have been far worse but what there was showed a history of offending of over 20 years. This conviction put paid to any indication in his record that he was maturing and reforming. This was a case where the Magistrate rightly concluded that personal deterrence was an issue.

30 As to the nature of the assault, it was the surrounding circumstances that indicated that it was a serious assault. These circumstances, which were all matters that the Magistrate was entitled to take into account in aggravation of sentence, included:

1. That the assault occurred in licensed premises in the presence of a number of bystanders, anyone of whom could have be drawn into the dispute;

3. It was an assault to a vulnerable part of the body;

4. It was committed on a man wearing a security officer's uniform who was trying to keep the peace in the licensed premises;

5. It followed immediately upon another assault on the proprietor of the licensed premises and thus represented an escalation of the existing violence;

6. It was committed in the presence of a group of the appellant's associates who were apparently ready and willing to protect the appellant should anybody try and stop the assault;

7. Its commission enabled the perpetrator of the assault on the proprietor to leave the hotel without being stopped by the complainant or other security officers;

8. Its commission and the subsequent preoccupation of the complainant with the appellant enabled the second offender to approach and assault the complainant without the complainant being in a position to defend himself. This in turn led to the complainant becoming vulnerable to the kick from the third offender;

9. The appellant did not stop and render assistance to the complainant; and

10. The assault resulted in an injury which was still affecting the complainant five months after the assault.

31 It would be wrong to sentence the appellant on the basis that the purpose of the assault was to enable the perpetrator of the previous assault to leave the premises or to enable others to assault the complainant. There was in my view insufficient evidence to draw the latter conclusion and the former was never an issue in the trial. However any ordinary person, including the appellant, could and should have foreseen that these other consequences could follow from his actions.

32 As to whether the Magistrate erred in taking into account the psychological trauma caused to the appellant, my opinion is that the Magistrate was entitled to consider that the appellant's conduct was part of the cause of that trauma. However, as she acknowledged it was difficult to determine how much trauma was caused by the appellant's conduct and how much was caused by the other offenders' conduct. Consequently she had to be careful not to put too much weight on the trauma. There is nothing in what she said to indicate that she did place too much weight on it.

33 Finally, it is alleged that the Magistrate placed too much weight on the "community expectations" in relation to the other assaults perpetrated on the complainant immediately after the appellant's assault. I note that the complaint is not that "community expectations" were irrelevant but rather that the Magistrate placed too much emphasis on the subsequent assaults. Whilst the other assaults were mentioned by the Magistrate I do not accept that she was indicating that the appellant should be punished for those assaults as if he was directly liable for them. She was careful to point out that she had only found that he had punched or struck the complainant on the throat. It was appropriate for the Magistrate to take into account in the manner I have described, all of the surrounding circumstances, including the subsequent assaults. Conversely, it would have been quite inappropriate for the Magistrate to sentence the appellant as if this offence occurred in a vacuum. An offence of this nature is very different to a thoughtless push of one patron by another and was rightly treated as such by the Magistrate.

34 Consequently I am not persuaded that the Magistrate made the sentencing errors as alleged by the appellant.

35 The maximum penalty for the offence is 2 years' imprisonment if dealt with by a Magistrate. If the Magistrate had felt that she could not sentence the offence within that discretion she could have committed the appellant for sentence to the District Court where the maximum penalty would have been 10 years' imprisonment. Thus a sentence of 12 months and 1 day imprisonment was well within the maximum penalty for this offence. There was very little by way of mitigation of penalty. The appellant received no credit for remorse. The question for me is not whether I would have imposed this sentence if I had been the Magistrate but whether error has been shown on behalf of the Magistrate or the sentence is manifestly excessive. As indicated, the Magistrate did not make the errors alleged by the appellant. I do not consider that a sentence of 12 months and 1 day with parole eligibility is manifestly excessive. I do not consider that the failure to suspend that sentence is an error of principle in all the circumstances. I would, therefore, dismiss the appeal against sentence.