decisions nevertheless provide some support for the
conclusion that 'health' is not impaired by removal of a
part of the body
that serves no particular function with
respect to the rest of it."
18. His Honour also concluded at 237:
"Resort to the dictionaries
confirms that a cosmetic
disability with no consequence upon the functioning of the
body does not involve impairment of 'health'
as that word is
ordinarily understood. The definitions of 'health' in the
dictionaries focus on the functioning of the body."
19. In the end result, I accept Mr Roberts' submission that not much
assistance is to be gained from Tranby because the injury to
health being
considered in that case was of a permanent nature, and I consider that I
should distinguish Tranby on that ground and
approach the matter afresh. As
previously mentioned, the full definition of "bodily harm" is "any physical
injury that interferes
with health" and I consider that it is that composite
phrase which needs to be considered rather than the word "health" taken out
of
context. Firstly, the statute uses the expression "interferes with," which I
take in this context to mean "to affect adversely."
Secondly, the interference
need not be permanent, so that even a temporary interference is sufficient.
Thirdly, the statute does
not use the expression "results in bodily injury,"
although it might have done so. It seems to me therefore unlikely that
Parliament
meant to convey the meaning that a bodily injury, no matter how
minor, is an interference with health, although this is a possible
construction. The narrowest dictionary meaning commonly given to the word
"health" is "soundness of body": see for example the Shorter
Oxford English
Dictionary, 3rd ed and the definitions referred to by De Jersey J in Tranby at
237-38; and "sound" is defined, for
example, by the Macquarie Dictionary to
mean "free from injury, damage, decay, defect, disease, etc."; and the
definition of "sound"
in the Shorter Oxford English Dictionary is to similar
effect, viz., "free from disease, infirmity or injury." Mr Roberts urged that
this was the meaning intended, but if this was intended, why give the
expression "bodily harm" a defined meaning at all, and why
not use the words
"results in a bodily injury"? Moreover, the consequences of such a meaning do
not seem to accord with the seriousness
that the Code treats the causing of
bodily harm. Section 188(2)(a) of the Code increases the maximum penalty for
an assault, where
bodily harm is suffered, from one year to five years'
imprisonment. Section 186 of the Code imposes a penalty of five years'
imprisonment
for unlawfully causing bodily harm to another. Section 192(3)
increases the maximum penalty for a sexual assault from seven years
to
fourteen years where bodily harm is caused. It is hard to see how an offence
against s182 is likely if the intent is to cause
only a minor injury, given
that that section creates the crime of placing explosives in place with intent
to cause any bodily harm.
Further, only physical injuries can result in bodily
harm, yet a mental injury, although temporary, can be far more devastating
than
a minor injury such as a bruise. Finally, I am not helped much by De
Jersey J's observation that the definitions of "health" in
the dictionaries
focus on the functioning of the body. In one sense, even a minor bruise or a
minor headache as a result of a blow
to the head interferes to some extent
with the temporary functioning of the body, although the body has the capacity
to heal in such
cases without the need of any medical assistance. I do not
consider that in ordinary parlance, one could describe minor injuries,
not
requiring any medical treatment, as a temporary interference with one's
health. On the other hand, an injury of such a kind
that warranted seeking
medical treatment may well fall within that description, although the fact
that medical treatment was or was
not sought would not be determinative of the
matter.
20. Mr Howden, for the appellant, submitted that I should adopt the approach
of Derrington J in Tranby, who held (at 236) that it was not possible to say
that the injury in that case plainly and unambiguously
was an injury to
health, and, the statute being a penal one, any ambiguity should be resolved
in favour of the accused. Although
the definition of bodily harm presents
difficulties of construction, I do not consider that I should follow this
approach. In the
end result, I consider that the question of whether the
injury amounts to "bodily harm" is one of degree, which can only be decided
by
reference to the facts in each case. In determining this question, it is
necessary to focus on the injury and its immediate consequences.
The fact
that the victim has been left with only a cosmetic disability is irrelevant if
the immediate consequences of the injury
interfered temporarily with her
health. It is relevant also to consider the nature of any treatment received
and whether any part
of the body was unable to perform its functions fully,
either as a result of pain or otherwise and there may well be other relevant
matters. In this case, the victim did seek medical treatment, and a number of
stitches were inserted to stem the flow of blood.
The victim was also given
painkillers, and she was in a distressed condition whilst at the hospital.
She felt a lot of pain, and
was dizzy for a week, her ability to chew food
properly was interfered with for about a week, her ability to move her eyes
was temporarily
interfered with by pain, and her ability to speak normally was
also temporarily affected. In these circumstances it seems to me
that the
assault did interfere with her health and therefore did result in bodily harm
within the meaning of that expression in the
Code, and I find accordingly.
21. I turn now to consider whether the penalty imposed by the learned
magistrate was manifestly excessive.
Mr Roberts, for the respondent, very
fairly did not seek to rely upon the additional material tendered before me in
order to support
the sentence imposed. Nor did counsel for the appellant.
This aspect of the appeal therefore falls to be determined in accordance
with
the well-known principles established by the High Court in House v The King
[1936] HCA 40; (1936) 55 CLR 499 at 504-5.
22. The circumstances of the offence were that on about 4 December 1990 the
appellant was staying at Woodyards Camp a
few kilometres north of Alice
Springs. This camp is a place leased by the Tangantyere Council to provide a
place for Aboriginal
people to stay when visiting the town. The appellant is
a twenty-five year old married woman, a member of the Warlpiri people, who
normally lives at Yuendumu. She was not accompanied by her husband or
children. The appellant was drinking with four other people,
one of whom was
the eventual victim of the assault. One of the other persons present, a woman
called Deidre, accused the appellant
of sleeping with her husband. The
appellant denied this allegation vehemently. An argument ensued, and the
appellant was "given
a hiding" by Deidre and the eventual victim, the latter
of whom struck the appellant with a rock to the head. The appellant was
taken
to hospital where she received some stitches. The appellant was angry and her
pride hurt by what she considered to be was
an unjustified attack based upon
false allegations. The next day, 5 December, the appellant saw Deidre and the
parties exchanged
apologies. On 7 December the appellant went to the
Institute of Aboriginal Development where her victim worked to speak to her
victim
about this matter, her intention being to invite her victim to go
outside so that they could speak to each other privately. As she
was about to
enter the building, the appellant picked up a small piece of glass which was
part of a broken bottle which she had found,
her intention being, so it was
submitted, in case she needed to protect herself. She entered the building
and spoke to her victim
who was on the other side of the counter. The
appellant asked her why she had been assaulted, and asked her to come outside.
The
victim refused and a shouting match ensued, during which the appellant
reached over the counter and slashed her victim across the
face with the
broken glass. The appellant was later arrested and made full admissions to the
police. She was released on bail and
ultimately appeared before the
magistrate at Yuendumu where she entered a plea of guilty to the charge.
23. The appellant had grown
up in Yuendumu and her first language is
Warlpiri. She has an adequate grasp of English. She attended school to about
year 9 or
10, and can read and write but not fluently. After leaving school,
she married and there is one child of that marriage aged about
seven or eight.
Shortly after that child was born, her husband passed away and she thereafter
remarried. There are three children
aged five, four and three by her second
marriage. At the time of the original hearing, her husband was employed full
time as the
Aboriginal Corrections Officer at Yuendumu earning about $500 per
fortnight. He is now unemployed. The appellant is fully engaged
in bringing
up her children. The appellant has no relevant prior convictions and is, for
all intents and purposes, a first offender.
24. It was submitted that the penalty imposed was manifestly excessive for a
number of reasons, the first of which was that the
appellant's children would
have to be split up amongst the relatives as her husband has no experience in
caring for young children.
I am unable to give this factor any weight.
Except in exceptional circumstances, the effect of a sentence on dependants is
not a
relevant factor: Adami and Adami (1989) 2 A Crim R 8. I do not consider
the circumstances here to be exceptional. The fact that the dependants
affected are those of a woman is not an
exceptional circumstance: R v Wirth
(1976) 14 SASR 291 at 293 per Bray CJ.
25. The next submission was that the assault was provoked in the sense that
the appellant had herself been assaulted
by her victim only a few days before.
I accept that this places the assault in a different category than cases where
the assault
was carried out on a victim who had done nothing to deserve it,
but on the other hand the courts should not be seen to encourage
those who
take the law into their own hands. Some three days had passed since the
assault on the appellant. The appellant, it seems
to me, carried out revenge
on her victim rather than acting in the heat of the moment or at least within
a short time thereafter.
I am unable to give this submission any weight, and
there is nothing to show that the learned magistrate viewed the assault as
being
one carried out upon an entirely innocent victim.
26. The next submission was based upon the observations of Walters J in Coles
v Samuels (1972) 2 SASR 488 at 492 as follows:
"In the absence of circumstances of substantial gravity
surrounding a simple offence or a minor indictable
offence
committed by a first offender who stands to be punished for
a single offence and who has no other offences to be taken
into consideration, and in the absence also of a sufficient
reason for sentencing him to a term of imprisonment, I am
disposed
to think that a reformative or a primarily
deterrent sentence is scarcely indicated, and that the
imposition of a fine, a release
on probation, or a discharge
on a suspended sentence should prima facie be adequate."
27. That was a case of common assault,
whereas here the appellant had pleaded
guilty, rightly as I have found, to an assault causing bodily harm, which is
by virtue of
the Code, a circumstance of aggravation to the assault increasing
the maximum penalty from one to five years' imprisonment. I consider
that the
fact that a weapon was used, that there were two cuts to the face requiring
eighteen stitches, does place the case into
the category of one of substantial
gravity. Even if the cuts were superficial without reaching subcutaneous
layers of the skin and
nothing further was known about the cuts other than the
fact that the victim suffered some pain and suffering for a short time I
would
still consider the criminality involved to warrant the description "of
substantial gravity."
28. In my opinion it has not
been shown that the learned magistrate erred in
any way in imposing a short custodial sentence. The relevant considerations
are
to be found in the observations of King CJ (with whom Mitchell J agreed)
in Yardley v Betts (1979) 1 A Crim R 329 at 332-34, and in the observations of
Bray CJ in Birch v Fitzgerald (1975) 11 SASR 114 at 116-17 to which I referred
in Gadatjiya v Lethbridge (unreported, 28/2/92) and I will not repeat them
here.The need for general
and special deterrence, and to impress upon the
community at large that such behaviour will not be tolerated, warranted the
course
taken by the court below.
29. Accordingly, the appeal is dismissed.