September 11, 2023

Explain the legal basis for Jamie Crockett being found guilty of the offence of ‘Intentionally Causing Serious Injury’ (i.e. explain the elements of the offence and the facts which support/prove each element).

Criminal Law – case law and legislation only to be found in Victoria (Australia)

Question1: –

Jamie Crockett was found guilty by jury verdict of one charge of ‘Intentionally Causing Serious Injury’ and pleaded guilty to one charge of being a ‘Prohibited person in possession of a firearm’. The facts of the case are summarised in the ‘Reasons for Sentence’.

Explain the legal basis for Jamie Crockett being found guilty of the offence of ‘Intentionally Causing Serious Injury’ (i.e. explain the elements of the offence and the facts which support/prove each element). In your answer you must identify the issue/s, refer to the relevant law (case law and legislation) and apply the law to the facts of the case to reach your explanatory conclusion.

(6 marks)

Question 2: –

In paragraph 6 of the Reasons for Sentence, His Honour Judge Gamble explained that, “Shortly before 6 am on the morning of 14 November 2018, [Jamie Crockett was] seated in the driver’s seat of a stationary Mercedes in a suburban street in Cranbourne when the victim Bruno Schwalger, also known as Bruno Tangi, arrived in a Holden Astra being driven by his friend, Damien Woolley. As Mr Tangi exited the vehicle and commenced to approach the front of [Jamie Crockett’s] vehicle, [Jamie Crockett] drove forward a short distance intimating that [Jamie Crockett] may run [the victim, Mr Tangi] over.…..”

In relation to these facts, discuss whether Jamie Crockett could have also been found guilty of the indictable offence of common law ‘Common Assault’. In your answer you must identify the issue/s, refer to the relevant law (case law and legislation) and apply the law to the facts of the case to reach a reasoned conclusion.

(6 marks)

Question 3: –

In paragraph 6 of the Reasons for Sentence, His Honour Judge Gamble explained that on 16 November, the victim, Bruno Tangi, self-discharged from hospital against medical advice and did not attend any follow up medical appointments.

Imagine that the facts in the case of DPP v Crockett were different to those described in the ‘Reasons for Sentence’. Imagine that approximately 4 weeks after leaving hospital the victim tragically died from an infection from the wound. Imagine that there is medical evidence that had the victim attended the follow up medical appointments, the infection could have been successfully treated.

In light of these fictional facts discuss whether, in such changed circumstances, Jamie Crockett could have been found guilty of the offence of ‘Murder’. In your answer you must identify the issues, refer to the relevant law (case law and legislation) and apply the law to the fictional amended facts to reach a reasoned conclusion.

(8 marks)

Requirements: detailed

Question1: –

(6 marks)

Question 2: –

(6 marks)

Question 3: –

(8 marks)

109TRIM SIZE: 165 x 235mm27/09/2017 10:16:05200762Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 109Chapter 7AssaultObjectivesAfter reading this chapter you should be familiar with the following: common assault components of (psychic) assault components of battery assault examples of aggravated assault New South Wales statutory approach to off ences causing harm South Australian statutory approach to off ences causing harm Victorian statutory approaches to off ences causing harm Victorian approach to non-sexual off ences against the person defences to assaultINTRODUCTION7.1 Th e common law off ence of assault was defi ned by E East in A Treatise of the Pleas of the Crown:An assault is any attempt or off er with force and violence to do a corporal hurt to another, whether from malice or wantonness, as by striking him, or even by holding up one’s fi st at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against the person; as by pointing a weapon at him within the reach of it. Where the injury is actually infl icted, it amounts to a battery (which includes an assault) and this, however small it may be; as by spitting in a man’s face, or any way touching him in anger without any lawful occasion. But if the occasion were merely accidental or undesigned, or if it were lawful … ; it is no assault or battery in the law … : Vol 1, p 406.In New South Wales, the penalty for assault is prescribed in statute: see s 61 (NSW). However, the defi nition of assault continues to be found at common law.In Victoria, the common law defi nition of assault applies to the extent that the common law off ence continues to exist: see R v Patton (1998) 1 VR 7. In 1985, Victoria replaced the traditional assault off ences with ss 15–24 (Vic). Th ese provisions are similar Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm110Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11027/09/2017 10:16:052007627.1in structure to common law assault off ences, with some alterations in relation to the sub-classifi cations of assaults under common law. Th e common law off ence of assault was not abolished and thus continues to exist in Victoria. It is triable on indictment and carries a maximum of fi ve years imprisonment: see Patton. For example, assault continues to be relevant to unlawful and dangerous act manslaughter, indecent assault (see s 39) and burglary (see s 76). Students and practitioners must be familiar with the common law concepts of assault in Victoria. Th e major diff erences from common law associated with the Victorian legislation are discussed at 7.65.In South Australia, s 20 (SA), which was inserted in 2005, creates a statutory off ence of assault that is based upon and is similar in most respects to the prior common law off ence:(1) A person commits an assault if the person, without the consent of another person (the ‘victim’) —(a) intentionally applies force (directly or indirectly) to the victim; or(b) intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or(c) threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that —(i) the person who makes the threat is in a position to carry out the threat and intends to do so; or(ii) there is a real possibility that the person will carry out the threat; or(d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or(e) accosts or impedes another in a threatening manner.(2) However —(a) conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and(b) conduct that is justifi ed or excused by law cannot amount to an assault.Th ese statutory off ences are intended to replace the common law notion of assault. As a matter of statutory construction, Divs 7 (‘Assault’) and 7A (‘Causing physical or mental harm’) take priority over the common law. Students should exercise caution when using cases from before 2006, when the South Australian legislation changed. Th roughout this chapter any diff erences between the South Australian defi nition of assault and the common law will be identifi ed.All three jurisdictions have introduced statutory reforms for aggravated assaults. Th ese will be considered in turn from 7.44 below.COMMON ASSAULT7.2 Common assault is the most basic kind of assault, and can be tried either on indictment or summarily. Historically, a distinction was drawn between assault and battery. Assaults covered non-physical interference, while battery incorporated actual Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1117.5Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11127/09/2017 10:16:05200762application of force. Th is distinction is no longer applicable, and the term ‘assault’ currently denotes the historical conception of assault and battery.Th e current concept of common assault incorporates two historical off ences of assault:(a) (psychic) assault: D intentionally or recklessly puts V in fear of imminent unlawful contact or physical harm: see R v McNamara [1954] VLR 291; and(b) battery: D intentionally or recklessly applies unlawful physical force or contact against V’s person: see R v Venna [1976] QB 421.D will generally be charged with assault, whether D has committed a (psychic) assault or a battery, with the consequence that the word ‘battery’ is rarely used. Th roughout this chapter, where relevant, psychic assaults and battery assaults will be considered separately. Th is is because (psychic) assaults and battery assaults have diff erent mens rea and actus reus components. ☛Student tipIt is very important to distinguish between whether an assault is ‘psychic’ or a ‘battery’ as, although the off ence is the same, the law is diff erent. A (psychic) assault involves no contact but creates fear, while a battery requires unlawful contact.Mens rea7.3 Th e mens rea for assault is specifi ed at common law.ElementsThe mens rea of common assault is intentionally or recklessly:• creating an apprehension of imminent unlawful contact ((psychic) assault); or• eff ecting unlawful contact (battery): see Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; R v Venna [1976] QB 421.Each of these elements will be considered in turn.Intentional assault7.4 It is clear that an assault can be committed intentionally: see MacPherson v Brown (1975) 12 SASR 184; s 20 (SA). Section 20(1)(c) (SA) requires proof of an intention to cause V to apprehend violence or a real possibility of violence: Police v Harrison [2017] SASC 18.Is hostility essential?7.5 It is unnecessary that the intentional application of force be accompanied by hostility.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm112Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11227/09/2017 10:16:052007627.5In Boughey v R (1986) 65 ALR 609, D was a doctor who applied manual pressure to V’s carotid arteries. He had not intended to cause V injury, but to increase V’s sexual excitement for the purpose of sexual activities they were engaged in at the time. D was charged with murder when this practice resulted in V’s death. He argued that he had intended no injury. It was held that hostile intent is not an ingredient to the off ence of battery at common law where force is intentionally applied to V. See also Reeves v R (2013) 304 ALR 251.Th e Court noted that hostile intent could convert what would otherwise not be a battery into a battery:It has never … been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary ingredient of an unlawful battery. Where the existence of hostility or hostile intent may be of decisive importance is in a case [in] which … that hostility or hostile intent may convert what would otherwise be unobjectionable as an ordinary incident of social intercourse into battery at common law … Apart from such cases, however, the absence of such hostility or hostile intent towards the person to whom force is applied neither precludes the intentional application of force to the person of another from constituting battery at common law … nor, of itself, constitutes a justifi cation or excuse for it: Boughey at 620.An example of this would be the diff erence between accidentally bumping into someone on a bus (which would not be an assault) and doing so deliberately (which would be converted into an assault due to the hostile intent).7.6 South Australia In South Australia, s 20 is in accordance with the reasoning above that hostile intent is not required for battery, specifying only that D must ‘intentionally’ apply force or threaten to apply force. Moreover, s 22(4) states that:If a defendant’s conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm.Th is is broadly consistent with the notion expressed in Boughey that hostile intent can convert what would otherwise not be an assault into an assault.Reckless assault7.7 D can commit an assault where D indulges in conduct that D knows could possibly: ◆give V (reasonable) grounds for apprehending imminent unlawful contact ((psychic) assault); or ◆eff ect unlawful contact (battery).Th e weight of authorities is clear that the standard for reckless assault is that of ‘possibility’ rather than ‘probability’: see MacPherson v Brown; Coleman v R (1990) 19 NSWLR 467. For example, in R v Venna [1976] QB 421, D lashed out at police offi cers seeking to arrest him, resulting in D fracturing one police offi cer’s hand. D was charged with assault occasioning actual bodily harm (ABH). D stated he had not intended to hit V, but was kicking in an attempt to get off the ground. It was held that if he recognised the possibility of unlawful contact, he had mens rea for assault. D was found guilty.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1137.11Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11327/09/2017 10:16:05200762Must be subjective7.8 Th e case of MacPherson v Brown stresses that D must subjectively recognise the riskiness of D’s behaviour. D is not to be judged by an objective standard of what a reasonable person would have foreseen. In that case, V, university lecturer, was surrounded by 30 students following a protest, including D. V asked the group several times to be let through, later saying that he was in fear of physical danger from the group. Th e confrontation lasted for 15 minutes. Th e trial judge held that, while he doubted that D was aware that V would be frightened by his conduct, D had been reckless and ought to have known that his conduct would give reasonable grounds for creating fear in V. He found D guilty of assault.On appeal, the trial judge’s decision was overturned. Th e word ‘reckless’ should be confi ned to action where the relevant consequences are adverted to, even if not desired. Bray CJ in the Full Court stated:It is contrary to fundamental principles and the whole tenor of modern thought, to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a reasonable prudent man would have intended, known or foreseen in the circumstances: at 188.7.9 South Australia It appears that South Australia has moved away from the common law with regard to mens rea. In South Australia, recklessness will not be suffi cient for an off ence under s 20.Negligence7.10 A common assault cannot be committed negligently. However, sections have been introduced to cover cases where D has negligently caused V an injury: see, eg, s 54 (NSW); s 24 (Vic). In such cases, the prosecution must prove D’s level of negligence was criminal: see R v D [1984] 3 NSWLR 29.In Victoria, s 24 requires that the jury should be directed that:… the act or omission must have taken place in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that grievous bodily injury would follow, that the act or omission merits punishment under the criminal law: R v Shields [1981] VR 717 at 723.Actus reus7.11 Th e actus reus for assault is specifi ed at common law.ElementsD must:• act so as to create an apprehension by V of imminent unlawful contact ((psychic) assault);• apply unlawful contact against the person of another (battery).Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm1147.12Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11427/09/2017 10:16:05200762Psychic assault7.12 In South Australia, the statutory provisions for the equivalent of the common law (psychic) assault are found in s 20(1)(c). Th ese provisions broadly mirror the common law. Any diff erences will be noted below.Positive act7.13 An omission to act does not constitute an assault: see Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 at 444 per James CJ.Th e courts have a broad defi nition of what constitutes a positive act, including silent phone calls: see R v Ireland; R v Burstow [1997] 4 All ER 225 at 236–7 per Lord Steyn. Th e use of words has also been held to constitute a positive act in all common law jurisdictions: see, eg, Tout v R (1987) 11 NSWLR 251 at 256–7 per Lee J; R v Knight (1988) 35 A Crim R 314.State of mind of the victim7.14 V must actually have been put in fear of imminent unlawful contact: see Barton v Armstrong [1969] 2 NSWR 451; MacPherson v Brown.As a consequence, V must be aware of the threat of imminent unlawful contact. If V is unconscious or asleep, then a (psychic) assault cannot be committed. For example, in Pemble v R (1971) 124 CLR 107, V was unaware that D was pointing a rifl e at her back. Menzies J therefore held that D had not committed an assault on V.In Ryan v Kuhl [1979] VR 315, D and V were in neighbouring cubicles in a public toilet. D thrust a carving knife through a hole in the partition between the cubicles in order to stop V annoying him. V testifi ed that he was not frightened, because he knew that D could not harm him, as long as he remained in the cubicle. It was held that, as D’s conduct did not cause fear of harm in V, there was no case to answer in the charge of assault.It has been suggested that V’s fear must be reasonable, in the sense that a reasonable person would have also been in fear, ie, D’s liability is limited by an objective test: see Barton v Armstrong at 455 per Taylor J. However, this is contrary to common law principles that the victim should be taken as found: see R v Blaue [1975] 3 All ER 446. Where V is exceptionally cowardly, D may escape conviction on the grounds of lack of mens rea.Th e question is more likely to revolve around whether D had the necessary mens rea to create an apprehension of imminent unlawful contact than whether V’s fear was reasonable. Th is is because authorities are clear that where D knows that V is of unusual timidity, then the unreasonableness of the fear may not prevent conviction: see MacPherson v Brown at 187. Where V’s fear is unreasonable, and D has no knowledge of this timidity, then clearly D will not have mens rea.7.15 South Australia In South Australia, s 20(1)(c) requires that there ‘are reasonable grounds for the victim to believe’:(i) the person who makes the threat is in a position to carry out the threat and intends to do so; or(ii) there is a real possibility that the person will carry out the threat.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1157.20Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11527/09/2017 10:16:05200762It would appear that the legislation departs from the common law in this respect. Th us, in South Australia, if D knew that V was exceptionally timid and intended to frighten V, this would not be an assault, because V’s fear was unreasonable.It is arguable that s 20 does not require that V felt fear, only that it was reasonable for V to feel fear. Th is would be a departure from a basic requirement of common law that the essence of (psychic) assault is that V felt fear.Ability to execute threat7.16 D need not be able to execute D’s threat, as the essence of the off ence is the eff ect that is created in V’s mind. Th us, where D points a harmless toy pistol at V, who believes that the pistol is real, D can be charged with assault: see R v Everingham (1949) 66 WN (NSW) 122a.D need not intend to fulfi l the threat. Th e only mens rea required is to intentionally or recklessly create the apprehension of imminent unlawful contact.7.17 South Australia In South Australia, s 20(1)(c)(ii) is in accordance with this requirement, stating that there must be reasonable grounds for V to believe that ‘there is a real possibility that the person will carry out the threat’.Imminence7.18 At common law, V must apprehend ‘imminent’ or ‘immediate’ unlawful violence: see Zanker v Vartzokas (1988) 34 A Crim R 11. Th us, generally, threats of future violence should not amount to an assault: see R v Knight (1988) 35 A Crim R 314.7.19 South Australia In South Australia, s 20 makes no mention that a threat must be of imminent or immediate unlawful violence. It appears to be suffi cient to threaten ‘(by words or conduct) to apply force’: s 20(1)(c).Threats made over the telephone7.20 Th reats made over the telephone have raised questions of imminence, and the courts have continued to grapple with this issue. In Barton v Armstrong, D made threats over the telephone. It was held that D could be guilty of assault, provided that the threats were suffi cient to ground a fear of imminent violence in V’s mind:Th reats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an interference with personal freedom and integrity, and the right of a person to be free from fear of insult. If the threat produces the fear or apprehension of physical violence, then I am of the opinion that the law is breached, although the victim does not know when that physical violence may be breached: at 455 per Taylor J.In Knight, D had been convicted of assaulting a bus driver. He then made a series of threatening phone calls to the arresting police offi cer, the magistrate who convicted him, and the judge who rejected his fi rst appeal. Th e phone calls threatened death or injury, but the language suggested a lack of imminence — it comprised either comments as to the past or threats for the indefi nite future. At fi rst instance D Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm116Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11627/09/2017 10:16:052007627.20was found guilty of assault, but on appeal, his convictions were quashed. Barton v Armstrong was critically considered, with Lee J stating:I do not regard the decision in Barton v Armstrong as absolutely requiring the view that his Honour has fi nally held, that fear of immediate violence has other than its ordinary literal import: Knight at 316.7.21 Th e House of Lords considered the issue of whether silent phone calls can constitute an assault in R v Ireland; R v Burstow. In that case the Court considered two separate appeals involving two defendants. D1 made repeated phone calls to V1 over a three-month period and was charged with assault occasioning ABH. Th e calls tended to involve silence or heavy breathing and were at night. D2 harassed V2, when their relationship fi nished, with silent and abusive phone calls, distributing off ensive cards in the street where she lived, turning up frequently and unnecessarily at her work and home, and sending photos of her friends and family with a menacing note. A psychologist stated that V2 was suff ering from a severe depressive illness. D2 was charged with maliciously infl icting grievous bodily harm (GBH).Th e House of Lords dismissed both appeals. Lord Steyn (with whom the other members agreed) considered whether making silent phone calls causing psychiatric injury can constitute an assault. He noted that silent phone calls could not constitute a battery and then continued:Th at brings me to the critical question whether a silent caller may be guilty of an assault. Th e answer to this question seems to me to be ‘Yes, depending on the facts’. It involves questions of fact within the province of the jury. Aft er all, there is no reason why a telephone caller who says to a woman in a menacing way ‘I will be at your door in a minute or two’ may not be guilty of an assault if he causes his victim to apprehend imminent personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. Th e victim is assailed by uncertainty as to his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller’s potentially menacing call or calls on the victim … And a trial judge may, depending on the circumstances, put a common sense consideration before the jury, namely what, if not the possibility of imminent personal violence, was the victim terrifi ed about? I conclude that an assault may be committed in the particular factual circumstances which I have envisaged. For this reason I reject the submission that as a matter of law a silent telephone caller cannot ever be guilty of an [assault]: at 236.Ireland and Burstow has been the subject of much critical comment. Th e major diffi culty raised by this case is the reach of the off ence of assault, particularly in terms of how immediate the threat is perceived to be. Th is diffi culty in cases of ongoing harassment has led jurisdictions to introduce stalking legislation to cover situations where there is a lack of imminence to the threats: see s 60C (NSW); Crimes (Domestic and Personal Violence) Act 2007 (NSW); s 19AA (SA); s 21A (Vic).‘Immediate and continuing fear’7.22 Th e requirement of imminence or immediacy can create some diffi culties in establishing assault. However, the courts have used the concept of ‘immediate and Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1177.25 Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11727/09/2017 10:16:05200762continuing fear’ to interpret the requirement of ‘imminence’ in a way which is sympathetic to the plight of V. Th is principle was exemplifi ed in Zanker v Vartzokas. In that case, V accepted a lift from D. D off ered her money for sexual favours. She rejected his off er. He persisted. She demanded that he stop to allow her to get out, but he accelerated the van. She threatened to jump out, and he accelerated further. D then said, ‘I am going to take you to my mate’s house. He will really fi x you up.’ V felt such fear that she opened the van door and jumped out. V suff ered some injuries. Th e magistrate dismissed the charge of assault against D due to the lack of imminence in the threats.White J allowed the appeal, and held that the concept of a continuing threat should be applied:Th e young woman was in immediate and continuing fear so long as she was imprisoned by the defendant. Unlike the ‘threat’ and fear in MacPherson’s case, this defendant’s threat of violence was explicit, namely, that when they arrived at ‘his mate’s house’, ‘he will really fi x you up’. Th e threat was, it is true, to be carried out in the future, but there was no indication by the defendant whether the ‘mate’s house’ was around the next corner, or several or more streets away in the suburban area. A present fear of relatively immediate imminent violence was instilled in her mind from the moment the words were uttered, and that fear was kept alive in her mind, in the continuing present, by continuing progress with her as prisoner, towards the house where the feared sexual violence was to occur. … Th ere was no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infl iction of harm: at 14.Conditional threats7.23 Conditional threats are threats where D imposes some condition upon V, which if V does not meet, D will infl ict some violence. Conditional threats raise the issue of imminence, because, if V meets D’s condition, then there would be no need to apprehend imminent unlawful contact. Th e requirement of imminent infl iction of physical harm is the ultimate factor in determining liability.Th e courts have approached conditional threats in two ways, by:1. looking at the words of the threat; and2. considering whether D had the right to impose the condition.Each of these approaches will be considered in turn.7.24 Words of the threat Th e courts will look fi rst at the words of D to determine whether or not there are any grounds for V to fear imminent unlawful contact. In Tuberville v Savage (1669) 86 ER 684, where D laid his hand on his sword and said to V, ‘If it were not assize time I would not take such language’, it was held that this did not amount to an assault, for clearly these words, though threatening, were such as to suggest that D would not attack V.7.25 Does D have a right to impose the condition? If the words of the threat suggest imminent violence, the courts will then consider whether D had a right to impose that condition. In Police v Greaves [1964] NZLR 295, D told V, a police offi cer, that he would stab V if V came closer. Although there was no occasion for V to suppose a threat of imminent attack, the threat nevertheless constituted an assault. Th is is Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm118Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11827/09/2017 10:16:052007627.25because D subjected V to intimidation by threatening to apply force, in the event of non-compliance by V, to a condition that D had no right to impose.In Rozsa v Samuels [1969] SASR 205, D was a taxi driver who drove his taxi to the front of the taxi queue. V, another taxi driver, remonstrated with D, who said ‘I am here and I’m staying here’. V said he would punch D in the head, and D responded by pulling out a knife and saying ‘I’ll cut you to pieces if you try it’. D tried to get out of his taxi but was stopped by V slamming the taxi door. D was charged with assault. Th e Court held that it was necessary to look at the terms of the condition and whether D had any right to impose that threat. One ground for imposing a condition of this kind is in self-defence. For example, if A tried to enter D’s house and D prevented A by saying ‘If you attempt to enter I will knock you down’, this would not be an assault, because D had a right to impose this condition. Th us, in Rozsa v Samuels it was necessary to ask the question: if V had attempted to hit D, would D have been justifi ed in using a table knife? If yes, this would not be an assault. However, D threatened excessive force which would have precluded reliance upon self-defence. As a consequence, D was guilty of assault. ☛Student tipA classic example of a (psychic) assault involving a conditional threat is a robber pointing a gun at V saying ‘Your money or your life’. This is a conditional threat, and arguably does not satisfy the requirement of imminence, because if V just did what the robber said, then force would not be applied. However, the courts would look at whether or not D had the right to impose the condition. In this case, D would not have the right to impose that condition on V, and thus the statement itself would be an assault.Infl iction of harm as a result of (psychic) assault7.26 D can be charged with an assault occasioning ABH if D’s (psychic) assault causes V to act in such a way as to infl ict ABH. Th e mens rea for assault occasioning ABH is the same as that for common assault. ☛Student tipFor the off ence of assault occasioning ABH (NSW) or assault causing harm (SA), the prosecution only needs to prove the mens rea for a basic assault, and does not need to prove any mens rea in relation to the harm infl icted.Th e prosecution must establish that: ◆D committed an assault; ◆V suff ered ABH; ◆D caused these injuries..Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1197.30 Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 11927/09/2017 10:16:05200762In South Australia, s 20(4) frames this as ‘an assault that causes harm to another’ — which is consistent with the common law defi nition of assault occasioning ABH. Th e off ence of causing harm to another under s 20(4) draws upon the common law defi nition of causation.Th is same issue of causation can arise in homicide cases, with Royall v R (1991) 172 CLR 378 the leading authority, in cases where D frightens V into fatal self-injury. Th is is discussed in Chapter 3. Th e general test is whether D was a substantial and operating cause of V’s injury. V’s action will not rupture the causal chain if V’s action was not a perverse reaction to D’s threats. Whether or not D will be charged with an aggravated assault will depend on the mens rea requirements for that off ence.7.27 In Zanker v Vartzokas, D threatened V while driving her in a van. Th e van was travelling at 60 km/h; V was put in such fear that she opened the van door and leapt out. She suff ered some bodily injury.Th e Court held that D had committed an assault, as V was in immediate and continuing fear so long as she was imprisoned by D, and her fear was explicit. V suff ered injuries that could be classifi ed as ABH. D’s actions were the substantial and operating cause of these injuries, as they were caused by V seeking to escape D. Th us, D was found guilty of assault occasioning ABH, and it made no diff erence whether D foresaw that V would jump out of the van and injure herself. It was only required that D intentionally or recklessly caused V to fear imminent unlawful contact.BATTERY7.28 Th e actus reus for common assault consists of the application of unlawful contact to V’s person: Fagan v Metropolitan Police Commissioner.Mere omission to act cannot amount to an assault7.29 In Fagan, it was held that a mere omission cannot amount to an assault. In that case, D reversed his car onto the foot of V, a police offi cer. D then turned off the car engine. D only reluctantly turned on the car engine, aft er several requests, and reversed it off V’s foot. Th ere was doubt as to whether D intentionally parked the car on V’s foot, but it was beyond a reasonable doubt that D allowed the car to remain unnecessarily on V’s foot. Th e defence argued that there was no act by D, merely an omission or failure to remove the wheel immediately. It was held that D had acted by switching off the car engine and maintaining the wheel of the car in its position on V’s foot, and this constituted the actus reus of the off ence.Th is reading of the facts of the case is quite problematic, and stretches the meaning of term ‘act’. However, the principle from Fagan is sound.7.30 South Australia Th e South Australian legislation is clearly framed in terms consistent with the common law requirement that an assault consists of an act, not an omission. Th e common law authorities are unclear, but s 20(1)(a)–(b) extend assault to include indirect application of force. Th is would include, eg, calling someone to a dangerous cliff edge.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm120Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12027/09/2017 10:16:052007627.31Mere touching can amount to an assault7.31 Mere touching of V by D can amount to an assault: see Collins v Wilcock [1984] 3 All ER 374 at 378. For this reason, the requirement of battery will be framed as unlawful contact rather than unlawful force.D may be relieved of liability on grounds such as: ◆lack of mens rea; ◆implied consent, eg, contact during ordinary social intercourse; ◆use of lawful force, such as self-defence.It is also clear that spitting can amount to unlawful contact for the purposes of battery. In DPP v JWH (unreported, NSWCCA, 17 October 1997), D spat on two arresting police offi cers. Th e trial judge held that there was no battery due to the absence of force, and there was no (psychic) assault due to the absence of any apprehension on the part of the Vs prior to the spitting. On appeal, it was held that spitting could amount to an assault. Th is is because a battery can consist of any unlawful contact, be it ever so small.7.32 South Australia Section 20 does not specify a minimum level of unlawful contact or force. Th is is consistent with the common law.Consent7.33 Th e application of force is unlawful unless V has consented. Th at is, the prosecution must prove that V did not, expressly or impliedly, consent to the assault: see R v Clarence (1888) 22 QBD 23 at 36–7. In R v Schloss and Maguire (1897) 8 QLJ 21, it was stated that: ‘Th e term assault of itself involves the notion of a want of consent. An assault with consent is not an assault at all’: at 23.Consent may be express or implied: see Collins v Wilcock [1984] 3 All ER 374. A great deal of contact in society is assumed to have implied consent. Th e High Court recognised this in Boughey v R (1986) 65 ALR 609: ‘commonplace, intentional, but non-hostile acts such as patting another on the shoulder to attract attention, or pushing between others to alight from a crowded bus’ are excluded from assault, as V has given implied consent: at [23].7.34 South Australia In South Australia, the legislation expresses this in s 20(2)(a): ‘conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault’.7.35 Th e issue of consent to medical procedures to negative the off ence of battery was considered by the High Court in Reeves v R (2013) 304 ALR 251. In that case, V had been referred to D for a removal of a lesion and surrounding tissue on her labia. Instead, D performed a medical procedure on V which involved removing her external genitals. Th e prosecution case was that the surgery D had performed was excessive and that D did not honestly believe V had consented to the surgery. D was convicted of the malicious infl iction of GBH (s 33, NSW) and unsuccessfully appealed to the High Court. Th e High Court stated that in order to negate the off ence of battery it is suffi cient if the patient consents to the procedure, having been advised in broad Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1217.38Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12127/09/2017 10:16:05200762terms of its nature: at [35]. Th us, if V had been informed that the surgery involved the removal of her labia and clitoris, then D would have had a lawful cause or excuse for performing it. Th is would be so regardless of any failure to inform V of its possible major consequences or any alternative treatments. A failure in either of these respects might be a breach of D’s common law duty of care, exposing D to liability in negligence, but it would not vitiate consent to the surgery.Vitiated consent7.36 V’s consent may be vitiated, ie, treated as though it was not present, in specifi c situations: ◆consent which is obtained by force or threats of force is not relevant, as the use of force or threats would constitute assault; ◆consent is no defence to certain sexual off ences: see Chapter 8; ◆fraud may sometimes negative consent: see Chapter 8.Th is issue of fraud was considered in DPP v Richardson [1998] 2 VR 188, where D, a dentist, continued to treat patients aft er she had been suspended from practising. D was charged with assault occasioning ABH. Th e trial judge directed that V’s consent to treatment had been vitiated by fraud (ie, the belief that D was allowed to practise), and D pleaded guilty. On appeal, the United Kingdom Court of Appeal held that, under criminal law, only fraud as to the nature of the act or the physical identity of the person will vitiate consent. In this case, V consented to dentistry by D, and the fact that V was misled as to D’s social identity did not vitiate consent. Th us, D was not guilty of assault.At common law, V’s consent is not a defence to assault occasioning ABH: see Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331; R v Brown [1994] 1 AC 212.7.37 Th e English case of Brown provides an illustration of the common law rule that V cannot consent to ABH or more, unless D’s actions were within lawfully recognised exceptions, such as surgery, boxing, ‘contact’ sports, lawful correction, dangerous exhibitions and ‘manly diversions’. In Brown, the Ds and Vs had consensually practised sado-masochistic activities in private locations for over 10 years. Th e passive partners consented to injuries such as genital torture, but no permanent injuries were infl icted. No victim had complained. Th e Ds were charged with a number of counts of unlawful and malicious wounding and assault occasioning ABH. Th e House of Lords held that a ‘victim’ cannot consent to assault occasioning ABH, unless it falls within one of the prescribed exceptions or there is a justifi cation. Th e majority could fi nd no public interest that would justify the creation of a further exception in this case.Th e dissenting judges, Lords Mustill and Slynn, argued that these practices were private sexual relations and matters of personal morality with which the law should not be concerned.7.38 In R v Wilson [1997] QB 47, the question of V’s ability to consent to ABH or more, for the purposes of sado-masochism, was considered by the English Court of Appeal. Th is case involved a husband (D) branding his initials on the buttocks of his wife (V) with a hot knife, at her instigation. Th e scars were reported to the police by V’s Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm122Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12227/09/2017 10:16:052007627.38doctor. It was held that D’s conviction for assault occasioning ABH should be quashed, on the basis that what D did was no more dangerous or painful than tattooing, which, if carried out with the consent of an adult, is not a criminal off ence. Th e majority also emphasised that consensual activity between a husband and wife, in the privacy of their matrimonial home, should not be the subject of criminal investigation or prosecution.Given the requirements of specifi c training and licensing of tattoo artists and the increasing legislative attention to violence in domestic relationships, it is diffi cult to justify the diff erent results in Brown and Wilson. Additionally, it is hard to fi nd a rationale for permitting sport, horseplay, ‘manly diversions’ and ornamentation, but prohibiting sexual fulfi lment.In Australia, the defendants in Brown would not have been charged with assault, due to the Human Rights (Sexual Conduct) Act 1994 (Cth). Th e Act’s one substantive clause states:4 (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy, within the meaning of Art 17 of the International Covenant on Civil and Political Rights. (2) For the purpose of this section, an adult is a person who is 18 years old or more.However, see the Victorian unlawful and dangerous act manslaughter case R v Stein (2007) 18 VR 376.Exceptions to the rule that V cannot consent to ABH7.39 Th ere are a number of exceptions recognised at common law to the rule that consent is no defence where ABH is infl icted. Th ese exceptions are based on notions of public interest, or where there is general social approval. For example, surgery performed with the informed consent of a patient is not an assault, even where GBH is infl icted.Many sports involve body contact that can lead to injuries of ABH or more, such as boxing, football, netball and hockey. In Pallante v Stadiums Pty Ltd (No 1), it was held that D is relieved from criminal liability for injury infl icted upon sporting opponents, provided that: ◆D keeps within the recognised and reasonable rules of the game; ◆the application of force by D against V is in a sporting spirit, and not due to hostility or anger; and ◆the application of force by D is no more than is ordinarily and reasonably to be contemplated as incidental to the game: at 343 per McInerney J.However, the courts have acknowledged that, in many sports, it is expected that there will be numerous breaches of the rules. In Re Jewell and Crimes Compensation Tribunal (unreported, VSC, 16 January 1987, Legoe J), it was held that, even though V was harmed during an Australian Rules football match when D broke the rules of the game, this did not amount to a breach of criminal law. Legoe J said: ‘A player cannot Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1237.41 Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12327/09/2017 10:16:05200762expect, nor is he entitled to expect, that every player will play strictly according to the rules.’ Legoe J continued:We think that the test to apply is one of reasonableness having regard to the rules of the game and the generally accepted risks accepted by reasonable players as inherent in it.In our view the particular incident was within the reasonable contemplation of players of Australian Rules football despite the fact that the blow to the head was in breach of the rules. We would have come to a diff erent conclusion if the contact had not been by a sweeping arm action with a fi st unclenched but rather by a solid and deliberate punch. Such an action in our view, whether on the ball or behind the play, would not be of a kind in fact consented to by players of the game nor as a matter of policy should it be deemed so by a Tribunal administering the Act. By playing the game the applicant consented to run the risk of injury from an incident of the kind which occurred and he had the lawful capacity to do so.7.40 In R v Stanley (unreported, NSWSC, 29 March 1995, Levine J), D was found guilty of maliciously infl icting GBH: see s 35(b) (NSW). D was a rugby league player who raised his elbow in a tackle and fractured the jaw of V, an opposing player. D argued he had been trying to eff ect a shoulder charge tackle and he had not intended to harm V. However, the majority of the witnesses, including the match referee, testifi ed to the contrary. Th e trial judge found that D had intentionally struck V with his elbow. On appeal, Levine J stated:In an organised game of rugby league the players consent to acts of violence and acts of substantial violence, and the risks of injury, from the minor to the serious, fl owing therefrom, provided that those acts occurred during the course of play in accordance with the rules and usages of the game. Players are not to be taken as consenting to the malicious use of violence intended or recklessly to cause grievous bodily harm. Th e policy of the law will not permit the mere occasion of a rugby league match to render innocent or otherwise excuse conduct which can discretely be found beyond reasonable doubt, to constitute a criminal off ence.7.41 South Australia Section 22(1) restates the common law rule that an assault is not committed where ‘the victim lawfully consented to the act causing harm’. Th e limits of the rules of consent are expressed in s 22(3): ‘A person may consent to harm (including serious harm) if the nature of the harm and the purpose for which it is infl icted fall within limits that are generally accepted in the community.’ Examples in s 22(3) of socially approved pastimes include harms for religious purposes (excepting female circumcision), harms for therapeutic purposes, and participating in sporting or recreational activity where participants may ‘consent to harm arising from a risk inherent in the nature of the activity’.Section 22(4) also specifi es that:If a defendant’s conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm.Th is is similar to the hostile intent argument expressed above. Where D engages in a socially approved pastime for which the law assumes consent, this consent is vitiated if Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm124Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12427/09/2017 10:16:052007627.41D had hostile intent, where ‘the defendant’s primary purpose was to cause such harm’. Th is imports a requirement that the sole or signifi cant motivation for D’s actions was to cause harm.Additional South Australian off ences7.42 Section 20(1) (SA) creates two additional assault types. Th ose are where D:(d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or(e) accosts or impedes another in a threatening manner.Section 20(1)(d) is comparable to an attempted assault. An example might be where D tried to hit V with D’s handbag, but missed because V ducked. D would be guilty of assault under s 20(1)(d). See also Police v Wilson [2012] SASC 38, where D threw a chair at V, but missed. In that case, Vanstone J noted that under s 20(1)(d), ‘the relevant intention relates to the act done, rather than the consequence of it’: at [19].Section 20(1)(e) provides it is an assault where V is accosted or impeded by D in a threatening manner. Th is would cover the case of MacPherson v Brown, where V claimed that he had been blocked by D and other angry students. D was found not guilty because he claimed that he had not realised that V would feel fear. D would be guilty under the off ence in s 20(1)(e).Contemporaneity of actus reus and mens rea7.43 Fagan v Metropolitan Police Commissioner stresses the importance of contemporaneity of the actus reus and mens rea requirements. Th is case relied on the notion of a ‘continuing act’ and held that, as D possessed the mens rea at one stage in the continuing act, this was suffi cient to ground liability.AGGRAVATED ASSAULTS IN NEW SOUTH WALES, SOUTH AUSTRALIA AND VICTORIA7.44 Common law distinctions between aggravated assaults and common assaults are maintained in each jurisdiction. Aggravated assaults are considered aggravated due to the presence of additional or aggravating factors.Despite statutory reforms, the bulk of the common law analysis below continues to be applicable to Victoria.It is possible to broadly divide aggravated assaults into four classes: ◆assaults with further specifi c intent: see 7.45; ◆assaults on victims with special status: see 7.46; ◆assaults in combination with other off ences: see 7.48; ◆assaults with particular injuries: see 7.49 (New South Wales); 7.57 (South Australia and Victoria).Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1257.47Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12527/09/2017 10:16:05200762Each will be considered in turn. It should be noted that not all the statutory off ences considered below are actually assaults; however, the term ‘aggravated assault’ is used generically to cover these off ences.Assaults with further specifi c intent7.45 Th ese off ences require that D not only had the necessary mens rea for common assault, but also either that:(a) D intended some greater level of harm to V, eg, assault with intent to kill (see s 27 (NSW)) or assault with intent to commit an indictable off ence (see s 31(1) (Vic)); or(b) the assault be part of another crime, eg, assault with intent to resist lawful arrest: see s 58 (NSW); s 31(1)(c) (Vic).Assaults on victims with special status7.46 Assaults on victims of specially protected status are regarded as more serious and deserving of higher penalties. Of particular importance are assaults on police offi cers and other similar offi cials: see Div 8A and s 58 (NSW); s 29(a) (SA); s 31(1)(b) (Vic).Police offi cers7.47 All jurisdictions criminalise assaulting a police offi cer in the execution of his or her duty. D does not need to be aware that the person assaulted was a police offi cer. Th us in R v Reynhoudt (1962) 107 CLR 381, it was held that there was no requirement that D be aware that V was a police offi cer, nor that D be aware that V was acting in the course of duty. Establishing the status of V as a police offi cer is a matter for the actus reus. If V is not acting in the course of duty when assaulted, then D does not commit the aggravated off ence (but see s 60(4) (NSW)). Dixon CJ (in dissent) disagreed with the absence of mens rea for the aggravated component:Th e off ence is an aggravated assault, aggravated by the fact that the person assaulted is a policeman and is in the execution of his duty. Th at is a compound off ence, and I think that the guilty mind should go to the elements of which it is composed: at 387.In all States, the prosecution must establish that V was acting in the course of duty when assaulted. Th e scope of a police offi cer’s duty has been broadly construed as including anything that can fairly and reasonably be regarded as a carrying out of a police offi cer’s duty: Reynhoudt. In R v K (1993) 118 ALR 596, the Federal Court held that:… a police offi cer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police offi cer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty, so as to cease to be acting therein: at 601 per Gallop, Spender and Burchett JJ.In New South Wales, s 60 goes beyond assaults to cover a person who ‘assaults, throws a missile at, stalks, harasses or intimidates a police offi cer while in the execution of the offi cer’s duty, although no actual bodily harm is occasioned to the offi cer’.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm1267.48Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12627/09/2017 10:16:05200762Assaults in combination with other off ences7.48 Assaults committed in combination with other off ences are aggravated, eg: ◆robbery: assault plus larceny: see ss 94–98 (NSW); s 75 (Vic); s 137 (SA); ◆abducting: assault plus false imprisonment: see ss 89–90A (NSW); ss 55–56 (Vic); s 59 (SA).Assaults with particular injuries: New South Wales7.49 Th ere is no requirement of harm in common assault. Th us, where harm is caused in the form of actual injury to V, this may constitute an aggravated assault with a higher available penalty. A number of terms arise in these aggravated off ences and these will be outlined below. In addition, committing these off ences in company is an aggravating element in New South Wales.Victoria and South Australia have altered the terminology of aggravated assaults with particular injuries, and this will be considered from 7.57 onwards.TerminologyActual Bodily Harm (ABH)7.50 ABH has been defi ned as including ‘any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifl ing’: see R v Donovan [1934] 2 KB 498 at 509.As there is no requirement of permanence of injury, ABH can include recognisable short-term psychiatric illnesses: see R v Ireland; R v Burstow; R v Chan Fook [1994] 2 All ER 552; R v Lardner (unreported, NSWCCA, 10 September 1998). ABH will not include emotions such as fear or panic or other states of mind which are not themselves evidence of some clinical condition. ABH can include cutting a person’s hair: DPP v Smith [2006] EWHC 94.Grievous Bodily Harm (GBH)7.51 GBH has been defi ned as a ‘really serious bodily harm’: see R v Perks (1986) 41 SASR 335. It is for the jury to determine whether an injury amounts to GBH, eg, a fracture to the skull or strangulation to the point of unconsciousness.GBH has also been defi ned under s 4 in New South Wales to include:(a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suff ers any other harm, and(b) any permanent or serious disfi guring of the person, and(c) any grievous bodily disease (in which case a reference to the infl iction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).Th ese statutory defi nitions are inclusive, so the common law defi nition continues to apply.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1277.57Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12727/09/2017 10:16:05200762Wound7.52 A wound is an injury which breaks through the whole skin, ie, both the inner and outer skin: see Vallance v R (1961) 108 CLR 56. Th is may range from a minor cut to serious, deep knife wounds.‘Occasioning’7.53 Many aggravated off ences refer to D ‘occasioning’ a particular level of injury: see, eg, assault occasioning ABH (s 59 (NSW)). Th e term ‘occasioning’ can be defi ned as requiring causation. Th us the off ence of assault occasioning ABH is nothing more than a common assault which happens to cause bodily harm. Consequently, the mens rea for the off ence is identical to that of common assault: see Zanker v Vartzokas.‘Causing’7.54 ‘Causing’ injury has been held to require that D committed an act or omission that substantially caused V to suff er the injury. Th ere is no requirement of direct or indirect application of force, provided D’s causal responsibility can be established.Elements of aggravated off ences in New South WalesAssault occasioning ABH7.55 D can be charged with assault occasioning ABH: see s 59. Th e prosecution must prove that D intentionally or recklessly committed a (psychic) assault or battery assault, that V suff ered ABH, and that D’s actions were a substantial and operating cause of these injuries: see Zanker v Vartzokas.Causing GBH and/or wounding7.56 Th ere are several diff erent charges for off ences causing GBH, and D’s culpability will revolve around his or her mens rea.Th e most serious off ence requires that D intended to wound or cause GBH to any person: see s 33. Th e prosecution must prove intention to infl ict GBH; that V’s injuries amounted to GBH or a wound; and that D caused this.Under s 35 D can be charged with reckless GBH or wounding. Th is requires that D recognised the possibility of ABH (not necessarily GBH or wounding); that V suff ered GBH or wounding; and that D caused this.In addition, s 54 provides an off ence for causing GBH by any unlawful act or omission.Assaults with particular injuries: South Australia and Victoria7.57 Th e Model Criminal Code Offi cers Committee recommended the replacement of the common law terms of ‘actual bodily harm’, ‘grievous bodily harm’ and ‘wounding’ with the terms ‘harm’ and ‘serious harm’. Th ese recommendations appear in the Model Criminal Code (Cth) as follows:5.1.1 Harm(1) In this Part, harm means physical harm or harm to a person’s mental health whether temporary or permanent.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm128Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12827/09/2017 10:16:052007627.57(2) Physical harm includes unconsciousness, pain, disfi gurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).(3) Harm to a person’s mental health includes signifi cant psychological harm, but does not include mere ordinary emotional reactions such as those of only distress, grief, fear or anger …5.1.2 Serious HarmIn this Part, serious harm means any harm (including the cumulative eff ect of more than one harm):(a) that endangers or is likely to endanger a person’s life: or(b) that is or is likely to be signifi cant and longstanding.Both South Australia and Victoria have introduced off ences causing harm that follow these recommendations.Off ences causing harm in South Australia7.58 In South Australia, s 21 defi nes ‘harm’ and ‘serious harm’ as follows:‘harm’ means physical or mental harm (whether temporary or permanent); and includes unconsciousness, pain, disfi gurement, and infection with a disease.‘mental harm’ means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm;‘physical harm’ includes — (a) unconsciousness; (b) pain; (c) disfi gurement; (d) infection with a disease;‘serious harm’ means harm that endangers a person’s life or harm that consists of, or results in, serious and protracted impairment of physical or mental function or results in serious disfi gurement.Th ese defi nitions are broadly consistent with the Model Criminal Code, replacing the common law terms of ABH and GBH.With regard to ‘mental harm’, s 22(5) provides that any off ence in Div 7A, such as causing harm or serious harm, does not apply unless D’s conduct either gave rise to a situation in which V’s life or physical safety was endangered and the mental harm arose out of that situation, or D’s primary purpose was to cause such mental harm. Section 22(5) mirrors the common law and was intended to limit the scope of criminal liability for causing mental harm.Th e term ‘serious harm’ was considered in R v Wilkinson (2008) 101 SASR 21 at [18]. In that case, D’s ‘brutal attack’ on his de facto had caused ‘serious and protracted impairment to both physical and mental function’. Th e Court took into account that this lasted for ‘some months, leaving permanent damage to the nose and teeth … ongoing amnesia … long-term psychological suff ering … It is evident that this disfi gurement continued for some time, although ultimately healing has occurred. Th e statutory provision does not suggest that the disfi gurement must be permanent disfi gurement’: at [18].Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1297.61Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 12927/09/2017 10:16:05200762Th e idea that ‘serious harm’ does not require permanent harm was confi rmed in R v Hawes [2009] SADC 127, where Chivell DCJ held that the loss of full functionality to V’s hand aft er being stabbed amounted to ‘serious harm’, despite V making a full recovery 12 months aft er the incident. Chivell DCJ suggested that the word ‘protracted’ in s 21 meant something less than permanent: ‘it means to prolong (time) so as to cause delay’; ‘to cause to last longer’; ‘to prolong’: at [27].Endangerment to life needs to actually endanger life, ie, the prosecution must prove the injuries were life-threatening: R v Barenregt [2008] SADC 35.Causation7.59 Section 21 also states that ‘a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm’ or took part in acts in the same incident that caused serious harm. Th is provision restates the long-established common law notion of substantial causation: see eg Royall v R (1991) 172 CLR 378. Th e aim was to provide clarity and simplicity to the term ‘cause’. Th e term ‘cause’ is wide. In Div 7A there does not need to be any application of force to V. All that is required is that D caused the harm. Th us, if D intentionally caused panic and injury in a crowded theatre by extinguishing lights and blocking doors and calling ‘fi re’, although this would not amount to a common law assault, D would be responsible under Div 7A for any injuries caused (based on the old common law case of R v Martin (1881) 8 QBD 54).Causation and multiple attackers7.60 In relation to causation, s 21 provides:If a victim suff ers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident, or together constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm.Th is means that if D causes various individual injuries, which alone would not amount to serious harm but together do amount to serious harm, then serious harm is established.In addition, if there are multiple attackers, then all who join in the attack are equally liable (providing they possess the necessary mens rea, or it is a joint criminal enterprise: see Chapter 11) for all injuries, even if it cannot be shown who infl icted what injury. All attackers are equally liable for all the consequences.7.61 Sections 23 and 24 extend liability to include not only actions, but also omissions. Section 23 criminalises a person who causes serious harm to another either intentionally or recklessly. Th e elements of s 23(1) — of causing serious harm with intent to cause serious harm — were summarised by Kourakis CJ in R v Cekic [2015] SASC 47 as follows: (1) that D caused harm to the alleged V; (2) that such harm is serious harm; (3) that D acted deliberately as opposed to accidentally; (4) that D acted unlawfully; and (5) at the time, D intended to cause serious harm: at [6]. Section 24 criminalises a person who causes harm to another, either recklessly or intentionally. Harms caused intentionally are more serious than harms infl icted recklessly.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm130Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13027/09/2017 10:16:052007627.627.62 Th e South Australian defi nition of recklessness in s 21 is in accordance with the common law, requiring that D ‘is aware of a substantial risk that his or her conduct could result in harm … and engages in the conduct despite the risk and without adequate justifi cation’. Th is emphasis upon ‘could’ (not ‘would’) suggests that South Australia’s concept of recklessness would be consistent with the common law requirement of recognition of the possibility of the prohibited outcome.Off ences causing injury in Victoria7.63 In Victoria, s 15 includes the following defi nitions: ◆injury means ‘physical injury’ or ‘harm to mental health — whether temporary or permanent’; ◆serious injury means an injury (including the cumulative eff ect of more than one injury) that ‘endangers life’ or ‘is substantial and protracted’ or ‘the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suff ers any other harm’; ◆harm to mental health includes ‘psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm’; ◆physical injury includes ‘unconsciousness, disfi gurement, substantial pain, infection with a disease and an impairment of bodily function’.Section 15 was amended in 2013 to provide detailed defi nitions of injury and serious injury. Serious injury may be regarded as equating with GBH at common law: DPP v Williams [1993] VR 15 per Hedigan J.Section 16 criminalises ‘a person who, without lawful excuse, intentionally causes serious injury to another person’. The prosecution must prove that D caused serious injury to V; D intended to cause serious injury, and did not merely intend to do an act which in fact caused serious injury; and the injury was caused without lawful excuse: see Westaway v R (1991) 52 A Crim R 336. Recklessness will not be sufficient.Section 17 criminalises causing ‘serious injury recklessly’, with s 18 criminalising causing injury intentionally or recklessly.It should be noted that the Victorian defi nition of ‘recklessness’ in off ences against the person diff ers from the common law defi nition of recklessness. In Victoria, conduct is ‘reckless’ if ‘there is foresight on the part of an accused of the probable consequences of his actions and he displays indiff erence as to whether or not those consequences occur’: see Nuri v R [1990] VR 641 at 643 per Young CJ, Crockett and Nathan JJ. In R v Campbell (1997) 95 A Crim R 391 the Court of Appeal held that the word ‘recklessly’ in the sections was used in the subjective sense as referring to a state of mind of a person who foresees a result of his or her actions as being likely or probable.In addition, ss 15A and 15B create off ences of causing injury in circumstances of ‘gross violence’. Th ese are aggravated off ences where D planned in advance to cause serious injury, acted in company with two or more people, had an off ensive weapon, and continued to cause injury to V aft er V was incapacitated.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1317.64Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13127/09/2017 10:16:05200762VICTORIAN APPROACH TO NON-SEXUAL OFFENCES AGAINST THE PERSON7.64 In 1985, Victoria reformed the categories of assaults and introduced new provisions. Th e common law off ence of assault and battery was not abolished and therefore continues to exist. Th us, the outline at the beginning of this chapter on common law assault continues to be relevant in Victoria. Th e statutory provisions have created diff erent off ences that can usefully be divided into fi ve categories, as follows:1. Off ences involving the infl iction of harm: see 7.63;2. Off ences involving a threat: s 20 criminalises threats to kill and s 21 criminalises threats to infl ict serious injury. Both off ences require that D either intended, or was reckless as to whether or not, the person would fear the threat would be carried out. Th reats may be constituted by words or by conduct or both: see R v Rich [1998] 4 VR 44.3. Off ences involving endangerment: ss 22–23 criminalise conduct endangering life and persons recklessly (respectively). In order to establish an off ence under s 22 the prosecution must prove the following:(1) Th e accused engaged in conduct; and(2) Th at conduct placed a person in danger (ie conduct that carried with it an appreciable risk) of death; (the actus reus)(3) Th e accused engaged in that conduct voluntarily;(4) A reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death; (the objective mental element) and(5) Th e accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances (the subjective mental element): R v Abdul-Rasool (2008) 18 VR 586 at [19] per Redlich JA. See also R v Wilson [2005] VSCA 78; Mutemeri v Cheesman [1998] 4 VR 484.4. Negligent infl iction of harm: s 24 criminalises negligent infl iction of serious injury. Th e jury should be directed that the act or omission took place in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that serious injury would follow, that the act or omission merits punishment under the criminal law: see R v Shields [1981] VR 717.5. In combination with other off ences: see ss 25–26 (other off ences include setting traps to kill or cause serious injury); ss 27–28 (extortion); ss 29–30 (off ences to prevent arrest); s 31 (assault with intent to commit an indictable off ence).Th ese categories are not any clearer than existing common law classifi cations, and statutory interpretation of off ences requires the common law for meaning. For example, ‘injury’ or ‘harm’ is only partially defi ned in s 15 (Vic). Other elements of off ences (such as ‘intentionally’, ‘recklessly’, ‘negligently’ and ‘without lawful cause’) are left undefi ned by statute, with the result that many of the diffi culties arising at common law continue to arise in these statutory provisions.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm1327.65Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13227/09/2017 10:16:05200762DEFENCES TO ASSAULTS7.65 D will not be liable for what would otherwise be an assault if D’s resort to force is lawful: see, eg, self-defence, discussed in Chapter 13.Force is lawful where: ◆the law recognises the situation as one where force can lawfully be resorted to; ◆the decision to use force is reasonable (objective test); ◆the quantum of force is reasonable (objective test); and ◆D believes that the use and quantum of force is reasonable (subjective test).Th e defence of provocation may be available as a defence to an assault requiring proof of the mens rea for murder in New South Wales and South Australia: see Chapter 5.Legal problem 1Malcolm and Andrew were abseiling together. Andrew was working his way down a sheer cliff , completely dependent on the rope that Malcolm was holding at the top of the cliff . Malcolm called down to Andrew: ‘Tell me who is sleeping with my wife or I will let go of this rope.’ Andrew was sleeping with Malcolm’s wife and panicked, thinking that Malcolm already knew, so he let go of the rope, falling to the bottom of the cliff . Andrew suff ered from a broken leg.Discuss Malcolm’s criminal liability.Answer: New South Wales and VictoriaAssaultMalcolm could be charged with an assault, potentially with aggravated elements: see s 61 (NSW); R v Patton (1998) 1 VR 7. The prosecution must prove all elements of the off ence beyond a reasonable doubt: see Woolmington v DPP [1935] AC 462. This is a (psychic) assault which requires intentional or reckless creation of the apprehension of imminent unlawful contact: see MacPherson v Brown (1975) 12 SASR 184.Actus reusThe prosecution must prove several elements to establish Malcolm’s criminal liability.An essential element of the off ence is that Andrew was in fear of imminent unlawful contact: see MacPherson v Brown. The facts clearly state that Andrew panicked, satisfying the requirement of fear.However, the requirement of fear of imminent unlawful contact may be diffi cult to establish because Malcolm’s threat is conditional: he will only let go of the rope if Andrew does not answer Malcolm’s question. This means that if Andrew met Malcolm’s request, then Andrew would have nothing to fear. The common law approaches conditional threats by considering whether or not the words of the threat suggest imminence. Given that Andrew was completely at Malcolm’s mercy, the prosecution would argue that this was an immediate and continuing fear: see Zanker v Vartzokas (1988) 34 A Crim R 11. The court would then look at whether or not Malcolm had the right to impose that condition: see Rozsa v Samuels [1969] SASR 205. Malcolm had no legal right to threaten to apply force or cause harm in the event of non-compliance, thus the words of Malcolm constituted an assault.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1337.65Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13327/09/2017 10:16:05200762The prosecution would be able to establish the actus reus of assault.Mens reaThe prosecution must also prove that Malcolm intentionally or recklessly created an apprehension of imminent unlawful contact: see R v Venna [1976] QB 421. The words and circumstances of the threat suggest that Malcolm intentionally frightened Andrew so that he would tell him the truth.Actus reus and mens rea at the same timeIt is clear that at the time that Malcolm made the threat he intended to and did frighten Andrew.Aggravated assault[Comment: This section could also be considered under the actus reus of assault.]The prosecution would seek to argue that this is an aggravated off ence in light of the injuries infl icted. The broken leg would be at least actual bodily harm, as it is an injury that interferes with the health and comfort of Andrew, and is more than merely transient and trifl ing: see R v Donovan [1934] 2 KB 498.The prosecution would also have to prove that Malcolm caused Andrew to break his leg. Malcolm might argue that Andrew’s letting go of the rope caused the injury, not Malcolm’s words.This case is similar to Zanker v Vartzokas, where D’s (psychic) assault caused V to jump out of a van to escape from D’s threats. It was held in that case that D was a substantial and operating cause of V’s injuries. The same reasoning would apply to Malcolm’s liability.ConclusionMalcolm would in all likelihood be found guilty of assault occasioning actual bodily harm.VictoriaMalcolm could also be charged under s 18 with causing injury intentionally or recklessly, or possibly under s 17 for causing serious injury recklessly. The prosecution must prove all elements of the off ence beyond a reasonable doubt: see Woolmington.The prosecution would be able to prove that a broken leg meets the statutory defi nition of injury as ‘physical injury’, and may further be able to prove that D caused a ‘serious injury’, as a broken leg is ‘substantial and protracted’: see s 15.The prosecution would have to prove that Malcolm caused the broken leg (see the reasoning above).The prosecution may have diffi culty in proving the mens rea of the off ence. They would have to prove that Malcolm intended to cause, or recklessly caused, injury to Andrew. The facts do not suggest that Malcolm intended to injure Andrew; in fact, his words suggest otherwise. The prosecution would have to prove that Malcolm recognised the probability that Andrew would be injured: see R v Campbell (1997) 95 A Crim R 391. It is unlikely that a jury would accept beyond a reasonable doubt that Malcolm recognised the probability at the time of the threat that Andrew would be injured. Therefore the prosecution would not be able to establish that Andrew was guilty under s 17 or s 18, due to his lack of mens rea.Answer: South AustraliaMalcolm could be charged with assault causing harm: see s 20. The prosecution must prove all elements of the off ence beyond a reasonable doubt: see Woolmington.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm1347.65Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13427/09/2017 10:16:05200762Actus reusUnder s 20, the prosecution must prove that Malcolm ‘threaten[ed] (by words or conduct) to apply force (directly or indirectly) to the victim’.Malcolm’s threat that he would let go of the rope would satisfy this requirement as a threat of indirect force: see s 20(1)(c). Moreover, he would have been able to carry out the threat, as Andrew was completely dependent upon him: see s 20(1)(c)(i). The prosecution may also establish that Andrew reasonably believed that Malcolm might carry out the threat (see s 20(1)(c)(ii)), but this would not be a necessary element.This conduct was not within the limits of what would be generally accepted in the community as normal incidents of social interaction: see s 20(2)(a).Harm is defi ned as physical harm which includes ‘pain’, and a broken leg would satisfy this requirement: see s 21.The prosecution would also have to prove that Malcolm caused the harm: see s 20(4). This is defi ned as ‘substantially contributes to the harm’: see s 21. Although Malcolm did not force Andrew to let go of the rope, his threat was a substantial and operating cause of Andrew’s reaction and the prosecution would be able to establish this element.The prosecution would have no diffi culty in establishing the actus reus.Mens reaSection 20 does not explicitly specify the mens rea for assaults by threats: see s 20(3). However, the prosecution would be able to establish that Malcolm intended to threaten Andrew.Mens rea and actus reus at the same timeThe prosecution would have no diffi culty in establishing that Malcolm intended to make the threats.ConclusionMalcolm would be guilty of assault causing harm: see s 20(4).Legal Problem 2Georgia was a waitress at a restaurant. Although Georgia and Max had broken up, Max kept coming to Georgia’s restaurant with his friends. They would order one dish and then stay and be loud and demanding. When Georgia told Max to leave he said, ‘I want you back and if I can’t have you, no one can.’ Georgia felt afraid and was also annoyed at Max. She responded: ‘If you keep hanging around I will put peanuts into your food.’ Georgia knew that Max was violently allergic to peanuts and could go into life-threatening anaphylactic shock if he even came into contact with them. Max was so terrifi ed that Georgia had put peanuts on his food that he ran out of the restaurant and slipped down the stairs of the porch in his hurry. As a result, Max sprained his ankle.Discuss Georgia’s liability, if any.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1357.65Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13527/09/2017 10:16:05200762Answer: New South Wales and VictoriaAssaultGeorgia could be charged with an assault, potentially with aggravated elements: see s 61 (NSW); R v Patton (1998) 1 VR 7. The prosecution must prove all elements of the off ence beyond a reasonable doubt: see Woolmington v DPP [1935] AC 462. This is a (psychic) assault which requires intentional or reckless creation of the apprehension of imminent unlawful contact: see MacPherson v Brown (1975) 12 SASR 184.Actus reusThe prosecution must prove several elements to establish Georgia’s criminal liability.An essential element of the off ence is that Max was in fear of imminent unlawful contact: see MacPherson v Brown. The facts clearly state that Max was terrifi ed, satisfying the requirement of fear. [Comment: Note how the answer uses specifi c words from the problem question like ‘terrifi ed’ to demonstrate how the facts satisfy the legal requirements.]It has been suggested that V’s fear must be reasonable, in the sense that a reasonable person would have also been in fear, ie, D’s liability is limited by an objective test: see Barton v Armstrong at 455 per Taylor J. However, this is contrary to common law principles that the victim should be taken as found: see R v Blaue [1975] 3 All ER 446. Clearly, it was reasonable for Max to feel fear in response to Georgia’s threat. Moreover, as argued below, Georgia knew that Max was allergic, and this was why she made a threat that would not frighten anyone who was not allergic. [Comment: This paragraph engages with an area of law that is open to some dispute about whether or not the fear of the victim needs to be reasonable. It draws on the facts of the question as well as legal precedent to make a strong argument.]However, the requirement of fear of imminent unlawful contact may be difficult to establish because Georgia’s threat is conditional: she will only put peanuts in the food if Max keeps hanging around. This means that if Max met Georgia’s request, then Max would have nothing to fear. The common law approaches conditional threats by considering whether or not the words of the threat suggest imminence. The common law would then look at whether or not Georgia had the right to impose that condition: see Rozsa v Samuels [1969] SASR 205. Georgia has no right to ban Max from the restaurant, but she might argue that her threat was in self-defence. In Rozsa v Samuels, the Court held that one ground for imposing a condition of this kind is in self-defence. For example, if A tried to enter D’s house and D prevented A by saying ‘If you attempt to enter I will knock you down’, this would not be an assault, because D had a right to impose this condition. Thus, based on Rozsa v Samuels it would be necessary to ask the question: if Max was annoying Georgia and had also threatened her, would Georgia have been justified in using peanuts? If yes, this would not be an assault. In Rozsa it was held that D had threatened excessive force which would have precluded reliance upon self-defence and, as a consequence, D was guilty of assault. In Georgia’s case the prosecution would argue that Georgia’s threat was life-threatening and clearly excessive. However, the defence might argue that Max’s statement ‘if I can’t have you, no one can’ could be regarded as life-threatening. It would be up to the jury to determine whether or not Georgia’s threat was excessive or proportionate. If it was excessive, then this element of the actus reus would be satisfied.Subject to the question of fact as to whether or not Georgia’s threat was excessive, the prosecution would be able to establish the actus reus of assault.Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Criminal Law ElementsTRIM SIZE: 165 x 235mm1367.65Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13627/09/2017 10:16:05200762Mens reaThe prosecution must also prove that Georgia intentionally or recklessly created an apprehension of imminent unlawful contact: see R v Venna [1976] QB 421. The words and circumstances of the threat show that Georgia intentionally frightened Max so that he would leave her alone.Actus reus and mens rea at the same timeIt is clear that at the time that Georgia made the threat she intended to and did frighten Max.Aggravated assault[Comment: This section could also be considered under the actus reus of assault.]The prosecution would seek to argue that this is an aggravated off ence in light of the injuries infl icted. The sprained ankle might be actual bodily harm, as it is an injury that interferes with the health and comfort of Max. It would depend on how severe the sprain was as to whether it was more than merely transient and trifl ing: see R v Donovan [1934] 2 KB 498.The prosecution would also have to prove that Georgia caused Max to sprain his ankle. This case is similar to Zanker v Vartzokas, where D’s (psychic) assault caused V to jump out of a van to escape from D’s threats. It was held in that case that D was a substantial and operating cause of V’s injuries. The same reasoning would apply to Georgia’s liability.ConclusionSubject to the prosecution proving that a sprained ankle was actual bodily harm, Georgia might be found guilty of assault occasioning actual bodily harm. The main question raised is whether her threat was suffi ciently excessive in the circumstances to amount to an assault.VictoriaGeorgia could also be charged under s 18 with causing injury intentionally or recklessly, or under s 20 with threats to kill. The prosecution must prove all elements of the off ence beyond a reasonable doubt: see Woolmington.Section 18: The prosecution would be able to prove that a sprained ankle meets the statutory defi nition of injury as ‘physical injury’: see s 15.The prosecution would have to prove that Georgia caused the broken leg (see the reasoning above).The prosecution may have diffi culty in proving the mens rea of the off ence. They would have to prove that Georgia intended to cause, or recklessly caused, injury to Max. The facts do not suggest that Georgia intended to injure Max; in fact, her words suggest otherwise. The prosecution would have to prove that Georgia recognised the probability that Max would be injured: see R v Campbell (1997) 95 A Crim R 391. It is unlikely that a jury would accept beyond a reasonable doubt that Georgia recognised the probability at the time of the threat that Max would be injured. Therefore the prosecution would not be able to establish that Georgia was guilty under s 18 due to his lack of mens rea.Section 20: Georgia could be charged with making threats to kill under s 20. That section requires that a person makes threats without a lawful excuse to kill a person. Clearly Georgia’s threat to give peanuts to Max was life-threatening given his allergy. Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

TRIM SIZE: 165 x 235mmAssault1377.65Spi-Crofts – Criminal Law Elements 6th ed Ch.7.indd 13727/09/2017 10:16:05200762Georgia might argue that her threat was lawfully excused due to self-defence. The reasoning detailed above in relation to Rozsa v Samuels and conditional threats would apply. The prosecution would also have to prove that she either intended that Max feared her threat to kill would be carried out, or was reckless as whether or not Max would fear the threat. The prosecution would not have diffi culty in proving the necessary mens rea. Thus, Georgia could be guilty under s 20 (Vic), subject to the prosecution proving that she did not have a lawful excuse.Answer: South AustraliaGeorgia could be charged with assault causing harm: see s 20. The prosecution must prove all elements of the off ence beyond a reasonable doubt: see Woolmington.Actus reusUnder s 20, the prosecution must prove that Georgia ‘threaten[ed] (by words or conduct) to apply force (directly or indirectly) to the victim’.Georgia’s threat that she would put peanuts in Max’s food would satisfy this requirement as a threat of indirect force: see s 20(1)(c). Moreover, she would have been able to carry out the threat as Max ordered food from the restaurant: see s 20(1)(c)(i). The prosecution may also establish that Max reasonably believed that Georgia might carry out the threat (see s 20(1)(c)(ii)), but this would not be a necessary element.This conduct was not within the limits of what would be generally accepted in the community as normal incidents of social interaction: see s 20(2)(a). However, Georgia might argue that the conduct was excused by law s 20(2)(b). She would seek to argue that her threat was based on self-defence — see the application of Rozsa v Samuels above. The key question would be whether or not her threat was disproportionate to Max’s behaviour and comments.Harm is defi ned as physical harm which includes ‘pain’, and a sprained ankle would satisfy this requirement: see s 21.The prosecution would also have to prove that Georgia caused the harm: see s 20(4). This is defi ned as ‘substantially contributes to the harm’: see s 21. Although Georgia did not trip Max over, her threat was an operating and substantial cause of Max’s reaction and the prosecution would be able to establish this element.The prosecution would have no diffi culty in establishing the actus reus, except for the open question of whether or not Georgia’s threat was excessive or excused as self-defence.Mens reaSection 20 does not explicitly specify the mens rea for assaults by threats: see s 20(3). However, the prosecution would be able to establish that Georgia intended to threaten Max.Mens rea and actus reus at the same timeThe prosecution would have no diffi culty in establishing that Georgia intended to make the threats.ConclusionThere some doubt as to whether or not a jury would fi nd that Georgia’s threat was disproportionate and thus an assault. Provided the jury found her threat was not excused by law, Georgia would be guilty of assault causing harm: see s 20(4).Crofts, P. (2017). Criminal law elements. LexisNexis Butterworths.Created from rmit on 2023-09-07 11:31:00.Copyright © 2017. LexisNexis Butterworths. All rights reserved.

VICTORIAN GOVERNMENT REPORTING SERVICES (Prepared by Legal Transcripts Pty Ltd) 229118 !Undefined Bookmark, I IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION Revised Not Restricted Suitable for Publication CR-19-01305 CR-22-00305 DIRECTOR OF PUBLIC PROSECUTIONS v JAMIE CROCKETT JUDGE: HIS HONOUR JUDGE GAMBLE WHERE HELD: Melbourne DATE OF HEARING: 22-25 and 28-30 March 2022 (Trial) 20 May 2022 (Plea) DATE OF SENTENCE: 28 June 2022 CASE MAY BE CITED AS: DPP v Crockett MEDIUM NEUTRAL CITATION: [2022] VCC 1021 REASONS FOR SENTENCE Subject: CRIMINAL LAW – Sentence. APPEARANCES: Counsel Solicitors For the Prosecution Mr R. Pirrie (Trial and Plea) Office of Public Prosecutions Ms D. Shivakumar (Sentence) For the Accused Mr R. Backwell Sarah Pratt & Associates

VCC:JG 1 SENTENCE DPP v Crockett HIS HONOUR: Introduction 1 Jamie Crockett, at trial you were found guilty of intentionally causing serious injury.1 The maximum penalty for that offence is 20 years’ imprisonment. This is a category 2 offence and as such, the court is required to impose an immediate term of imprisonment other than one imposed by way of a combination sentence, unless the court is satisfied that any of the statutory exceptions apply. Your counsel realistically did not seek to engage any of those exceptions in your case and acknowledged that this case ultimately called for a head sentence with a non-parole period. 2 You also fall to be sentenced for a separate and unrelated offence of prohibited person possess firearm, to which you have pleaded guilty.2 The maximum penalty for that offence is 10 years’ imprisonment. Intentionally cause serious injury 3 The circumstances in which you committed the offence of intentionally cause serious injury were ventilated at trial. The real issue was that of the identity of the gunman. The prosecution alleged that you were the gunman who shot the victim. Consistent with what had been foreshadowed in the defence response, that assertion was challenged by you through your counsel. 4 I must give due regard to the jury’s verdict which clearly indicates that they were satisfied to the criminal standard that you were the gunman and further, that at the time of discharging the firearm, you intended to cause serious injury to the victim who suffered a life threatening injury. 1 Charge 1 on indictment J13060768.A. 2 Charge 1 on indictment J13060768.B1.

VCC:JG 2 SENTENCE DPP v Crockett 5 In light of the jury’s verdict and the evidence called at your trial, I am satisfied of the following matters. 6 Shortly before 6 am on the morning of 14 November 2018, you were seated in the driver’s seat of a stationary Mercedes in a suburban street in Cranbourne when the victim Bruno Schwalger, also known as Bruno Tangi, arrived in a Holden Astra being driven by his friend, Damien Woolley. As Mr Tangi exited the vehicle and commenced to approach the front of your vehicle, you drove forward a short distance intimating that you may run him over. Mr Tangi then walked to the front driver’s side door of the Mercedes and appeared to converse with you for some few seconds through an open window. Things then escalated and Mr Tangi can be seen, on the relevant CCTV footage, to reach into the vehicle and engage in some type of a brief physical confrontation with you. He then took a step back from the vehicle. At that point, although it is not clearly shown on the footage, you pointed and then discharged a firearm at Mr Tangi at point blank range. The single projectile from that firearm hit him in the upper left thigh …. 7 To some degree, these events and their immediate aftermath were captured by CCTV cameras located in the area, although the cameras were not proximate to the scene and the footage is not entirely clear. 8 After being shot, Mr Tangi can be seen to hop on one leg and then escape on foot to his house located nearby. At one point, you drove the Mercedes in pursuit of him before ultimately driving away from the scene. 9 By the time an ambulance arrived, Mr Tangi had already lost a significant amount of blood. He went into hypovolemic shock and required urgent infusions of saline solution enroute to and on arrival at the hospital to temporarily increase his blood volume. The duty surgeon at the hospital, Dr Martin, gave evidence that such treatment was necessary to prevent the patient’s shock worsening as that could have led to an even lower blood pressure which in turn could have resulted in the patient suffering cardiac arrest due to the heart muscle not receiving a sufficient

VCC:JG 3 SENTENCE DPP v Crockett blood supply. Mr Tangi underwent surgery under general anaesthetic to repair the injury. Dr Martin also gave evidence that without such surgical intervention, the bullet injury sustained by Mr Tangi would have been life threatening. 10 The victim’s immediate post operative treatment included a tetanus vaccination, antibiotics to prevent infection and anticoagulants (blood thinners) to prevent clot formation. Dr Martin also explained that this type of injury is a very painful one. No doubt due to that fact and the nature of the surgery the victim underwent, he received immediate analgesia from the paramedics and further pain relief medication during his inpatient stay at hospital. On 16 November, he self-discharged from hospital against medical advice. He did not attend any follow up medical appointments. 11 Mr Tangi was a problematic witness for the prosecution. At trial, he claimed that someone other than Mr Crockett shot him. During examination in chief, the prosecution made a successful application to have him declared an unfavourable witness and were granted leave to cross-examine him. 12 In due course, police were called to give the following evidence. They attended on Mr Tangi at hospital shortly after 11 am on 15 November 2018. In an initial conversation, he told them that he had been on his way home with a friend when he was approached by a person he knew as Jamie Crockett who was waiting in a Mercedes in his street. They had a conversation which then escalated and ended up with Mr Crockett shooting him in the leg. A sworn handwritten statement was taken from him a short time later in which he gave a similar account. However, in his evidence at trial, Mr Tangi claimed to have no memory of making that statement or of telling police those things. When asked to comment on the appearance of the signature on the police statement, he equivocated somewhat, saying the ‘B’ looks like his normal signature but the rest does not. He went further and claimed that he did not even know anyone named Jamie Crockett, only someone called Jamie Cracker.

VCC:JG 4 SENTENCE DPP v Crockett 13 He was then reminded that at the committal hearing he had been asked whether he knew Jamie Crockett and had answered, ‘Yes, he was a friend’. Mr Tangi then acknowledged that he had said that and it was true. However, he went on to claim that he had not seen Mr Crockett on the morning in question and that the man who had shot him was unknown to him and had tattoos all over his face.3 In describing the confrontation in which he was shot, Mr Tangi appeared to paint himself as the aggressor and in a way that does not appear to be confirmed by the CCTV footage. For example, he said ‘… I had eye contact then rushed to the car … and just started throwing punches’. And, at one point, he seemed to put a different complexion on how the firearm came to be discharged, saying ‘… [W]e just wrestled and … he pulled a gun out and we wrestled and the gun went off’. 14 No doubt the jury scrutinised the evidence of Mr Tangi very carefully. However, in the end, they were satisfied that Mr Crockett was the man who shot Mr Tangi from the driver’s seat of the Mercedes. There were other pieces of evidence in the prosecution case which suggested that Mr Crockett was indeed in the relevant area in the lead up to the shooting and that he was interested in meeting Mr Tangi that morning. For example, Mr Woolley gave evidence that a man who he believed was connected with the Mercedes had, a short time before the shooting, asked him where ‘Nos’4 was and referred to himself by name as ‘Jamie’. Further, the SIM card that had been used to communicate with Mr Tangi and set up the meeting on the morning in question had been used in the very mobile phone that was located in Mr Crockett’s possession eight days later, on 22 November. 15 Having seen and heard all of the evidence, it is clear to me that Mr Tangi did his best at trial to sabotage his earlier identification of Mr Crockett as the shooter and to paint himself as the aggressor and the shooting as possibly accidental. But, there were a number of very implausible aspects to his account, both in 3 By contrast, Mr Crockett has no such tattoos. 4 A nickname for Mr Tangi.

VCC:JG 5 SENTENCE DPP v Crockett relation to his dealings with the police at hospital and in relation to the circumstances surrounding and involving the shooting itself. In respect of the latter, his account does not seem to be supported by the incontrovertible evidence provided by the relevant CCTV footage 16 In the end, it is unsurprising that the jury saw through those attempts. 17 That said, however, I do not draw any adverse inference against Mr Crockett on account of the approach that Mr Tangi took. After all, Mr Tangi would be well aware of the view that others within the criminal world take in relation to cooperating with the authorities and to giving evidence for the prosecution. 18 But, on account of the stance taken by Mr Tangi at trial and the legitimate exercise by Mr Crockett of his legal rights to refuse to answer police questions when interviewed and to not giving evidence at trial, there is much about this offence that is not and cannot be known. 19 For example, other than there being some sort of a disagreement between the two men, which quickly escalated into a struggle, the motivation for the shooting is clouded in mystery. It was not suggested that it was undertaken in self-defence and nor could it have been. The CCTV footage does not back up Mr Tangi’s implied suggestion that the firearm may have been accidentally discharged in the course of a struggle. In the end, all the court is left with is the fact that Mr Crockett was keen to meet up with Mr Tangi that morning. The speed at which the meeting descended into an argument and a struggle strongly suggests that there was some simmering ill will between the two men but fails to illuminate the reason or reasons for it. 20 It is clear, however, that Mr Crockett attended this meeting while armed with a loaded and shortened firearm.5 Whilst I am prepared to conclude that Mr Crockett was angry and willing to confront Mr Tangi at that meeting, and to 5 Estimated by Mr Woolley to be about 40cm in length.

VCC:JG 6 SENTENCE DPP v Crockett produce the firearm if necessary, I cannot find to the criminal standard that his decision to actually shoot the victim was a premeditated one formed before attending that meeting. Rather, the state of the evidence, such as it is, would suggest that it was discharged in the context of a rapidly unfolding and volatile meeting between the two men. That said, it was a gross over reaction to what was occurring. To have deliberately shot an unarmed man in a public street in full view of at least one other person, namely Mr Woolley, is a very serious thing to have done, about which I will say more later. Prohibited person possess firearm 21 Mr Crockett, the circumstances in which you were found in possession of the other firearm are set out in the typed prosecution opening which was tendered as Exhibit A on the plea hearing. 22 On 22 November 2018, a woman named Evangelia Christou noticed that you were in possession of a black Louis Vuitton bag when she arrived to pick you up. After spending some time together, the two of you attended a friend’s house at about 1 pm that afternoon. Police attended approximately 20 minutes later and arrested you in a nearby laneway as you sought to flee on foot. When they conducted an authorised search of Ms Christou’s vehicle a short time later, police located the black Louis Vuitton bag inside of which they found a home made handgun. Subsequent examination and testing of that firearm strongly suggested that your DNA was on the grip and trigger areas of that firearm. 23 When later interviewed, you admitted to possessing and owning that firearm. 24 The firearm is depicted in the bundle of photographs tendered as Exhibit B on the plea hearing. 25 An examination of that weapon was conducted by a police ballistics expert. The weapon was found to be loaded but not operational. However, it was capable of being rendered so.

VCC:JG 7 SENTENCE DPP v Crockett Pre-sentence detention 26 Although you have remained in custody for the entire period since you were remanded in custody for this matter on 23 November 2018, you are unable to rely on that entire period as pre-sentence detention since, in the interim, you were sentenced to a sentence of just over two and a half years with a non-parole period of 18 months. That sentence was imposed by Judge Pullen on 19 May 2020 and expired on 29 June 2021 because you voluntarily had your bail on that matter revoked on 27 March 2019 and could therefore rely on 445 days’ pre-sentence detention as at the date on which Her Honour sentenced you. Of course, that period cannot be double counted now. 27 As at but not including the date of the plea hearing in this matter, the total period of pre-sentence detention that could be declared in respect of this matter was 448 days. That total period was made up of the 123 day period between 23 November 2018 and 26 March 2019 and the 325 day period between 29 June 2021 and 19 May 2022. 28 As at but not including the date of today’s sentence hearing, the total pre-sentence detention period that can be declared for this matter is 487 days. 29 In calculating the sentence to be imposed for the current charges, I need to have regard to the history of the proceedings in that other matter to ensure that the sentence imposed is a just one and that when viewed globally, the effective sentence for both matters is commensurate with the totality of your criminality, no more and no less. As such, totality considerations are clearly engaged here at a level beyond the fact that you fall to be sentenced for two offences committed in relatively close temporal proximity to each other. Prior criminal record 30 As revealed by the contents of the prior criminal record filed with this court, you have a very relevant prior criminal history, Mr Crockett.

VCC:JG 8 SENTENCE DPP v Crockett 31 In May 2014, you appeared in the Children’s Court in respect of 30 offences, including carry dangerous article in public, possess controlled weapon, possess prohibited weapon, make threat to kill and unlawful assault. For that offending, you were placed on six months’ probation, without conviction. 32 You have previously appeared in the adult jurisdiction on four occasions. 33 In May 2015, you were convicted and sentenced to be detained in a Youth Justice Centre for two years and two months for four offences, the most serious of which were aggravated burglary and false imprisonment. 34 You received a further three months’ detention in December of that year for contravening a family violence intervention order and assault emergency worker on duty. 35 In August 2016, you were sentenced to a further six months’ detention for offences that included possess controlled weapon and possess cartridge ammunition. 36 Your most recent prior court appearance was in February 2017, at which time you were sentenced to an effective total sentence of 15 months’ imprisonment with a non-parole period of eight months. Your offending on that occasion included unlawful assault, possess handgun with a barrel length less than 120 millimetres, possess imitation firearm, possess prohibited weapon, possess controlled weapon and possess dangerous article in a public place. Subsequent criminal history 37 In addition to those prior convictions and findings of guilt, you also have a relevant subsequent criminal record. 38 It involves a single court appearance in this court on 19 May 2020, at which time you were sentenced to a total effective sentence of two years, six months and seven days’ imprisonment for one charge of carjacking and a summary charge of

VCC:JG 9 SENTENCE DPP v Crockett breach condition of parole. A non-parole period of 18 months was fixed. A total of 445 days was declared as pre-sentence detention already served. However, you could never be considered for release on parole and ended up serving the entire head sentence because you remained on remand for the current charges. In line with the requirements of the totality principle, I have given that fact appropriate weight when determining the appropriate sentence to impose for these charges. 39 The circumstances of that earlier offending are described by the sentencing judge in her sentencing reasons, a copy of which were tendered as Exhibit C on this plea hearing. At the time of sentencing, Judge Pullen noted that it occurred on 29 January 2018, some six weeks or so after you had been released on parole. Relevant Chronology 40 Before turning to consider your personal circumstances, Mr Crockett, it is worth noting some aspects of the chronology of events since you committed the carjacking offence on 29 January 2018. You were on parole at the time you committed that offence. You had been granted parole on 22 November 2017 in relation to the offences for which you had been sentenced on 9 February 2017. At the time that your parole was cancelled, you owed four months and 25 days to the Parole Board which you duly ended up serving between 5 April and 27 August 2018. You were then released on bail for the carjacking offence on 21 September 2018. You were still on that bail at the time that you committed the current offences, which is an aggravating factor of your offending. Personal circumstances 41 I now turn to outline your personal circumstances, Mr Crockett.

VCC:JG 10 SENTENCE DPP v Crockett 42 They have been helpfully outlined in your counsel’s written submissions and in a very recent report prepared by the psychologist, Dr Aaron Cunningham.6 43 You were 22 years of age when you committed the current offences. You turned 26 very recently, having been born on 2 June 1996. 44 You are the second youngest child in a very large family. You have two siblings and ten half siblings. Your upbringing was dysfunctional and disadvantaged. Both parents were alcoholics and drug users. You were subjected to family violence at the hands of your father and to sexual abuse by a half-brother. Your parents separated about five years ago. 45 You were born with osteomyelitis and septic arthritis in your left hip which ultimately resulted in you having a hip replacement at the young age of 13 after which you were wheelchair bound for seven months. 46 You attended many secondary schools owing to the behavioural issues that you were experiencing. You left school and home at the age of 15. 47 Since that time, you have worked intermittently with your father building caravans. 48 You have a lengthy history of substance abuse which commenced in the aftermath of your surgery and escalated at about the time that you left school. You commenced to drink alcohol and then use cannabis, heroin and methamphetamines. You have also used GHB since age 17. You can now see that you turned to drug abuse to escape your thoughts and feelings. As noted by Dr Cunningham, you appear to have become lost in a spiral of drug abuse and offence behaviour until your most recent incarceration. You have described your life as a ‘crash course’ during the time that you have used drugs. However, you have been drug free in custody for a significant period now and are currently engaged with the buprenorphine injection program. 6 That report was dated 18 May 2022 and tendered as exhibit 2 on the plea.

VCC:JG 11 SENTENCE DPP v Crockett 49 You have two children of your own, from different mothers. You have a seven year old son from a previous relationship who lives with his maternal grandmother. You have had no contact with he or his mother in recent years but are currently making efforts to resume contact with that son. You have been in your most recent relationship for approximately four and a half years and that union has produced a son who is now aged three. Whilst your current partner remains supportive, the relationship has undergone some additional stress since you were recently convicted at trial. 50 You were assessed by the psychologist, Dr Aaron Cunningham, on 18 May this year, that is, after you had been convicted of this offence of intentionally cause serious injury. He concluded that you suffer from a post-traumatic stress disorder which stems from the abuse you experienced in your childhood. You attempt to avoid such recollections through drug abuse. In Dr Cunningham’s view, you present with marked arousal in the form of hypervigilance, reckless and self-destructive behaviour, irritability and outbursts of anger and sleep disturbance. After conducting a risk assessment, he concluded that you present as a moderate risk of future violent offending. That would increase in the context of any further drug abuse. 51 You appear to have made a concerted effort to advancing your rehabilitation prospects since going into custody. Initially, you were able to engage with multiple courses and weekly counselling. You were engaged with drug rehabilitation programs and with psychiatrists on a fortnightly basis. In addition, you had weekly contact visits with your family and two hours per month of relatively unsupervised contact visits. As you explained to Dr Cunningham, that all changed when Corrections had to implement COVID19 related restrictions. And, in addition, you have been subject to various lockdowns, including recently whenever a COVID case is detected. The longest lockdown period you have experienced has been one month.

VCC:JG 12 SENTENCE DPP v Crockett 52 As is clear from what she told Dr Cunningham and in her letter to this court, your sister, Josephine, has been impressed with the dramatic and positive change that you have exhibited whilst in custody. In her view, you now appear to be more grounded and equipped with greater understanding and purpose in your life. 53 In his report, Dr Cunningham notes that you have benefited from the continuing support that you have received from your partner and sister. You are motivated to try and become a better person. The COVID-19 restrictions imposed by the custodial authorities have severely curtailed your rehabilitative and treatment programs and you have since struggled with lockdowns and a lack of support. Notwithstanding those difficulties, however, you have maintained motivation for self-improvement with a view to leading a more stable life in the community. 54 In terms of treatment recommendations, Dr Cunningham notes that you would benefit from continuing psychological and drug and alcohol support in the community, as well as from maintaining your supportive relationship and accommodation. 55 In Dr Cunningham’s view, a lengthy period of incarceration at this time may compromise your rehabilitative efforts and aggravate your symptoms of hopelessness. Ceasing drug use would be the main factor in decreasing your risk of re-offending. Engaging with community rehabilitative efforts and maintaining your supports would improve your prospects for rehabilitation. Matters in mitigation 56 Your counsel was able to rely on the following matters in mitigation, Mr Crockett. 57 Once arrested by police, you cooperated by way of admitting to possession of the handgun and then pleaded guilty to the corresponding charge of prohibited person possess firearm at what I accept to be an early stage. I note that the final

VCC:JG 13 SENTENCE DPP v Crockett resolution of that matter was delayed until such time as the trial in respect of the charge of intentionally causing serious injury could be held. 58 Through that plea you have demonstrated a preparedness to facilitate the course of justice. By opting to take that course during the COVID-19 pandemic when the court is facing a significant trial backlog and intense listing pressures, you are deserving of an even greater sentencing discount for that offence than would otherwise have been the case in pre-COVID-19 times. That is because the utilitarian value of a plea entered in those circumstances is, as the Court of Appeal has clearly stated, greater. 59 The court must also recognise the more onerous conditions in which you have been in custody during the latter part of your remand for these charges and whilst serving part of the period to which you were sentenced by Judge Pullen. Of course, I am referring to the period since early 2020 when the COVID-19 pandemic first impacted. You have described that negative and somewhat demotivating experience to Dr Cunningham. There have been a number of lockdowns and a compromised ability to have contact visits, access to programs and work opportunities, due to the restrictions Corrections have had to put in place and, to varying degrees, maintain or re-implement, in order to deal with the unpredictability of the COVID-19 pandemic. Given the problems which this state and NSW have been having in more recent times trying to deal with outbreaks of the virus in gaols, I am prepared to accept that you, like many prisoners, will be concerned about contracting the virus while in a custodial environment in which you have only a very limited ability to control your own movements and living conditions. 60 HIS HONOUR: Mr Crockett, I note or I have been told that you have just put your hand up. Can you still hear me? 61 OFFENDER: Yeah, I can. Just one – I – I’ve only just got over COVID-19. I actually caught it. I only just got out of lockdown.

VCC:JG 14 SENTENCE DPP v Crockett 62 HIS HONOUR: From having yourself had COVID? 63 OFFENDER: Yeah, I tested positive for seven days. 64 HIS HONOUR: Well, as you would readily appreciate, Mr Crockett, someone can get COVID on more than one occasion. So in that context – and thank you for that update – I am still prepared to accept that you will nonetheless have some concern about contracting a different strain of the virus while in a custodial environment. So that factor does not become irrelevant in the current circumstances. 65 Notwithstanding those difficulties, you have done your best to use your time in custody as productively as you can. Those efforts are even more noteworthy given the difficult upbringing that you endured. Whilst in custody, you have worked as a billet. You have also undertaken courses, including drug rehabilitation courses. The multiple negative urine screen test results tendered on the plea appear to provide some support for the fact that, as you have indicated, you have remained drug free whilst in custody. You have also engaged with counselling services and psychiatrists in relation to your mental health issues. All of that is to your credit and suggests that you are truly motivated to reform. 66 As already noted, there has been a delay of over three and half years between the date on which you were charged with committing these offences and the date on which you will be sentenced. That is a significant period, no doubt explained to a significant degree by the difficulties that this court has had in trying to conduct trials during the currency of the COVID-19 pandemic. Whatever be the reasons for this delay, it cannot be said that you were in any way to blame. I accept, therefore, that such delay has meant that you have had this matter and your ultimate fate hanging over your head for a considerable period with all of the uncertainty and anxiety that could be expected to flow from such a delay. I have been told by your counsel that you have not been a management problem whilst

VCC:JG 15 SENTENCE DPP v Crockett in custody and that, together with the positive steps that you have taken towards self-improvement over the past few years, suggests that your prospects of rehabilitation are better now than when you were first charged and remanded in custody for the current offences. Given your age and the fact that you have had plenty of time to reflect on your situation whilst in custody, I am prepared to allow for the possibility that you may well have undergone and be still undergoing a process of maturation and personal development. That is certainly the impression I have gleaned from the letter you have written to the court and from the positive testimonials written by your sister, Josephine, and your partner, Chantelle. 67 Fortunately, you have the continuing support of your current partner as well as your sisters and father. You propose to live with your partner and son on your eventual release from prison. I accept that you are again likely to be able to work with your father once released. All of those matters should act as protective factors in your case but do not guarantee your ability to remain drug and offence free in the community. Clearly, as Dr Cunningham has noted, ongoing counselling and treatment for your drug addiction and mental health issues will be a key aspect of any serious attempt at long term rehabilitation in your case. I do not underestimate the difficulty of the task that lies ahead of you in that regard. It would be naïve to do otherwise. Objective gravity of the offending 68 Another important consideration that this court must have regard to is the objective gravity of the offending in which you engaged. 69 As indicated by the high maximum penalty for intentionally causing serious injury, any such offence must be regarded as intrinsically serious and be treated very seriously.

VCC:JG 16 SENTENCE DPP v Crockett 70 I regard this example of intentionally causing serious injury as falling in the mid-range on the spectrum of seriousness for this type of offence. It was committed by means of the discharge of a loaded firearm at close range. The victim was unarmed. He suffered a painful gunshot injury to his left leg and I am satisfied that it would have taken some weeks if not months for him to fully recover from the physical aspects of that injury. I also note that the shooting occurred in a residential street at a time when some members of the public could be expected to be awake and going about their normal daily activities. That offence was witnessed by Mr Woolley and others were subjected to the traumatic aftermath when left to attend to the bleeding and no doubt distressed victim until the arrival of the ambulance. It is a troubling aspect of this offence that it remains unexplained to this day. And, of course, the offence is made more serious and the offender’s moral culpability must be viewed as increased by the fact that Mr Crockett shot the victim while on bail for another serious indictable offence. 71 Those things said, I also note that there is no real evidence suggesting that this offence was premediated or involved significant planning. It is also relevant to note that the firearm was discharged once not multiple times and that Mr Crockett appears to have taken aim at the victim’s leg as opposed to a more vital area of his body. As far as the range of injuries that can be regarded as serious under the relevant statutory definition, I regard this serious injury to fall in the mid-range. Whilst clearly a serious injury on account of its life threatening nature, there is nothing to suggest that Mr Tangi had anything but a normal and uncomplicated physical recovery. Indeed, he was able to discharge himself early and appears not to have re-presented to any hospital at any later time. 72 As for the other offence, I note that it carries a relatively high maximum penalty and so must be viewed as also being extrinsically serious. I consider this offence to also be a mid-range example of its type by reference to the spectrum of seriousness for such offences. It involved a loaded albeit temporarily non-operational firearm. It was aggravated by the fact that it was committed whilst on

VCC:JG 17 SENTENCE DPP v Crockett bail for another serious indictable offence. Mr Crockett’s level of moral culpability must be seen as correspondingly elevated. It is quite troubling to this court that Mr Crockett would choose to arm himself with yet another firearm in the aftermath of the shooting incident, yet that is exactly what he appears to have done. And, again, his offending is unexplained. I am satisfied that such possession on his part was not undertaken lightly or for any benign purpose. Precisely why he had it I am unable to conclude. Whether it was as a means of self-protection fearing a reprisal from Mr Tangi or his associates, or for the purpose of committing another offence, I simply cannot say. But either way, it does not reflect well on Mr Crockett. 73 When the circumstances of these two offences are assessed, and after having regard to his very relevant prior criminal history for offences involving weapons and/or violence, Mr Crockett’s level of moral culpability must be viewed as significant. Relevant sentencing principles 74 Quite clearly, this offending, and in particular that involving the serious injury charge, requires this court to give significant weight to the principles of denunciation and general deterrence. The community is rightly concerned about the possession by prohibited persons of firearms and even more troubled by any resort to such weapons for the purpose of causing serious injury, particularly in a public place. Understandably, there is a corresponding expectation that when a court sentences an offender for this type of offending, it will impose a sentence that makes it very clear that such serious criminal conduct will not be tolerated and which provides a suitable measure of discouragement to others in the community that might be contemplating acting in a similar way. 75 There are a number of relevant considerations to be borne in mind when determining the weight to attach to the sentencing principles of specific deterrence and protection of the community. Mr Crockett has a very relevant

VCC:JG 18 SENTENCE DPP v Crockett criminal history and has been undeterred by past sentences involving youth detention and adult imprisonment. Furthermore, he committed these offences whilst on bail. Unless and until he comes to grips with his serious drug and mental health issues, he will remain a moderate if not higher risk of re-offending. And, as his recent criminal history reveals, the seriousness of the offences he is prepared to commit has been escalating. But, those matters cannot be viewed in isolation and Mr Crockett’s prospects are now better than what they were when he committed these offences. 76 This court must also have regard to Mr Crockett’s age and prospects of rehabilitation. Having recently turned 26, he must be regarded as a relatively young man who, with the right attitude and level of commitment, is capable of achieving some level of rehabilitation. There are some positive signs which suggest that he is motivated to turn his life around although the real test will come when he is released into the community. In the end, all relevant matters considered, I have concluded that Mr Crockett’s prospects are fair to reasonable, albeit somewhat guarded. Like Dr Cunningham, I am of the view that those prospects would be enhanced were Mr Crockett to undergo a suitable period of counselling and treatment which targeted his underlying drug addiction and mental health issues. 77 This court must impose a just sentence on Mr Crockett. In assessing what is just, regard must be had to the nature and seriousness of his offending, including any aggravating and mitigating features, as well as his personal circumstances, including the matters in mitigation upon which he can rely. Individualised justice is what is called for. 78 The sentencing principle of parsimony, while always a relevant consideration, is particularly important where, as here, an offender with a relevant criminal history falls to be sentenced for serious offending in circumstances where he has made positive progress over a significant period between the date of offending and the

VCC:JG 19 SENTENCE DPP v Crockett date of sentence. That is even more so when that offender is still relatively young and at risk of becoming institutionalised and deflated if faced with a very stern and lengthy sentence. For reasons touched upon by Dr Cunningham, that is neither in Mr Crockett’s nor the community’s best interests. Whilst there are of course limits to what this court can do in assisting Mr Crockett to rehabilitate, it seems to me to be appropriate in this case to attempt to foster and encourage his prospects, particularly by way of imposing a somewhat disparate non-parole period by reference to the head sentence. 79 As I have already noted, the totality principle arises for consideration in this case in a number of respects. First, the two offences for which Mr Crockett now falls to be sentenced were committed within a week or so of each other. Whilst each offence is discrete and involves a separate level of criminality on his part, a sensible level of concurrency as between the individual sentences imposed for those offences is called for. Further, and as I have already observed, Mr Crockett was denied the opportunity for possible release on parole in respect of the Judge Pullen sentence on account of his arrest and remand for the current charges. Had he been sentenced for the Judge Pullen charges and the current charges at the same time, it is likely that there would have been a level of concurrency as between the two sentences. I have taken all of those matters into account when determining what an appropriate and just sentence is for the current charges. Sentencing submissions 80 In his realistic submissions on penalty, Mr Backwell urged the court to sentence Mr Crockett in a way that did not extinguish the hope that he has for reuniting with his family and embarking on a more productive lifestyle in the community in the not too distant future. As he appropriately acknowledged, such a sentence would have to be imposed by way of a head sentence and non-parole period.

VCC:JG 20 SENTENCE DPP v Crockett 81 Counsel who appeared on behalf of the Director, Mr Pirrie, emphasised the serious nature of this offending and the relevance of Mr Crockett’s criminal history. He pointed out the need to emphasise such sentencing factors as deterrence, denunciation and just punishment and ultimately submitted that nothing short of a sentence comprising a head sentence with a non-parole period was appropriate to deal with the seriousness of this offending. Analysis 82 In my view, this case clearly demands the imposition of a custodial sentence in the form of a head sentence with a non-parole period. 83 That said, however, it must also be noted that there are at least some significant matters in mitigation that Mr Crockett can call in aid and they have influenced me to impose a materially lesser sentence than I otherwise would have, including a non-parole period that is somewhat disparate when viewed against the head sentence. I have taken that course in order to keep any sentence to the minimum that the justice of this case requires and in order to promote and encourage Mr Crockett’s now improved prospects of rehabilitation. Sentence 84 Accordingly, I will convict Mr Crockett in respect of each charge and sentence him to the following terms of imprisonment. 85 On Charge 1 on indictment J13060768.A, intentionally causing serious injury, five and a half years. 86 On Charge 1 on indictment J13060768.B1, prohibited person possess firearm, 12 months. 87 The sentence of five and a half years imposed in respect of the intentionally causing serious injury charge will be the base sentence.

VCC:JG 21 SENTENCE DPP v Crockett 88 In all of the circumstances of this case, I consider that it is appropriate to order that four months of the sentence imposed for the prohibited person possess firearm charge be served cumulatively with that base sentence. 89 Accordingly, the total effective sentence is five years and 10 months’ imprisonment. 90 In respect of that head sentence, I fix a non-parole period of three and a half years. Pre-Sentence Detention 91 Pursuant to s18 of the Sentencing Act 1991, I declare that Mr Crockett has served a total of 487 days pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court. Section 6 AAA Indication 92 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to the offence of prohibited person possess firearm, I would have sentenced Mr Crockett to a period of 18 months’ imprisonment for that offence and cumulated six months of that sentence on the base sentence of five and a half years. Ancillary Orders 93 I make the disposal order in the amended terms sought by the prosecution, pursuant to s78 (1) of the Confiscation Act 1997. I note that the making of this order was not opposed by the defence.

VCC:JG 22 SENTENCE DPP v Crockett 94 And, I also I make the forfeiture order in the terms sought by the prosecution, pursuant to s151 of the Firearms Act 1996. The making of that order was again not opposed by the defence. Other Matters 95 Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Backwell? 96 MR BACKWELL: No, your Honour. 97 MS SHIVAKUMAR: No, your Honour. 98 HIS HONOUR: Mr Backwell, do you want to take advantage of the current link to Mr Crockett to speak to him briefly after I leave the Bench? 99 MR BACKWELL: If I may, sir, yes, please. 100 HIS HONOUR: Well, I will permit that in the usual terms, noting that it will not be able to be conducted in terms of complete privacy and confidentiality, Mr Backwell. Mr Crockett, Mr Backwell will speak to you briefly after I leave the Bench, all right. 101 OFFENDER: Yes. Thank you for your time, Your Honour. 102 HIS HONOUR: Thank you, counsel. Yes, I will adjourn the court until 3.15 pm tomorrow. Thank you. – – –

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Explain the legal basis for Jamie Crockett being found guilty of the offence of ‘Intentionally Causing Serious Injury’ (i.e. explain the elements of the offence and the facts which support/prove each element).

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