PARTIES:	WAYNE
V
BOLDISTON

TITLE OF COURT:	In the Supreme Court of the Northern
Territory of Australia

JURISDICTION:	JUSTICES APPEAL from COURT of SUMMARY
JURISDICTION exercising Territory Jurisdiction

FILE W:	sec 62 of 1991

DELIVERED:	Delivered at Darwin 6 July 1992 HEARING DATES:	Heard at Alice Springs 5 June 1992 JUDGMENT OF:	Mildren J
CATCHWORDS:

APPEAL	AND	NEW	TRIAL	-	Appeal	-	General	principles Admission of fresh evidence - Fresh evidence led - Appeal to be determined not by whether magistrate fell into error but by whether on evidence conviction should stand - Court exercising original not appellate jurisdiction
Seears v McNulty (1987} 28 A Crim R 121, applied.
APPEAL AND NEW TRIAL - Appeal - General principles - Points and objections not taken below - Notice of Appeal amended - New ground that on facts conviction should not have been proceeded to - Whether facts sufficient in law to establish bodily harm
Kooba Pty Ltd v Hughes (1986} 22 A Crim R 241, applied.
CRIMINAL LAW AND PROCEDURE - Particular offences - Offences against the person - Facts constituting bodily harm and an injury to health - Question of degree resolved by reference to the facts in each case, particularly the injury and its immediate consequences
Criminal Code Act 1983 (NT),ssl,186,188(1) and 188(2}
CRIMINAL LAW AND PROCEDURE - Jurisdiction, practice and procedure - Judgment and punishment - Sentencing - Effect of a sentence on dependants - Generally an irrelevant factor in sentencing - Exceptional circumstances required
Adami & Adami (1982) 2 A Crim R 8, applied.
R v Wirth (1976} 14 SASR 291, applied.

CRIMINAL LAW AND PROCEDURE - Jurisdiction - Practice and procedure - Judgment and punishment - Sentencing - Assault provoked in a sense - Assault was retaliation after three days rather than acting in heat of moment - Court cannot encourage taking of law into own hands

CRIMINAL	LAW    AND	PROCEDURE	-		Jurisdiction			- Practice and procedure					Judgment		and		punishment				Sentencing sentencing	of first of ei:ider for single offence - Use of weapon	and		nature of	inJury constituted	circumstances	of substantial			gravity  -  Not shown that magistrate	erred	in imposing	short custodial		sentence -	Need		for special and general deterrence

Birch v Fitzgerald (1975) 11 SASR 114, applied. Yardley v Betts (1979) 1 A Crim R 329, applied. Coles v Samuels (1972) 2 SASR 488, referred to.
Gadatjiya	v	Lethbridge	(unreported,	Mildren	J,	28/2/92), referred to.

STATUTES	-	Interpretation - Bodily Harm - Impermissible to construe a definition by reference  to  the term defined	- Special meaning given to the words must be applied whether or not it accords with the ordinary meaning
Criminal Code Act 1983 (NTJ,ssl,186,188(1) and 188(2)
Wacal Developments	Pty Ltd  v Realty Developments	Pty Ltd
(1978) 140 CLR 503, applied.

STATUTES	-	Interpretation - Bodily Harm - Natural meaning of word in a code is not to be qualified by antecedent law
Brennan v The King (1936) 55 CLR 253, applied.
Mellifort	v	Attorney-General for  the state of	Queensland
(1991) 173 CLR 289, applied.
Tranby (1991) 52 A Crim R 228, discussed and not followed.
STATUTES - Interpretation - Grievous bodily harm - Bodily harm - Health - Meaning of "health" should be considered as part of composite phrase in definition of bodily harm

Criminal Code Act 1983 (NTJ,ssl,177,188(1) and 188(2) Tranby (1991) 52 A Crim R 228, discussed and distinguished. Registrar of Titles (WA) v Franzon & Ors (1976) 50 ALJR 4, referred to.
Williamson Pty Ltd v Barrowcliff [1915) VLR 450, referred to.

STATUTES - Operation and effect of statutes - B_odily harm - Disfigurement amounting only to minor scarring and not otherwise interfering with the proper functioning of the body does not amount to bodily harm - Question of degree resolved by reference to the facts in each case particularly the injury and its immediate consequences
Criminal Code Act 1983 (NTJ,ssl,188(1) and 188(2)

REPRESENTATION

Counsel Appellant: Respondent:
Solicitors Plaintiff: Defendant:

M Howden C Roberts

CMLAS DPP

Judgment category classification: CAT A Court Computer Code:
Judgment ID Number: MIL92024 Number of pages: 14
General Distribution

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS

N' 62 of 1991
IN	THE	MATTER	OF	A JUSTICES APPEAL
BETWEEN:
POLLYANNA NUNGARI WAYNE
Appellant

AND:

MICHAEL GERARD BOLDISTON
Respondent

CORAM: Mildren J

REASONS FOR DECISION
(Delivered 6 July 1992)

The appellant pleaded guilty to a charge against sl88(1) and (2) of the Criminal Code, of unlawful assault involving a circumstance of aggravation, viz., that the victim of the assault thereby suffered bodily harm. The Court of Summary Jurisdiction imposed a sentence of imprisonment. The appellant originally appealed to this Court on the sole ground that the penalty was manifestly excessive. After hearing submissions, I reserved my decision. Whilst considering this matter, it seemed to me that the facts alleged against the appellant to which she had pleaded guilty probably were not sufficient in law to establish the circumstance of aggravation alleged, and I called this matter on again and drew to the parties' attention the decision of the Court of Criminal Appeal of Queensland in Tranby (1991) 52 A Crim R 228, which discussed the meaning to be given to the word "health" as that word appears in the definition of "grievous bodily harm" contained in sl of the Criminal Code, Queensland.

The appellant then sought to amend the Notice of Appeal to add a further ground as follows:

"That on the facts disclosed the learned Stipendiary Magistrate should not have proceeded to enter a conviction in respect of the information."

Having regard to the deci ion of Asche J (as he then was) in Kooba Pty Ltd v Hughes (1986} 22 A Crim  R 241,  the respondent did not oppose the amendment sought, and I granted leave to amend accordingly.

The facts alleged by the prosecutor in the court below were that at about 9.00 a.m. on Friday, 7 December 1990, the appellant went to the Institute for Aboriginal Development classroom at 19 Gap Road, Alice Springs. outside the classroom, the appellant picked up a broken bottle, entered the room, and slashed a woman on each side of her face with the broken bottle. The victim was taken to Alice Springs Hospital where the wounds required eighteen stitches. At the hearing of the appeal before me I received further evidence by consent of the parties concerning the nature of those injuries. Firstly, the appellant tendered a medical report from the Alice Springs Hospital. This report states, omitting the formal parts:
"On examination the patient was distressed and uncommunicative. She had a 6cm laceration on the left side of the face, extending from just inferior and lateral to the eye into the hairline above the ear. These (sic) was also a 2cm laceration in the right submandibular region.
Both lacerations were superficial without breaching subcutaneous layers.
In all 18 sutures were required to close the wounds and the patient was asked to return in five days for a wound check."

The respondent tendered two statutory declarations by the victim. The first statutory declaration dated 7 December 1990 added little to the medical report. The victim stated that she received fifteen stitches to the left side of her face and three stitches to the wound to the right side of her face under her chin, that "the cuts were long and deep,11       and that she was given two painkillers to relieve the pain. The second statutory declaration dated 3 June

1992 stated that she received 11 15 stitches to a cut to the right side of my jaw and .1 stitches to the left of my forehead" (emphasis mine). I assume this description is mistaken and that the correct description is that set out in the medical report. "rhe victim also stated:
"At the time I was in a lot of pain and I lost quite a bit of blood. I remember I felt dizzy for about a week later. Because the right side of my mouth was sore I had to chew my food on the left side and it hurt when I moved my mouth. The smaller cut hurt when I moved my eyes. Now I have an ugly raised scar on the right side of my face and it makes me feel shame. Everyone asks me what happened  to cause the scar.  The smaller  scar isn't quite as noticeable, because my hair covers it. Even now the big scar sometimes pains me, maybe there is still a piece of glass inside. It is a sharp pain and I rub the scar and it goes away. Sometimes when the children press down on the scar it hurts. I had the stitches out about three days after Pollyanna slashed me and this hurt a lot. When the stitches were in I could only speak a bit, but I could talk okay when they came out. I am thinking of going back to the doctor because my scar still hurts."

As both parties have lead fresh evidence which was not available to the learned magistrate, the appeal is no

longer to be resolved by reference to whether	it	has	been	demonstrated

the standard test of that	the	learned

magistrate fell into error. The issue now is, whether on the evidence before the learned magistrate and before me, the conviction should stand. In determining that question, this Court is exercising original and not appellate jurisdiction and my function is to form my own independent opinion of the evidence on the material put before me, and to give judgment as if I were sitting as a court of first instance: see Seears v McNulty (1987) 28 A Crim R 121 at 127-28 per O'Leary CJ.

The first question is whether on the evidence the victim suffered "bodily harm." The Criminal Code, sl defines "bodily harm" as follows:
"In this Code, unless the contrary intention appears - "bodily	harm"	means	any	physical	injury	that interferes with health."

This	is	to	be compared	with	the	definition	of	"grievous harm" as	follows:

"' grievous		harm'	means			any		physical of	such	a		nature		as		to	endanger endanger		life	or	to	cause		or	be permanent injury to health."

or mental injury or be likely to likely to cause

The differences	between	the	two  definitions	are		(1)	that in  the  case  of grievous  harm,		the		injury to health must be permanent	or		likely  to  be permanent,	whereas,		to	amount to bodily harm,	the		injury  to  health need not		be permanent		(2) a	mental	injury			may		amount	to	grievous	harm		but		not			to bodily	harm		(3)			in	order	to amount to bodily harm, the physical  injury must  "interfere  with"  health,   whereas   in the case of grievous  harm,  the  injury  must  be  "of  such  a nature  as  to  cause  or  be  likely  to  cause"  permanent   injury to health. Both  definitions  use the  word  "health"  which  is not  defined  by the  Code.  The  word  "health"  is  to  be  given  the same meaning in  both  definitions  unless  there  is  reason to do otherwise: Registrar of Titles  (WA)   v  Franzen  &  Ors (1976)  50  ALJR  4  at   6   per   Mason   J;   Craig,  Williamson  Pty Ltd  v Barrowcliff  (1915]  VLR  450   at    452   per    Hodges  J. The
word	"health"	is	in	each	case	part	of	a	compound
expression,	and this may be a sufficient reason.

The words  "grievous harm" appear  in a  number of	sections of the Code,	i.e.	ss20{3) ,27,28,34(1) (f) ,34(3) (d) ,40(2) ,50,70,
154,160,162,177,181,185	and 192.	The words	''bodily	harm'' appear	in	ss177,182,186,188 and 192.	In  two  sections,		i.e. ss	177 and 192,	both		expressions		appear.		Section			177 provides:

111 77  ACTS	INTENDED	TO	CAUSE	GRIEVOUS	HARM	OR	PREVENT APPREHENSION
Any person who, with  intent  to  disfigure  or disable any person, or to cause grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person -
causes    grievous	harm or	bodily	harm	to	any person by any means;

attempts in any manner to strike any person with any kind of projectile;
causes any explosive substance to explode;
sends or delivers any explosive substance or other dangerous or noxious thing to any person;

causes any such substance or thing to be taken or received by any person;

puts any corrosive fluid or any destructive or explosive substance in afiy place; or

casts or throws any such fluid or substance at or upon any person or otherwise applies any such fluid or substance to the person of any person,
is guilty of a crime and is liable to imprisonment for life."

Counsel for the respondent, Mr Roberts, submitted that sl77 indicated that disfigurement could amount to "bodily harm," and therefore an interference with "health,"  even though the disfigurement amounted only to minor scarring of the body not otherwise interfering with the proper functioning of the body, but I am unable to see why this must be so.  The legislature has not used the expression "bodily

injury," but
as to which observed	in

has instead used the expression "bodily harm" it  has given a	defined	meaning.		As Gibbs	J Wacal	Developments	Pty	Ltd	v	Realty

Developments	Pty Ltd	(1978)	140	CLR	503	at	507,	it	is
impermissible to construe a definition by reference to the term defined, and the special meaning given to the words must be applied whether or not it accords with the ordinary meaning.

I note also that the word "health" is used in two other sections of the Criminal Code, viz., ssl83 and 184.

In Tranby (1991) 52 A Crim R 228, the Court of Criminal Appeal (Queensland) had occasion to consider the meaning of the word "health" as it appears in the definition of "grievous bodily harm" contained in sl of the Criminal Code (Qld). That definition is as follows:

"The term 'grievous bodily injury of such nature as to endanger life, or to cause permanent injury to health."

harm'	means	any	bodily endanger or be likely to or	be	likely		to	cause

That	definition	is	very	similar	to	the	definition	of

"grievous	harm"	in supra,	the	facts

the	Criminal	Code	(NT).	In	Tranby,
were	that	the	appellant	bit	the

complainant's left ear, severing a substantial portion of the lobe. He was convicted of doing grievous bodily harm. The severence did not affect the complainant's capacity to hear, and the only residual effect was a permanant cosmetic disability. The question arose as to whether that injury should be regarded as an injury to health, there being no question that the injury was not permanent. By a majority (Derrington and de Jersey JJ) it was held that such an injury was not an injury to health. There are some significant differences between the Criminal Code of Queensland and the Northern Territory Code which must be borne in mind when considering Tranby. Section 317 of the Queensland Code, which is the nearest equivalent to s177 of the Northern Territory Code set out above provides that:
"Any person who, with intent to maim, disfigure, or disable, any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person -
unlawfully wounds or does any grievous bodily harm to any person by any means whatsoever;
(2) to (7)
is guilty of a crime, and is liable to imprisonment with hard labour for life ..." (emphasis mine).

subsections (2) to (7) are in para materia with ss177(2) to
(7) of the Northern Territory Code, except that the word "unlawfully" is included in the provisions of the Queensland Code. There is no offence of unlawful wounding contained in the Northern Territory Code. Another difference between the two codes is in the definition  of

"bodily	harm." The means	any	bodily

Queensland harm	which

definition interferes

is "bodily harm with	health	or

comfort. 11 (Emphasis mine).

Derrington J to some extent relied upon the availability of the offence of unlawful wounding to the complainant in Tranby in concluding that "health" did not unambiguously mean an injury resulting only in a cosmetic disability. So far as the Northern Territory Code is concerned, it is open to debate as to whether the absence from the Code of an available alternative, other than a simple assault, favours one particular shade of meaning to be given to the word "health" over another. It could be suggested, for example, that the apparently deliberate omission from the definition of "bodily harm" of the words "or comfort" points to a more serious type of injury than that encompassed by the definition contained in the Queensland code.

The	approach	taken	by	Macrossan	CJ,	dissenting,	was		tc""' \ consider		the		historical				meaning		given			to		the		phrase "grievous			bodily	harm"		as		it	appeared		in	a		number	of statutes.  His Honour also seemed  to be influenced	in his interpretation of the word "health" by the context of that word		in	the	definitions			of		"grievous		bodily		harm" and "bodily harm": see p232. Accordingly, His Honour preferred the definition "soundness of body" in the sense "unharmed, "free from injury" and "free from flaw, defect" etc. : see p233. With great respect, I am unable to accede to this approach. In the first place, it is a well-settled rule of construction that in the case of a code intended to replace the common law, its meaning is to be ascertained in the  first instance by its language and the natural meaning  is not to be qualified by considerations derived from the antecedent law: Brennan v The King (1936) 55 CLR  253  at 263; Bank of England v Vagliano Brothers (1891) AC 107 at 144-45; Mellifont v Attorney-General for the state of Queensland (1991) 173 CLR 289 at 309.  Secondly,  His Honour's approach is coloured by construing  the definition by reference to the term defined, which as I have already said, is incorrect: Wacal Developments Pty Ltd v Realty Developments Pty Ltd, supra.

De Jersey J approached the matter by reference, not only to dictionary definitions of the word "health", but also by reference to a number of authorities that had considered the ordinary meaning of that word in various contexts. It is unnecessary to refer to His Honour's judgment in detail. He concluded, at 238-9:
"I would not go so far as to limit 'health' to freedom from disease or ailment in the sense of sickness. To my mind, the ordinary sense of the term focuses on the functioning of the body, which of course may often be impaired by disease or illness. But functioning may also be impaired by, for example, deliberately inflicted injury. The American decisions nevertheless provide some support for the conclusion that 'health' is not impaired by removal of a part of the body that serves no particular function with respect to the rest of it."

His Honour also concluded at 237:
"Resort to the dictionaries confirms that a cosmetic disability with no consequence upon the functioning of the body does not involve impairment of 'health' as that word is ordinarily understood. The definitions of 'health' in the dictionaries focus on the functioning of the body."

In the end result, I accept Mr Roberts' submission that not much assistance is to be gained from Tranby because the injury to health being considered in that case was of a permanent nature, and I consider that I should distinguish Tranby on that ground and approach the matter afresh. As previously mentioned, the full definition of "bodily harm" is "any physical injury that interferes with health" and I consider that it is that composite phrase which needs to be considered rather than the word "health" taken out of context. Firstly, the statute uses the expression "interferes with," which I take in this context to mean "to

affect adversely." Secondly, permanent,	so	that	even sufficient.		Thirdly,		the

the interference need not be a temporary interference is statute does not use the

expression have done Parliament

"results in bodily injury," although it might so. It seems to me therefore unlikely that meant to convey the meaning that a bodily

injury,	no	matter	how	minor,	is	an	interference	with

health,	although	this	is	a	possible	construction.	The

narrowest

dictionary	meaning	commonly

given

to	the

word

"health" Shorter

is	"soundness	of	body":	see Oxford	English		Dictionary,

for 3rd

example ed	and

the the

definitions referred to by De Jersey Jin	Tranby at 237-38;
and	"sound"			is		defined,	for		example,	by		the	Macquarie Dictionary	to	mean	"free		from		injury,	damage,		decay, defect, disease, etc."; and the definition		of "sound" in the Shorter Oxford English Dictionary is to similar effect, viz., "free from disease, infirmity or injury." Mr Roberts urged that this was the meaning intended, but if this was intended, why give the expression "bodily harm" a defined meaning at all, and why not use the words "results in a bodily		injury"?			Moreover,		the	consequences	of		such	a meaning do not seem to accord with the seriousness that the ' , Code treats the causing of  bodily  harm. Section 188(2)(a) of the Code increases the maximum penalty for an assault, where bodily harm is suffered, from one year to five years' imprisonment. Section 186 of the Code imposes a penalty of five years' imprisonment for unlawfully causing bodily harm to another.		Section 192(3) increases	the maximum penalty for a sexual assault from seven years to fourteen years where	bodily			harm	is caused.	It is hard	to see how an offence against s182 is likely if the intent is to cause only a minor injury, given that that section creates the crime of placing explosives in place with intent to cause any bodily harm. Further, only physical injuries can result in bodily harm, yet a mental injury, although temporary,  can be far more devastating than a minor injury such as a

bruise.	Finally, observation	that

I		am not helped	much	by De Jersey J's the	definitions		of	''health"	in	the

dictionaries focus on the functioning of the body. In one sense, even a minor bruise or a minor headache as a result of a blow to the head interferes to some extent with the temporary functioning of the body, although the body has the capacity to heal in such cases without the need of any medical assistance. I do not consider that in ordinary parlance, one could describe minor injuries, not requiring any medical treatment, as a temporary interference with

one's health. On the other hand, an injury of such a kind that warranted seeking medical treatment may well fall within that description, although the fact that medical treatment was or was not sought would not be determinative of the matter.

Mr Howden, for the appellant, submitted that I should adopt the approach of Derrington J in Tranby, who held (at 236) that it was not possible to say that the injury in that case plainly and unambiguously was an injury to health, and, the statute being a penal one, any ambiguity should be resolved in favour of the accused. Although the definition of bodily harm presents difficulties of construction, I do not consider that I should follow this approach. In the end result, I consider that the question of whether the injury amounts to "bodily harm" is one of degree, which can only be decided by reference to the facts in each case. In determining this question, it is necessary to focus on the injury and its immediate consequences. The fact that the victim has been left with only a cosmetic disability is irrelevant if the immediate consequences of the injury interfered temporarily with her health. It is relevant also to consider the nature of any treatment received and whether any part of the body was unable to perform its functions fully, either as a result of pain or otherwise and there may well be other relevant matters. In this case, the victim did seek medical treatment, and a number of stitches were inserted to stem the flow of blood. The victim was also given painkillers, and she was in a distressed condition whilst at the hospital. She felt a lot of pain, and was dizzy for a week, her ability to chew food properly was interfered with for about a week, her ability to move her eyes was temporarily interfered with by pain, and her ability to speak normally was also temporarily affected. In these circumstances it seems to me that the assault did interfere with her health and therefore did result in bodily harm within the meaning of that expression in the Code, and I find accordingly.

I turn now to consider whether the penalty imposed by the learned magistrate was manifestly excessive. Mr Roberts, for the respondent, very fairly did not seek to rely upon the additional material tendered before me in order to support the sentence imposed. Nor did counsel for the appellant. This aspect of the appeal therefore falls to be determined in accordance with the well-known principles established by the High Court in House v The King (1936) 55 CLR 499 at 504-5.

The	circumstances	of		the		offence		were		that		on	about	4 December 1990 the appellant was staying at Woodyards Camp a few kilometres north of Alice Springs. This camp is a place leased by the Tangantyere Council to provide a place for Aboriginal		people		to			stay		when	visiting	the		town.	Thr"'=, appellant is a twenty-five year old married woman, a member of the Warlpiri people, who normally lives at Yuendumu. She was		not		accompanied		by	her	husband	or		children.	The appellant was drinking with four other people, one of whom was the eventual victim of the assault. One of the other persons	present,	a	woman			called		Deidre,		accused	the appellant of sleeping with her husband. The appellant denied this allegation vehemently. An argument ensued, and the appellant was "given a hiding" by Deidre and the eventual victim, the latter of whom struck the appellant with a rock to the head. The appellant was taken to hospital where she received some stitches. The appellant was angry and her pride hurt by what she considered to be was an unjustified attack based upon false allegations. The next day, 5 December, the appellant saw Deidre and the parties exchanged apologies. On 7 December the appellant went to the Institute of Aboriginal Development where her victim worked to speak to her victim about this matter, her intention being to invite her victim to go outside so that they could speak to each other privately. As she was about to enter the building, the appellant picked up a small piece of glass which was part of a broken bottle which she had found, her intention being, so it was submitted, in case she needed to protect herself. She entered the

building and spoke to her victim who was on the other side of the counter. The appellant asked her why she had been assaulted, and asked her to come outside. The victim refused and a shouting match ensued, during which the appellant reached over the counter and slashed her victim across the face with the broken glass. The appellant was later arrested and made full admissions to the police. She was released on bail and ultimately appeared before the magistrate at Yuendumu where she entered a plea of guilty to the charge.

The appellant had grown up in Yuendumu and her first language is Warlpiri. She has an adequate grasp of English. She attended school to about year 9 or 10, and can read and write but not fluently. After leaving school, she married and there is one child of that marriage aged about seven or eight. Shortly after that child was born, her husband passed away and she thereafter remarried. There are three children aged five, four and three by her second marriage. At the time of the original hearing, her husband was employed full time as the Aboriginal Corrections Officer at Yuendumu earning about $500 per fortnight. He is now unemployed. The appellant is fully engaged in bringing up her children. The appellant has no relevant prior convictions and is, for all intents and purposes, a first offender.

It was submitted that the penalty imposed was manifestly excessive for a number of reasons, the first of which was that the appellant's children would have to be split up amongst the relatives as her husband has no experience in caring for young children. I am unable to give this factor any weight. Except in exceptional circumstances, the effect of a sentence on dependants is not a relevant factor: Adami and Adami (1989) 2 A Crim R 8. I do not consider the circumstances here to be exceptional. The fact that the dependants affected are those of a woman is not an exceptional circumstance: R v Wirth (1976] 14 SASR 291 at
293 per Bray CJ.

The next submission was that the assault was provoked in the sense that the appellant had herself been assaulted by her victim only a few days before. I accept that this places the assault in a different category than cases where the assault was carried out on a victim who had done nothing to deserve it, but on the other hand the courts should not be seen to encourage those who take the law into their own hands. Some three days had passed since the assault on the appellant. The appellant, it seems to me, carried out revenge on her victim rather than acting in the heat of the moment or at least within a short time thereafter. I am unable to give this submission any weight, and there is nothing to show that the learned magistrate viewed the assault as being one carried out upon an entirely innocent victim.

The next submission was based upon the observations of Walters J in Coles v  Samuels (1972) 2 SASR 488 at 492 as follows:
"In the absence of circumstances of substantial gravity surrounding a simple offence or a minor indictable offence committed by a first offender who stands to be punished for a single offence and who has no other offences to be taken into consideration, and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, I am disposed to think that a reformative or a primarily deterrent sentence is scarcely indicated, and that the imposition of a fine, a release on probation, or a discharge on a suspended sentence should prima facie be adequate."

That was a case of common assault, whereas here the appellant had pleaded guilty, rightly as I have found, to an assault causing bodily harm, which is by virtue of the Code, a circumstance of aggravation to the assault increasing the maximum penalty from one to five years' imprisonment. I consider that the fact that a weapon was used, that there were two cuts to the face requiring eighteen stitches, does place the case into the category of one of substantial gravity. Even if the cuts were

superficial	without	reaching	subcutaneous skin and nothing	further was known about

layers	of	the the cuts other

than	the	fact		that	the	victim		suffered	some	pain	and suffering	for	a		short	time	I	would	still		consider	the
criminality	involved	to	warrant	the	description	"of
substantial gravity.''

In my opinion it  has  not  been  shown   that  the  learned magistrate erred in any way in imposing a short custodial sentence.  The  relevant  considerations  are  to   be  found   in the  observations  of  King  CJ  (with  whom   Mitchell   J  agreed) in Yardley v Betts (1979) 1 A  Crim  R  329  at  332-34,  and  in the observations of Bray CJ in Birch v Fitzgerald (1975)  11 SASR 114 at  116-17 to which I referred in Gadatjiya v Lethbridge (unreported, 28/2/92) and I will not repeat them here. The need for general and special deterrence, and  to impress  upon  the   community   at   large   that   such   behaviour will not be  tolerated,  warranted  the  course  taken  by  the court below.

Accordingly, the appeal is dismissed.

'