Kicking a man who is on the ground will not be tolerated, judge says
Morris Anthony Brown, 35, was sentenced to two years imprisonment after Justice Howard Cooke found him guilty of causing grievous bodily harm to a co-worker at a construction site in July 2010.
In his verdict, Justice Cooke referred to Brown kicking Giovanni Marshall after the two grappled and Mr. Marshall fell to the ground. The complainant had told the court how he was raising his arms to block kicks at his face. As a result, his arms received the kicks and both his wrists were broken. They were in casts from July to October. Initially, he could not lift a teacup or even a spoon. He also had a couple of ribs broken.
Brown gave evidence and denied kicking, but when questioned by Crown Counsel Tanya Lobban-Jackson he admitted “kicking at”. He also admitted he wanted to get in the last blow. Further, he told the court that Marshall had punched him and he had to retaliate.
Justice Cooke said the issue of self-defence or defence of another did not arise. Both men agreed the fight started after Mr. Marshall spoke to a woman working on the site. She poked at him with a scraper and he grabbed her arm. Brown came and punched the complainant.
“In my view the defendant and complainant were involved in a fist fight, plain and simple. I suppose it won’t be the first or last time there was a fight on a work site,” the judge said.
He said it was clear that the woman had left the area when Brown inflicted the injuries. It could not be said she was in danger, either actual or imminent and Brown could not have believed he was defending her.
Neither was he defending himself, the judge said, because Marshall was on the ground and had no weapon.
“The kicking was a reprehensible display of unbridled aggression,” Justice Cooke said. Brown was eventually pulled away by co-workers. As Mr. Marshall was helped from the site, he tried to hit Brown, but his hands just flapped.
By way of background, both men agreed that the job foreman had called a meeting the morning of the incident and announced that some people were going to be laid off. Brown was kept. Mr. Marshall was not kept, but he said that did not bother him because his work permit was held by a sub-contractor. He pointed out that he was the one who had helped Brown get a job at the site. He denied assaulting the woman worker, but agreed he had told her she was feisty.
Trial took place in September. Sentence was not passed until 18 November because defence attorney Lucy Organ suggested the sentence could be non-custodial and the judge could explore options through a social inquiry report. The judge agreed to continue bail until this month’s hearing.
After hearing mitigation from Ms Organ and sentencing precedents, Justice Cooke said he felt compelled to hand down a custodial sentence. He said the court had a duty to society to make it known that a vicious attack on a man who is on the ground will not be tolerated. In his view, Brown was out to kick in Mr. Marshall’s teeth or mutilate his face and the court took a very dim view of such behaviour.