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James Mason - Source: ONE News -
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Appeal Court judges have rejected a bid by a Christchurch father to overturn one of the first convictions under the so-called "anti-smacking" law change, as well as his sentence for assaulting his four-year-old son.
The district court trial of James Mason in May last year was held out by some pro-smacking critics as a test of the May 2007 removal from the Crimes Act of a defence of reasonable force for parents who physically punish children.
A jury found Mason, 51, musician, guilty on May 19 last year of pulling his son's ear and punching him in the face just before Christmas 2007.
Mason denied the charge, but said he pulled the child's hair and flicked his ear to stop him going back into a dangerous situation on his bike on the Bridge of Remembrance ramp in central Christchurch where his two-year-old had fallen and hurt his head.
Witnesses at the trial told of hearing Mason swearing and shouting at the boys, and prosecutors said he lifted up and slammed down the bikes of the two boys, pulled the older boy's ear, and punched him in the face. A policewoman said Mason told her: "I hit the big one in the face and that is what I do..."
Today the Appeal Court dismissed Mason's appeal against both his conviction and his sentence. He has already completed the sentence of nine months supervision and an order that he undertake programmes as directed by the Probation Service.
Justice David Baragwanath said today: "While the blow to the face was not so heavy as to leave a mark, we agree with the jury and Judge (Michael) Crosbie that it was inexcusable. We also agree ... that by itself, let alone coupled with the ear pulling and Mr Mason's loss of temper, it justified the sentence of supervision".
Mason represented himself at the appeal hearing and argued the charge of assault should have been split into two charges, one alleging ear-pulling and the other punching, but Justice Baragwanath and Justices William Young and Grant Hammond said it was open to the judge to sentence on the basis that the boy had been punched.
Mason next argued that police officers should have given evidence that the boy was not visibly injured, and that the police should have exercised discretion to not prosecute him because the offence was inconsequential.
The court said this was a matter of police discretion and there was no abuse of process, and also rejected submissions that the defence at trial was cut short, that Mason's actions were justifiable, and that a juror was not impartial.
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