Adrian Charles Gee v Jason Peter Hulbert - [2002] ACTSC 118

ADRIAN CHARLES GEE v JASON PETER HULBERT & ORS [2002] ACTSC 118 (25 November 2002)

CATCHWORDS

CRIMINAL – appeal against conviction and sentence in Magistrates Court – withdrawal of pleas of guilty to charges of assault, damage property and contravene restraining order – grounds relied on include manifestly excessive sentence and integrity of pleas – change of plea of guilty is discretionary and should only be permitted to avoid substantial injustice – appellant bears onus of showing substantial injustice will have occurred without a withdrawal of plea of guilty – appellant would have been entitled to acquittal in respect of charges of assault and damage property had his version been accepted, even if only as a reasonable hypothesis – credibility of appellant’s claim – clear breach of restraining order – appeal against conviction in respect of charges of assault and damage property upheld, convictions and sentences imposed set aside – appeal against sentence in respect of contravening restraining order upheld – all matters remitted to Magistrates Court to be dealt with according to law.

Magistrates Court Act 1930 (ACT), s 216

Liberti v R (1991) 55 A Crim R 120

R v Davies (1993) 19 MVR 481

R v Cincotta (Hunt CJ at CL, Grove and Allen JJ, unreported, 1 November 1995)
R v Favero [1999] NSWCCA 320; (Sully, Hidden and James JJ, unreported, 19 October 1999)
R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
R v Hura [2001] NSWCCA 61;(2001) 121 A Crim R 472
R v Bayliss [2002] NSWCCA 11; (Wood CJ, Sully and Dowd JJ, unreported, 14 February 2002)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 21 of 2002

Judge: Higgins J
Supreme Court of the ACT
Date: 25 November 2002

IN THE SUPREME COURT OF THE       )
  )          No. SCA 21 of 2002
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ADRIAN CHARLES GEE
Appellant

AND:JASON PETER HULBERT& ORS
Respondents

ORDER

Judge:  Higgins J
Date:  25 November 2002
Place:  Canberra

THE COURT ORDERS THAT:

The appeals against conviction in respect of charges: CC 2001/11089 (common assault); CC 2001/11090 (destroy/damage property); CC 2001/11091 (destroy/damage property) be upheld.
The convictions and sentences in respect of the charges: CC 2001/11089 (common assault); CC 2001/11090 (destroy/damage property); CC 2001/11091 (destroy/damage property) imposed by the Magistrates Court be set aside.
The appeal against sentence in respect of charge CC 2002/1476 (contravene restraining order) be upheld.
All matters (CC 2001/11089; CC 2001/11090; CC 2001/11091; CC 2002/1476) be remitted to the Magistrates Court to be dealt with according to law.

This is an appeal from four matters decided on 16 April 2002 by Magistrate Somes in the ACT Magistrates Court.

On that date, convictions were recorded and penalties imposed in respect of the following matters (I omit references to court costs and levies):

· (CC 2001/11089) That he … on 14 December 2001 did assault Anna Morant. Convicted. Sentenced to 26…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adrian Charles Gee v Jason Peter Hulbert

Details

AGLC: Adrian Charles Gee v Jason Peter Hulbert [2002] ACTSC 118
Case: [2002] ACTSC 118
Decision Date

CaseChat Overview and Summary

Adrian Charles Gee appealed against his conviction and sentence in the ACT Magistrates Court. He was convicted of common assault, damaging property, and contravening a restraining order. The appeal focused on the integrity of his pleas of guilty and the severity of his sentence. The court considered whether the appellant's pleas of guilty were genuine and whether the sentence was manifestly excessive. The appellant argued that he had not received proper legal advice and that his guilty pleas were not based on a genuine consciousness of guilt. The court examined the circumstances under which a change of plea might be permitted, emphasizing the need to avoid a substantial miscarriage of justice. The appellant's account of the events, if accepted, would have led to an acquittal on the charges of assault and property damage. However, the court found that the appellant's guilty pleas were based on a misunderstanding of the seriousness of the charges. The court upheld the appeals against conviction for the charges of assault and property damage but dismissed the appeal against the conviction for contravening the restraining order. The sentences were set aside, and the matters were remitted to the Magistrates Court for reconsideration.

Orders