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 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…
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