AH v Raith Pearson
[2013] ACTSC 205
•25 September 2013
AH v RAITH PEARSON
[2013] ACTSC 205 (25 September 2013)
APPEAL AND NEW TRIAL – Appeal from sentence in Magistrates Court – manifest excess – assault occasioning actual bodily harm – whether error by Magistrate in placing objective seriousness of offence above that revealed by the evidence – where non-trivial injury to police officer – where no suggestion of pre-meditation – where no evidence of force required to cause injury – where respondent concedes error on the part of the Magistrate
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 56 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 25 September 2013
IN THE SUPREME COURT OF THE )
) No. SCA 56 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
AH
Appellant
v
RAITH PEARSON
Respondent
ORDER
Judge: Burns J
Date: 25 September 2013
Place: Canberra
THE COURT ORDERS THAT:
Appeal upheld.
The sentences of the Magistrate are set aside and the appellant is resentenced as follows:
a.With respect to the charge of assault occasioning actual bodily harm, I impose a sentence of four months’ imprisonment commencing on 23 October 2013 expiring on 22 February 2014.
b.Otherwise, the convictions and sentences imposed by the Magistrate on 5 July 2013 are confirmed.
On 5 July this year, the appellant was sentenced with respect to three offences and was also sentenced in relation to breaches of orders that had previously been made in the Magistrates Court or in the Children’s Court. A number of sentences of imprisonment were imposed with respect to the three fresh charges that were then before the Magistrate. In that regard, with respect to an offence of failing to appear the appellant was sentenced to 42 days imprisonment commencing on 10 September 2013 and expiring on 22 October 2013.
On an offence of resisting a public official he was sentenced to 98 days’ imprisonment from 23 October 2013 to 29 January 2014. Finally, with respect to an offence of assault occasioning actual bodily harm he was sentenced to 12 months’ imprisonment commencing on 23 October 2013 and expiring on 22 October 2014. The appellant appealed from the sentences imposed by the Magistrate.
The notice of appeal originally sought to appeal against the conviction with respect to the offence of assault occasioning actual bodily harm and also sought to appeal against the other sentences that were imposed by the Magistrate. Mr Sabharwal, counsel for the appellant, has made it clear today in the course of the hearing of the appeal that the appellant now abandons any appeal against the finding of guilt by the Magistrate and also has abandoned any appeal relating to the sentences imposed by the Magistrate other than that imposed with respect to the offence of assault occasioning actual bodily harm.
I have had an opportunity to read the transcript of the evidence that was placed before the Magistrate on 5 July this year with respect to the charge of assault occasioning actual bodily harm. I have also read the transcript of her Honour’s sentencing comments. Before me today further evidence has been tendered. That is, evidence by way of an affidavit which was sworn by the appellant on 28 August this year. In that affidavit he deposes to the fact that he has an injured shoulder which dislocates from time to time and is very painful.
He wore his arm in a sling until approximately four weeks prior to him affirming that affidavit. He further affirms that he’s been informed by an orthopaedic surgeon at Canberra Hospital that he requires surgery to repair his injured shoulder. He has subsequently removed the sling on medical advice to prevent the joint from seizing. In the affidavit he further deposes to a number of attempts by corrective services to have him transported to hospital for the purposes of undergoing an MRI scan.
There appears to be no suggestion that the information contained in the appellant’s affidavit is incorrect and I say that it does little credit to corrective services that such a simple matter has apparently been mismanaged in the way it has according to the schedule of events that the appellant has deposed to in his affidavit. However, I note that there appears to be no suggestion that the injury that he has sustained will become worse if not provided with immediate treatment.
A matter of some significance in the hearing of this appeal is the fact that the representative of the respondent has conceded that her Honour has placed the objective seriousness of this offence at a higher level than can be justified on the facts that are revealed in the evidence. In that regard, the Magistrate determined that the offence of assault occasioning actual bodily harm was in the middle range of offences of that nature. It may be in that regard that her Honour was overly influenced by the nature of the injury sustained by the complainant with respect to that charge.
The complainant sustained a fractured sternum. Certainly it cannot be suggested that a fractured sternum is a trivial injury but at the same time in determining the culpability of the appellant with respect to that offence, it was important to look at questions such as the events leading up to the commission of the offence so as to determine the extent to which the offence could be said to be premeditated.
As counsel for the respondent quite fairly concedes, the evidence before the Magistrate was that the appellant, only moments before colliding with Constable Wilson and thereby causing the fracture to Constable Wilson’s sternum, had a collision with another police officer, Constable Pearson. After colliding with Constable Pearson, the appellant then ran off and only seconds later collided with Constable Wilson so that there was no suggestion of any premeditation. It was, as her Honour observed, a spur of the moment incident.
In addition to which, there was no evidence before her Honour to establish the degree of force that would be required to occasion the injury that was occasioned to Constable Wilson. In those circumstances the concession made by counsel for the respondent today was properly made and as such it appears to me that the sentence which was imposed by the Magistrate was manifestly excessive.
I therefore propose to set aside the sentence of 12 months’ imprisonment which was imposed by the Magistrate with respect to that offence and to resentence the appellant.
With respect to the charge of assault occasioning actual bodily harm, I set aside the sentence of 12 months’ imprisonment imposed by the Magistrate and instead I impose a sentence of four months’ imprisonment commencing on 23 October 2013 expiring on 22 February 2014. Otherwise, the convictions and sentences imposed by the Magistrate on 5 July 2013 are confirmed. I note the non-parole period is cancelled as a result of these orders.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 9 October 2013
Counsel for the Appellant: Mr J Sabharwal
Solicitor for the Appellant: Rachel Bird & Co
Counsel for the Respondent: Mr M Fernandez
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 25 September 2013
Date of Judgment: 25 September 2013
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