Christopher Carter v Ewan Foster
[2011] ACTSC 85
CHRISTOPHER CARTER v EWAN FOSTER
[2011] ACTSC 85 (1 April 2011)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 67 of 2010
Judge: Higgins CJ
Supreme Court of the ACT
Date: 1 April 2011
IN THE SUPREME COURT OF THE )
) No. SCA 67 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CHRISTOPHER CARTER
Appellant
AND:EWAN FOSTER
Respondent
ORDER
Judge: Higgins CJ
Date: 1 April 2011
Place: Canberra
THE COURT ORDERS THAT:
That the appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal and to be taxed if not agreed.
I thank counsel for their submissions. I have taken the opportunity to acquaint myself with the remarks Chief Magistrate Burns made during the course of sentencing Mr Foster and the submissions that were put on his behalf, including, as has been conceded, the very weighty character evidence and, the serious consequences which have flowed to him as a result of his offending behaviour, quite apart from any decision the court might have made. I suppose that might have been alleviated by a non-conviction order. But, as his Honour said, this type of offending is so serious that that option was really not open.
I have read his Honour’s remarks, and, indeed, endorse his condemnation of this kind of conduct. It is conduct that the community finds quite disturbing and abhorrent. It usually happens in licensed establishments, I suppose for reasonably obvious reasons, in that that is where people have glasses in their hands. Glass to the face, where it usually is applied, does typically cause considerable injury. Of course, it also carries the risk that this offender indeed suffered - that is, damage to the person wielding the glass. Probably if they are acting impulsively that is more likely than if they are acting in some way deliberately. That would endorse the view that was put to his Honour that this was something which occurred on the spur of the moment, not pre-meditated, and was otherwise out of character.
As I say, I have read everything his Honour said and, with respect, I agree with it. I agree that this type of behaviour would normally result - even in the case of a person of otherwise good character - a term of imprisonment, which may be suspended or it may be served by way of periodic detention. But there must be exceptional cases in which no term of imprisonment would be imposed at all. And, with respect, if there is any such case, this would seem to be one of them. Although his Honour would have been justified, as the prosecutor rightly put to him, in imposing a term of imprisonment, she was not saying that it ought to be immediately served. Nevertheless, it could have been imposed. It would not have been an error. The question is whether his Honour was in error in not imposing a term of imprisonment, which was suspended on terms of a good behaviour order such as that, in fact, he imposed. I am not of the view that it was an error. So, for that reason, I would dismiss the appeal.
I make an order that the appellant pay the respondent’s costs of and incidental to the appeal and to be taxed if not agreed.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 19 May 2011
Counsel for the Appellant: Mr A Doig
Solicitor for the Appellant: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr F J Purnell SC
Solicitor for the Defendant: Legal Aid ACT
Date of hearing: 1 April 2011
Date of judgment: 1 April 2011
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