Glen Troy Herbert v Gary Maxwell Russell
[2011] ACTSC 68
•24 February 2011
GLEN TROY HERBERT v GARY MAXWELL RUSSELL
[2011] ACTSC 68 (24 February 2011)
EX TEMPORE JUDGMENT
On appeal from the Magistrates Court of the Australian Capital Territory
No. SCA 85 of 2010
Judge: Nield A/J
Supreme Court of the ACT
Date: 24 February 2011
IN THE SUPREME COURT OF THE )
) No. SCA 85 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:GLEN TROY HERBERT
Appellant
AND: GARY MAXWELL RUSSEL
Respondent
ORDER
Judge: Nield A/J
Date: 24 February 2011
Place: Canberra
THE COURT ORDERS THAT:
The sentencing Magistrate erred in describing a previous matter involving the appellant as a “sort of violence matter” when such a matter was not proved.
The appeal is allowed. The finding of guilt is confirmed. The sentence is set aside. The appellant is re-sentenced.
The charge is dismissed under s 17 of the Crimes (Sentencing) Act 2005.
As to the appeal of Glen Troy Herbert.
I am satisfied beyond any doubt that the appellant, Mr Herbert, was guilty of the offence of assault committed upon the complainant. And whereas I might not designate the assault as being a road rage matter, the fact is that it did arise from a motor vehicle collision, albeit that the appellant was not involved in that collision.
I consider that the magistrate’s description of a previous matter, in which the appellant was involved, as being “a sort of violence matter”, when it might not have been such a matter, means that the magistrate took into account something which she was not entitled to take into account. For that reason I set aside the sentence imposed by the magistrate.
Considering the matters referred to in s 17 of the Crimes (Sentencing) Act 2005, and also in s 33 of that Act, particularly the potential for the appellant’s loss of his motor traders licence and, therefore, the loss of his income, it seems to me that I should apply s 17 of the Act by saying that, without proceeding to conviction, I dismiss the charge because I am satisfied that it is not appropriate to impose any punishment other than nominal punishment upon the offender.
In view of the offender’s past character, I do not see the need for a good behaviour order.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 9 May 2011
Counsel for the appellant: Mr Thomas
Solicitor for the appellant: Dickson Legal
Counsel for the respondent: Mr Lawton
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 24 February 2011
Date of judgment: 24 February 2011
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