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Grimshaw v Mann

Grimshaw v Mann

Case [2013] ACTSC 189 29 August 2013

Appeal

Manifestly Excessive Sentence

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GARRET JAMES GRIMSHAW v MATTHEW JOHN MANN
[2013] ACTSC 189 (29 August 2013)

APPEAL – Appeals from the Magistrates Court – appeal against sentence – appeal on the ground of manifest excess
EVIDENCE – Documentary evidence – desirability of marking documentary evidence as exhibits
CRIMINAL LAW – General matters – where injuries sustained are incongruent with offence to which the offender has pleaded guilty – where injuries may amount to actual bodily harm but offender pleaded guilty to common assault

Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT), s 47
Domestic Violence Protection Orders Act (2008)
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10.2

Anderson v The Queen (1993) 177 CLR 520
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Ex parteBowen (1917) 34 WN(NSW) 41
Ex parteMadsen; Re Hawes (1960) SR(NSW) 550
Ex parteNormanby; Re Britliff (1954) 54 SR(NSW) 299
Ex partePorter (1902) 19 WN(NSW) 37
Grooms v Toohey (2012) 7 ACTLR 1
Licciardello v McPherson [2012] ACTSC 31
Ludeman v The Queen (2010) 208 A Crim R 298
Nikro v O’Sullivan [2013] ACTSC 129
Pearce v The Queen (1998) 194 CLR 610
R v Birks (1990) 48 A Crim R 385
R v Bloomfield (1998) 44 NSWLR 734
R v Daetz (2003) 139 A Crim R 398
R v Edwards [2012] QCA 117
R v Freestone [2009] QCA 290
R v LambethMetropolitan Stipendiary Magistrate; Ex parte McComb [1983] 1 QB 551
R v Malcolm (1908) 8 SR(NSW) 6
R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 May 2013)
R v TW (2011) 6 ACTLR 18
Saga v Reid [2010] ACTSC 59
Shoard v Van Der Zanden [2013] WASC 163
Smith v Tasmania [2012] TASCCA 3
Watson v Metropolitan Reception Centre (1971) 1 NSWLR 67

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 45 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 29 August 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 45 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GARRET JAMES GRIMSHAW
Appellant

AND: MATTHEW JOHN MANN
Respondent

ORDER

Judge:  Refshauge J
Date:  29 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The conviction of Mr Grimshaw of common assault on 2 June 2012 be confirmed.

The sentence of 29 May 2013 be set aside.

Mr Grimshaw be sentenced as ten months imprisonment to commence on 28 May 2013 and that sentence be suspended for two years from 27 August 2013.

Mr Grimshaw be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act, for a period of two years with the following conditions:

(a) that Mr Grimshaw be subject to the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to…

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 Grimshaw v Mann

Details

AGLC: Grimshaw v Mann [2013] ACTSC 189
Case: [2013] ACTSC 189
Decision Date

CaseChat Overview and Summary

Garret James Grimshaw appeals against his sentence for common assault, arguing it is manifestly excessive. Matthew John Mann is the complainant and police officer assigned to the case. Grimshaw had been involved in an altercation with Mann outside a late night convenience store in Civic and struck Mann three times with his closed fist, causing her to fall and hit her head. The original charge of assault occasioning actual bodily harm was dismissed and Grimshaw pleaded guilty to a fresh charge of common assault. The learned Magistrate sentenced Grimshaw to ten months imprisonment, reduced by three months for a plea of guilty, and ordered a period of three months periodic detention with the balance suspended with a two year good behaviour order. Grimshaw appeals the sentence on the ground of manifest excess. The Court found the sentence manifestly excessive and ordered that the conviction be confirmed but the sentence be set aside. In lieu, the Court orders ten months imprisonment, to commence on 28 May 2013, to be suspended for two years from 27 August 2013, and that Grimshaw sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act, for a period of two years.

Orders