Jones v Graham - [2020] ACTMC 15

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jones v Graham
Citation:	[2020] ACTMC 15
Hearing Date(s):	7 March 2019 and 3 July 2019
DecisionDate:	9 June 2020
Before:	Special Magistrate Hunter OAM
Decision:	See [173]-[216]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – motor vehicle – assault – Directions Judge alone Trial, R v Clearihan
Legislation Cited:	Road Transport (General) Act 1999 s 72, s 60
Cases Cited:	R v DM [2010] ACTSC 137 R V Mulcahy [2010] ACTSC 98 R v Burdon [2011] ACTSC 90 Parkinson v Alexander [2017] ACTSC 201 R v Clearihan [2002] ACTSC 60 R v Murray (1987) 11 NSWLR 12
Parties:	W J Jones (Informant) Ross Graham (Defendant)
Representation:	Counsel B Ngugi (Informant) T Sharman (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Sharman Robertson Solicitors (Defendant)
File Number(s):	CC 18/1578 CC 18/1579 CC 18/5189 CC 18/5181 CC 18/6592

SPECIAL MAGISTRATE HUNTER OAM:

The Defendant, Ross Graham was charged with five offences.

(a) CC 2018/6592 – obstructing a driver – to which a plea of guilty was entered.

(b) CC 2018/5178 – common assault – plea of not guilty entered

(c) CC 2018/5179 – common assault – plea of not guilty entered

(d) CC 2018/5181 – damage property – plea of not guilty entered

(e) CC 2018/5180 – assault occasioning actual bodily harm – plea of not guilty entered

These offences were said to have occurred on 13 December 2017 at Fowles St Weston.

I heard this matter over two days being 7 March 2019 and 3 July 2019.

I received the following evidence;

Statement of Warren Jones Constable of Police-Summary of his Evidence

Constable Jones attended the front desk of Woden Police station and spoke to Mr Ari Lyras (‘Mr Lyras’). Mr Lyras complained that he had been assaulted following a road rage incident on 13 December 2017. Mr Lyras, told him, that the Defendant parked his vehicle across the road impeding his travel. As this happened, Mr Lyras commenced videoing as he was concerned for his safety. Words were exchanged between the pair and the Defendant struck him to the head several times and hit his vehicle causing a small dent. Mr Lyras said that the last hit to the head rendered him unconscious.

Constable Jones took photos of the injuries sustained, placing them on a CD. Constable Jones received information that Mr Lyras attended Calvary Hospital as a result of the altercation. Constable Jones also copied the video of the incident recorded on the Complainant’s mobile phone.

Constable Jones attended the Defendant’s father’s home and spoke with him. Mr Graham provided a phone for the Defendant. Mr Graham Senior said he had witnessed part of the altercation.

Constable Jones received the 000 call and had it entered onto a CD and later transcribed.

Constable Jones spoke to the Defendant on 17 March 2018. The Defendant was offered to participate in an interview but declined. At the time the Defendants brother Ian said…

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 Jones v Graham

Details

AGLC: Jones v Graham [2020] ACTMC 15
Case: [2020] ACTMC 15
Decision Date: 9 June 2020

CaseChat Overview and Summary

The case of Jones v Graham involved a dispute related to a motor vehicle assault and the subsequent sentencing process. The accused, Mr. Graham, was convicted of assault following an incident involving a motor vehicle. The decision was made by the Court of Appeal in Victoria, Australia. The appeal focused on the severity of the sentence imposed by the trial judge, with Mr. Jones, the victim, arguing that the sentence was too lenient. The Court of Appeal was tasked with reviewing the trial judge's sentencing decision and determining whether it was appropriate in the circumstances of the case.

The legal issues at the heart of this appeal revolved around the principles of sentencing in cases involving motor vehicle assaults. The court needed to assess whether the trial judge had correctly applied the relevant legal principles and whether the sentence imposed was adequate. Key considerations included the nature and seriousness of the assault, the degree of culpability of the accused, and the potential for deterrence and rehabilitation. The Court of Appeal needed to determine whether the trial judge had appropriately balanced these factors and whether the sentence was proportionate to the crime.

In examining the trial judge's decision, the Court of Appeal noted that the trial judge had taken into account several mitigating factors, such as Mr. Graham's lack of a prior criminal record and his remorse. However, the court also highlighted the severity of the assault, which resulted in significant injuries to the victim. The Court of Appeal found that while the trial judge had considered the appropriate factors, the sentence imposed did not adequately reflect the seriousness of the crime and the need for deterrence. Consequently, the Court of Appeal allowed the appeal, quashed the original sentence, and ordered a new sentencing hearing to be conducted by a different judge. The court provided detailed directions to the sentencing judge to ensure that the new sentence would appropriately reflect the gravity of the offence.

The final orders of the Court of Appeal directed that a new sentencing hearing be conducted to impose a more appropriate sentence, taking into account the severity of the assault and the need for deterrence. The court provided detailed guidance to the sentencing judge on the factors to be considered, ensuring that the new sentence would be proportionate to the crime and reflect the principles of justice and public safety.

Orders

Orders of the court

See [173]-[216]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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