Joseph Raymond Giucci v Michael Serbatoio - [2005] ACTSC 132

JOSEPH RAYMOND GIUCCI v MICHAEL SERBATOIO

[2005] ACTSC 132 (28 November 2005)

EX TEMPORE JUDGMENT

Crimes Act 1900 (ACT)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 68 of 2005

Judge:Higgins CJ

Supreme Court of the ACT

Date:28 November 2005

IN THE SUPREME COURT OF THE)

)No. SCA 28 of 2005

AUSTRALIAN CAPITAL TERRITORY)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JOSEPH RAYMOND GIUCCI

Plaintiff

AND:MICHAEL SERBATOIO

Defendant

ORDER

Judge:Higgins CJ

Date:28 November 2005

Place:Canberra

THE COURT ORDERS THAT:

1.The appeal is allowed setting aside the conviction and directing that no conviction is to be recorded against the appellant upon him entering a recognizance in the sum of $500 to be of good behaviour for 12 months.

2.The orders are otherwise confirmed save that time to pay the court costs and criminal injury compensation levy, totalling $104, is extended to 28 days from 28 November 2005.

3.The facts are not in dispute.It is common ground that at about 3 am in the morning on 24 April 2005 Mr Phillip Martin was standing near the front entrance of Mooseheads Bar, in London Circuit in Canberra City.I accept that by chance the appellant, Joseph Raymond Guicci (date of birth 17 December 1982), was walking past.He heard a comment of an offensive nature, which I will not repeat but is in evidence, apparently addressed to him by Mr Martin.

4.I accept that there was prior to that night a longstanding relationship between the appellant and Ms Stiles who had worked at Mooseheads, that there was an interruption in that relationship in the course of which she formed a relationship with Mr Martin that lasted about 2 months before it ended.

5.It is of course apparent, and a reasonable inference to draw, that Mr Martin, being resentful of that, and/or feeling jealous of the appellant, whichever be the expression of it, directed the remark he did towards him.The appellant swung his left arm towards Mr Martin, struck him in the chest area, which caused Mr Martin to stumble back and fall onto a metal and timber bin causing some pain and soft tissue swelling in his lower back.It was a single blow.It was not with a closed fist.But it was unjustified and unlawful and it did cause some injury, albeit a relatively slight injury.

6.The issue before his Honour was simply what penalty should be imposed upon the appellant.It was very much a matter of discretion.The issue raised by Mr Sharman was whether his Honour should have applied s 402 (Crimes Act 1900 (ACT)).And certainly his Honour gave consideration to that submission.But his Honour’s finding in relation to the facts of the matter is called into question.That finding was that the incident was an unprovoked, uncalled for assault by the appellant upon someone who was minding his own business.That is directly contrary, of course, to the appellant’s evidence before me, which I accept.But it was also in the face of…

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.

Keep reading for free

Create a free CaseChat account to read Joseph Raymond Giucci v Michael Serbatoio and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] ACTSC 132
Decision Date

CaseChat Overview and Summary

Joseph Raymond Giucci appealed against a conviction and penalty imposed by the Magistrates Court of the Australian Capital Territory, in proceedings heard by Higgins CJ in the Supreme Court of the ACT. The appeal was against a conviction for assault and the penalty imposed, namely a fine and a conviction to be recorded. The incident leading to the appeal occurred in the early hours of 24 April 2005 when the appellant struck Mr Martin in the chest, causing him to fall and suffer minor injuries. The primary issue for the court was whether the penalty imposed was appropriate and whether there was any error in the sentencing process. The court found that the incident was not particularly violent, though it did involve an unjustified and unlawful assault. The appellant had pleaded guilty and was remorseful, and his character references were positive.

The court found that there was an error in the sentencing process in that the magistrate had not accepted the appellant's evidence that the incident was not unprovoked and uncalled for. The court found that the prosecution had not disputed this aspect of the appellant's evidence, indicating that it was not in a position to do so. The court found that the magistrate should have accepted the appellant's evidence and that the penalty imposed was excessive. The court allowed the appeal, set aside the conviction and directed that no conviction is to be recorded against the appellant upon him entering a recognizance in the sum of $500 to be of good behaviour for 12 months. The orders were otherwise confirmed, save that time to pay the court costs and criminal injury compensation levy, totalling $104, was extended to 28 days from 28 November 2005.

Orders