JS v Dylan Robert Johnston

JS v DYLAN ROBERT JOHNSTON

[2013] ACTSC 296 (10 October 2013)

APPEAL AND NEW TRIAL – Appeal from sentence in Magistrates Court – manifest excess – assault occasioning actual bodily harm – whether sentence reveals manifest excess – a sentence is either manifestly excessive or it is not – whether sentence outside of range of sentences which are appropriate with respect to the particular offence and the particular offender – where intentional infliction of harm with a weapon – where sentence towards the lower end of the range of sentences which would be available

Crimes Act 1900 (ACT), s 26
Crimes (Sentencing) Act 2005 (ACT), s 33

Cooper v Corvisy No.  2 (2010) ACTSC 166
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) NSWCCA 194
Ellis (1993) 68 A Crim R 449
Hawkins v Hawkins (2009) ACTSC 148
House v The King (1936) 55 CLR 499
Lani v Reynolds (2013) ACTSC 97
R v Verdins (2007) 16 VR 269

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 61 of 2013

Judge: Burns J             
Supreme Court of the ACT

Date: 10 October 2013          

IN THE SUPREME COURT OF THE     )
  )          No. SCA 61 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

JS

Appellant

v      

DYLAN ROBERT JOHNSTON

Respondent

ORDER

Judge:    Burns J
Date:     10 October 2013
Place:     Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The sentences of the Magistrate are confirmed, with the sentence and Good Behavior Order imposed to date from 10 October 2013.

1. On 24 July 2013, a Magistrate convicted the appellant of one offence of assault occasioning actual bodily harm contrary to s 26 of the Crimes Act 1900 (ACT) and sentenced him to six months’ imprisonment. Her Honour fully suspended the sentence and ordered that the appellant comply with the terms of a Good Behaviour Order for a period of two years and complete 200 hours of community service within that two-year period. The appellant now appeals from the sentence imposed by the Magistrate.

2. The appellant pleaded not guilty to the charge in the Magistrates Court, but the offence was found proved by the Magistrate after a contested hearing.  In these proceedings, the appellant does not challenge the finding of guilt which was made by the Magistrate. 

3. The evidence established that the complainant and some of his friends and colleagues were present at Mooseheads nightclub in the early hours of 2 June 2012.  They were in the basement level of the nightclub playing pool and drinking.  Likewise, the appellant and two of his friends were present on the same level playing pool.  The appellant had not consumed any alcohol in the hours leading up to this offence. 

4. Shortly before 4 am, the complainant jumped on to the pool table being used by the appellant and some of his friends.  He interrupted their game.  The complainant was asked to get down from the table, which…