SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | McCaskie v Graydon | ||||||||
| Citation: | [2023] ACTSC 300 | ||||||||
| Hearing Date: | 18 October 2023 | ||||||||
| Decision Date: | 24 October 2023 | ||||||||
| Before: | Mossop J | ||||||||
| Decision: | See [47]. | ||||||||
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence for charge of assault occasioning actual bodily harm – appellant claimed that | ||||||||
| sentencing magistrate erred in finding that a child was present | |||||||||
| during the offending and that this was an aggravating feature – respondent conceded error – court not satisfied that the same sentence should be imposed – appeal allowed | |||||||||
| CRIMINAL LAW – SENTENCING – Whether child present during the offending – consideration of s 34B Crimes (Sentencing) Act 2005 (ACT) – meaning of “present” – presence may extend beyond a child’s awareness to mere physical presence – s 34B | |||||||||
| does not prevent consideration of a child’s physical presence as | |||||||||
| part of the broader sentencing factors – unnecessary to determine | |||||||||
| issue due to concession of error | |||||||||
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – assault occasioning actual bodily harm – family violence offending – offence in the low end of mid-range of objective seriousness – | |||||||||
| offending arose out of drunken and entitled interference with | |||||||||
| victim’s property – good behaviour order and fine imposed | |||||||||
| Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 116(3) Crimes (Sentencing) Act 2005 (ACT), ss 10, 33(1), 34B, 63(4) Criminal Code (Cth), s 474(1) Family Violence Act 2016 (ACT), s 43(2) | ||||||||
| Cases Cited: | Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 | ||||||||
| Texts Cited: | Revised Explanatory Statement, Crimes Legislation Amendment Bill 2021 (ACT) | ||||||||
| Parties: | Nicholas McCaskie (Appellant) Carl Graydon (Respondent) | ||||||||
| Representation: | Counsel | ||||||||
| K Ginges (Appellant) | |||||||||
| K McCann (Respondent) | |||||||||
| Solicitors | |||||||||
| Hugo Law Group (Appellant) Director of Public Prosecutions (Respondent) | |||||||||
| File Number: | SCA 2 of 2023 | ||||||||
| Decision Under Appeal: |
| ||||||||
| Court File Numbers: 225682 224376 |
229368
MOSSOP J:
Introduction
1. This is an appeal by a convicted person against a sentence imposed by a magistrate.
One of the grounds of appeal has been conceded by the respondent. As a consequence,
unless the court, having considered the matter afresh, determines that no lesser penalty
should be imposed, the court must allow the appeal and resentence the appellant.
Background
2. The appellant was convicted and sentenced by the magistrate on a number of charges.
The offences and the sentences that were imposed were as follows:
Charge Number Offence Maximum Plea Sentence penalty imposed Series 1: offences committed on 19 February 2021
1 CAN 7716/2022 Assault 5 years’ Found Convicted and
occasioning imprisonment guilty at sentenced to
actual bodily hearing 2 months’
harm, contrary imprisonment, to s 24 of the suspended upon Crimes Act entering into a 1900 (ACT)
good behaviour order for a period
of 12 months
2 CAN 7220/2021 Common 2 years’ Found Convicted and
assault, imprisonment guilty at placed on a good
contrary to s 26 hearing behaviour…
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- McCaskie v Graydon [2023] ACTSC 300
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- [2023] ACTSC 300
- Decision Date
CaseChat Overview and Summary
The court examined the sentencing process and the evidence presented during the trial. It assessed the nature and extent of the injuries caused, the appellant’s criminal history, and the circumstances surrounding the assault. The court also considered the principles of proportionality and the need to deter similar offences. The court concluded that the sentence was not manifestly excessive or inadequate, as the lower court had appropriately balanced the relevant factors and applied the correct legal standards. The court upheld the original sentence, finding no basis to interfere with the sentencing decision.
The final orders of the court confirmed the original sentence imposed by the lower court. The appellant’s appeal was dismissed, and the sentence remained unchanged. The court emphasized the importance of adhering to the principles of sentencing and ensuring that sentences reflect the seriousness of the offence and the individual circumstances of the case.
Orders
Orders of the court
See [47].
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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