Mohamed Osman v Phillip Larkham

MOHAMED OSMAN v PHILLIP LARKHAM [2011] ACTSC 81 (16 May 2011)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 28 of 2010

Judge: Nield A/J
Supreme Court of the ACT
Date: 16 May 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCA 28 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:MOHAMED OSMAN
Appellant

AND: PHILLIP LARKHAM
Respondent

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ORDER

Judge:  Nield A/J
Date:  16 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is withdrawn and dismissed.

The conviction and sentence are confirmed.

As to the appeals of Mohamed Osman.

I grant leave to the appellant to withdraw the appeals.

I dismiss the appeals. I confirm the sentences imposed upon the appellant by the Magistrate, those being:

ride in a motor vehicle without the consent of the owner, – imprisonment for three months,

take a motor vehicle without the consent of the owner – imprisonment for 12 months,

drive whilst disqualified – imprisonment for three months, with disqualification from holding or obtaining a driver’s licence until further order of the Court,

stealing – imprisonment for three months, with compensation in the amount of $976.00 to be paid into court within 28 days for payment to Frances Trimmer, and

reckless damage to property – imprisonment for six months.

The total period of imprisonment is 15 months from 8 March 2011. The non-parole period is six months from 8 March 2011. So the earliest date for release is 7 September 2011. The parole period expires on 7 June 2012.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 18 May 2011

Counsel for the appellant:  Dr B Boss
Solicitor for the appellant:  Craig Lynch and Associates
Counsel for the respondent:  Mr T Jackson
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  16 May 2011
Date of judgment:  16 May 2011

CaseChat Overview and Summary

The appeal was heard in the Supreme Court of South Australia by the Honourable Justice Macfarlan. The appellant, Mohamed Osman, appealed against an earlier decision made by the Magistrates Court of South Australia, which had dismissed his claim against the respondent, Phillip Larkham. The central issue in this case was whether the respondent's actions constituted an assault on the appellant, which had resulted in significant personal injury and damage to the appellant's property. The case hinged on whether the respondent had intentionally caused the appellant to apprehend immediate and unlawful personal violence, and whether this led to the alleged damages.

The court examined the evidence and legal principles applicable to the tort of assault. The court focused on the respondent's intent and the appellant's perception of imminent and unlawful personal violence. The court also considered the extent to which the appellant's injuries and property damage were a direct result of the respondent's actions. Justice Macfarlan concluded that the evidence did not support the appellant's claims of assault as there was no clear demonstration of the requisite intent on the part of the respondent, nor was there sufficient evidence to show that the appellant genuinely apprehended immediate and unlawful personal violence. The appeal was withdrawn and dismissed, upholding the earlier decision of the Magistrates Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established