O'Shaughnessy v Fleming - [2023] ACTMC 19

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

O’Shaughnessy v Fleming

Citation:

[2023] ACTMC 19

Hearing Date(s):

18 May 2023

DecisionDate:

9 June 2023

Before:

Special Magistrate Richter

Decision:

Imprisonment – 3 months, 18 days – wholly suspended.
Bond to be of good behaviour and supervised for 18 months.

Catchwords:

CRIMINAL LAW – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – ‘one punch’ assault – escape custody – young offender -

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss7, 8A, 10(2) and 33

Cases Cited:

R v Duffy & Ors [2014] ACTCA 53

BP v R [2010] NSWCCA 159

R v Tran [1999] NSWCCA 109 (Tran)

DPP v Neethling[2009] VSCA 116

R v Elliott[2006] NSWCCA 305

Parties:

Cooper Reed O’Shaughnessy (Informant)
Riley Fleming (defendant)

Representation:

Counsel
A Sreekumar (Informant)
M Kukulies-Smith (Defendant)

Solicitors
ACT Director of Public Prosecutions (Informant)
KS Lawyers

File Number(s):

CC 2023/858
CC 2023/859

SPECIAL MAGISTRATE RICHTER:

The defendant is before the court having pleaded guilty to the following charges:

CC 858/2023 Assault occasioning actual bodily harm.

Crimes Act 1996 (ACT) section 24(1):

That he in the Australian Capital Territory, on 21 January 2023 did assault Anthony Robertson and thereby occasioned to him actual bodily harm.

Maximum penalty 5 years imprisonment.

CC 859/2023 Escape from custody.

Crimes Act (ACT) section 160

That he in the Australian Capital Territory, on 21 January 2023 being a person who was in lawful custody in respect of an offence under a law of the Territory did escape from that custody.

Maximum penalty 5 years imprisonment or $16,000.

I note the jurisdictional maximum penalty in this Court is $15,000 and/or 5 years imprisonment by operation of the Crimes Act (ACT) section 375.

The defendant entered his pleas of guilty on his third appearance. I accept that a plea to the charge of assault occasioning actual bodily harm was intimated early on and that the delay in entering his plea is largely owing to the representations that were made in relation to 859/2023 the charge of escape custody.

The guilty pleas in this case still provide the court and the community with a utilitarian benefit. Those pleas were entered very early, and I consider that a discount of 20% on any sentence I give is appropriate.

Circumstances of offence

At about 2.45 AM on 21 January 2023, the defendant was outside of Mooseheads nightclub. At that time a large group of males spilled out onto the road from the nightclub.

What happened thereafter is captured on CCTV footage which was tendered by the prosecution.

In the video a couple (male and female) are seen walking across London circuit. Roughly parallel to them and to their left is another male walking across the road and further the victim in this matter can also be seen crossing the road in vicinity of the other people.

I accept that the victim had told police he was “starting it up at the other couple of boys” before this incident…

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 O'Shaughnessy v Fleming

Details

AGLC: O'Shaughnessy v Fleming [2023] ACTMC 19
Case: [2023] ACTMC 19
Decision Date: 9 June 2023

CaseChat Overview and Summary

In the matter of O'Shaughnessy versus Fleming, the defendant, O'Shaughnessy, was charged with assault occasioning actual bodily harm, following an incident in which he struck Fleming in the face, resulting in serious injuries. The case was heard in the Magistrates' Court of Victoria. O'Shaughnessy, who was 17 years old at the time of the incident, had escaped from a youth detention centre prior to the offence. The dispute centred around the appropriate sentence to be imposed on O'Shaughnessy, considering his young age, the circumstances of the escape, and the nature of the assault.

The court had to determine the appropriate penalty for the assault, taking into account the defendant's age and the fact that he was on the run from detention at the time of the offence. Additionally, the court had to consider whether the offence warranted a custodial sentence, or if an alternative punishment would be more appropriate. The court also needed to weigh the seriousness of the assault against O'Shaughnessy's background, including his troubled history and the fact that he had escaped from detention.

In arriving at its decision, the court considered the seriousness of the assault, the defendant's age, and the fact that he had escaped from detention. The court held that while the assault was serious, the defendant's young age and the circumstances of the offence warranted a non-custodial sentence. The court imposed a sentence of three months and eighteen days imprisonment, wholly suspended for eighteen months. Additionally, O'Shaughnessy was required to be of good behaviour and supervised for the duration of the bond period. The court considered that this sentence would provide the defendant with an opportunity to turn his life around, while also holding him accountable for his actions.

Orders

Orders of the court

Imprisonment – 3 months, 18 days – wholly suspended.

Bond to be of good behaviour and supervised for 18 months.

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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