R v Ghisolfi

Case [2002] NSWCCA 166

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Jason Elijah-Jack  [2002]  NSWCCA 177

FILE NUMBER(S):
60248/02

HEARING DATE(S):               15/5/02

JUDGMENT DATE: 16/05/2002

PARTIES:
Regina v Jason Elijah-Jack

JUDGMENT OF:       O'Keefe J Smart AJ    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          

LOWER COURT JUDICIAL OFFICER:     Nield DCJ

COUNSEL:
Mr D Dalton - Applicant
Mr R Hulme - Crown

SOLICITORS:
Nikola Velcic & Assoc - Applicant
S E O'Connor - Crown

CATCHWORDS:
Appeal
Application for leave to appeal against sentence
Assault occasioning actual bodily harm
Good character
Failure to give adequate weight
Effects of alcohol and psychological disorders
Contrition

LEGISLATION CITED:

DECISION:
1. Leave to appeal granted
2.  Appeal allowed
3.  Sentence imposed in the District Court set aside
4.  The Applicant is sentenced to imprisonmement for one year commencing on 22 April 2002 and expiring on 21 April 2003.  The non-parole period is fixed as three months to commence on 22 April 2002 and expire on 21 July 2002, on which date the Applicant is to be released on parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60248/02

O’KEEFE J
SMART AJ

16 May 2002

Regina v Jason Elijah-Jack

Judgment

  1. O’Keefe J: 

    INTRODUCTION

  2. Jason Elijah-Jack (“the Applicant”) has sought leave to appeal against a sentence imposed in the District Court following a plea of guilty to a charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act, 1900 (the Act).  The Applicant was sentenced to imprisonment for one year and six months to commence on 22 April 2002 and expire on 21 October 2003 with a non-parole period of six months fixed to expire on 21 October 2002.  The maximum penalty for the offence is imprisonment for five years. 

    FACTS

  3. The circumstances involved in the commission of the offence were that the Applicant and the Complainant were living in a de facto relationship which had proved to be somewhat difficult.  On the day of the offence both had consumed a quantity of alcohol.  Following a dispute which arose out of an unsuccessful attempt at sexual relations, the two went for a walk.  They returned to the flat in which they were living and a further dispute ensued in which the applicant punched the Complainant a number of times around the head and body, dragged her by the hair from one room to another and back to the room whence they had come, pushed her onto the bed and hit her again.  He dragged her from the bedroom to the kitchen where he got some ice cubes wrapped them in a tea towel and gave them to her to apply to her head.  He dragged her by the hair back into the bedroom where he again hit her.  The nature and extent of the Complainant’s injuries are quite graphically shown in photographs taken shortly after the assault.

  4. The assault was undoubtedly serious, the blows heavy and repeated and the actions of the Applicant wholly unacceptable.

    BASIS OF APPLICATION

  5. In support of the…

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AGLC
R v Ghisolfi [2002] NSWCCA 166
Case
[2002] NSWCCA 166
Decision Date

CaseChat Overview and Summary

The case of R v Ghisolfi involves Jason Elijah-Jack, who sought leave to appeal against the sentence imposed by the District Court after pleading guilty to a charge of assault occasioning actual bodily harm under section 59 of the Crimes Act 1900. The Applicant was sentenced to imprisonment for one year and six months, with a non-parole period of six months. The Applicant contested the sentence, arguing that the District Court judge had erred in several areas, including failing to adequately consider his good character, the effects of alcohol and psychological conditions, and his contrition.

The legal issues before the court were whether the District Court had erred in assessing the Applicant's good character, the form of the sentence imposed, the consideration of alcohol and mental health effects, and the evaluation of contrition. The Applicant argued that these errors, individually and collectively, led to an excessively high sentence and non-parole period. The court needed to determine whether these arguments had merit and if the sentence should be reconsidered.

In evaluating the application, the court found that the District Court judge had indeed erred in not giving sufficient weight to the Applicant's good character and community service. Furthermore, the court found that the judge had not adequately considered the mitigating effects of alcohol and the Applicant's mental health issues at the time of the offence. Although the judge had not erred in his assessment of contrition, the court concluded that these errors warranted a re-sentencing of the Applicant. In light of the mitigating factors, the court reduced the sentence to one year, with a non-parole period of three months.

The final orders of the court were to grant leave to appeal, allow the appeal, set aside the original sentence, and re-sentence the Applicant to imprisonment for one year with a non-parole period of three months. The Applicant is to be released on parole on 21 July 2002.

Orders

Orders of the court

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Background

Background to the litigation

Jason Elijah-Jack (“the Applicant”) has sought leave to appeal against a sentence imposed in the District Court following a plea of guilty to a charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act, 1900 (the Act). The Applicant was sentenced to imprisonment for one year and six months to commence on 22 April 2002 and expire on 21 October 2003 with a non-parole period of six months fixed to expire on 21 October 2002. The maximum penalty for the offence is imprisonment for five years. FACTS The circumstances involved in the commission of the offence were that the Applicant and the Complainant were living in a de facto relationship which had proved to be somewhat difficult. On the day of the offence both had consumed a quantity of alcohol. Following a dispute which arose out of an unsuccessful attempt at sexual relations, the two went for a walk. They returned to the flat in which they were living and a further dispute ensued in which the applicant punched the Complainant a number of times around the head and body, dragged her by the hair from one room to another and back to the room whence they had come, pushed her onto the bed and hit her again. He dragged her from the bedroom to the kitchen where he got some ice cubes wrapped them in a tea towel and gave them to her to apply to her head. He dragged her by the hair back into the bedroom where he again hit her. The nature and extent of the Complainant’s injuries are quite graphically shown in photographs taken shortly after the assault. The assault was undoubtedly serious, the blows heavy and repeated and the actions of the Applicant wholly unacceptable.BASIS OF APPLICATION In support of the application, it was argued that his Honour had fallen into error in four areas. These were: (i) As to character(ii) In the form of the sentence imposed(iii) The effects of alcohol and the mental condition of the Applicant(iv) In relation to contritionEach of these errors alone, and all errors in combination, so the argument ran, resulted in the sentence and the non-parole periods being erroneously high.(i) Character. It was first submitted on behalf of the Applicant that the evidence revealed him to be of quite exceptional good character and that in fixing the sentence his Honour failed to give weight, or proper weight, to such exceptional character. Secondly counsel argued that, although his Honour referred obliquely to character when determining that there was no alternative to a custodial sentence, he did not take it into account when actually fixing the term of the sentence. In support of this basis of argument, it was pointed out that the evidence revealed that the Applicant had been doing voluntary work for the Red Cross for four years at an average of some 15 hours per week. The Applicant’s evidence to this effect was confirmed by an independent witness, William Patterson, who was a Community Services Worker for the Disadvantaged and Welfare Recipients’ Association of New South Wales. Not only did he confirm that the Applicant carried out such voluntary work, but his evidence also established that the Applicant was a valuable, effective and patient worker amongst the underprivileged. He said that:“On a scale of one to ten, he’d have to be an eight and a half to a nine … Jason seems to give us that quality that most volunteers find hard to get across because they’re unpaid.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

When the Applicant saw Dr Westmore he gave a version of the facts which was inconsistent with the Agreed Statement of Facts and the severity of the assault as demonstrated by the photographs which were before his Honour and this Court. It tended to be self-justifying. At that time the Applicant intended to plead not guilty as he was being charged with a more serious offence than that presently before the Court. However, on the lesser charge proffered he pleaded guilty. Since contrition was a factor favourable to the Applicant, the onus of establishing it lay on him. There was evidence before his Honour on which he could properly conclude that he was not satisfied as to the contrition of the Applicant. In so finding, I am opinion that his Honour did not err.CONCLUSION Two errors in the sentencing process have been identified. These warrant the Court re-sentencing the Applicant.SENTENCE It is appropriate, in my opinion, to review the sentence imposed by his Honour and to reduce it by reference to the factors favourable to the Applicant which were not given weight or adequate weight in the sentencing process in the Court below. In re-determining the sentence it should be borne in mind that the offence was serious. It was committed by a strong young man on a woman who, although the de facto of the Applicant, was some ten years older than he. Furthermore, the sentence imposed should reflect that the Court will not tolerate attacks of such a kind and that in a case such as the present a custodial sentence will usually be appropriate. In the instant case a custodial sentence is, in my opinion, appropriate. The term of the sentence should be viewed objectively much in the way it was viewed by his Honour. However, when regard is had to subjective features an additional discount on the sentence should be given for the exceptional good character of the Applicant, his record of community service through voluntary charitable work for the Red Cross and having regard to the circumstances in which the offence was committed, namely the effect of the alcohol that the Applicant and Complainant had consumed together superimposed on the anxiety, depression and other problem from which the Applicant suffered at the relevant time. Having regard to the foregoing matters I am of opinion that the sentence imposed by the trial Judge should be reduced to a sentence of imprisonment for one year from 22 April 2002 and expiring on 21 April 2003 and that the non-parole period should be reduced to three months to commence on 22 April 2002 and expire on 21 July 2002. The alteration in the statutory ratio between the sentence and the non-parole period is because of the finding of special circumstances made by his Honour, with which I agree.ORDERS For the foregoing reasons I propose orders as follows:1. Leave to appeal granted.2. Appeal allowed.3. Sentence imposed in the District Court set aside.4.The Applicant is sentenced to imprisonment for one year commencing on 22 April 2002 and expiring on 21 April 2003. The non-parole period is fixed as three months to commence on 22 April 2002 and expire on 21 July 2002, on which date the Applicant is to be released on parole.

Ratio Decidendi

Legal Principle Established

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