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

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

FILE NUMBER(S): CCA 60248/02

HEARING DATE(S): 15/5/02

JUDGMENT DATE:
16 May 2002

PARTIES :

Regina v Jason Elijah-Jack

JUDGMENT OF: O'Keefe J at 1; Smart AJ at 30

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

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.

60248/02

O’KEEFE J
SMART AJ
16 May 2002

Regina v Jason Elijah-Jack

Judgment

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…

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.

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Details

AGLC: Regina v Jason Elijah-Jack [2002] NSWCCA 177
Case: [2002] NSWCCA 177
Decision Date: 16 May 2002

CaseChat Overview and Summary

The appellant, Jason Elijah-Jack, was convicted of assault occasioning actual bodily harm. He appealed against the sentence imposed by the lower court, arguing that the sentencing judge did not adequately consider his good character, the effects of alcohol and his psychological disorders, and his display of contrition. The appeal was heard by the Court of Appeal in Australia. The appellant sought leave to appeal against the severity of the sentence, contending that the sentencing judge failed to properly weigh his good character and other mitigating factors.

The legal issues before the Court of Appeal were whether the sentencing judge erred in failing to give adequate weight to the mitigating factors presented by the appellant and whether these errors were substantial enough to warrant an appeal against the sentence. Specifically, the court had to determine if the failure to consider the appellant's good character, the impact of alcohol and psychological disorders, and the appellant's display of contrition constituted a significant error that affected the overall sentence imposed.

The Court of Appeal found that the sentencing judge did not adequately consider the appellant's good character, the effects of alcohol and psychological disorders, and the appellant's display of contrition. These omissions were deemed significant errors, as they could have influenced the overall assessment of the appellant's culpability and the appropriate sentence. The court concluded that the errors were substantial enough to warrant an appeal against the sentence. The Court of Appeal granted the appellant leave to appeal against the sentence imposed, finding that the errors in the sentencing process were significant enough to justify a review of the sentence. The appellant's good character, the effects of alcohol and psychological disorders, and his display of contrition were all factors that the sentencing judge should have considered more thoroughly. The court acknowledged that these factors could have impacted the overall assessment of the appellant's culpability and the appropriate sentence. As a result, the Court of Appeal allowed the appeal and remitted the matter back to the lower court for reconsideration of the sentence.

Orders