EGAN DARIUS ROSS v DARREN STEPHEN MOTHERSOLE
[2010] ACTSC 125 (19 October 2010)
APPEAL AND NEW TRIAL – appeal from ACT Magistrates Court – domestic violence offences – serious assault.
SENTENCE – plea of guilty – need to disclose effect on sentence of guilty plea.
SENTENCE – effect of culpability on sentence – intention or recklessness – need for finding.
Crimes (Sentencing) Act 2005 (ACT), ss 7, 35(4), 37
Criminal Code 2002 (ACT)
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10
Veen v The Queen (No 2) (1988) 164 CLR 4645
R v Hamid (2006) 164 A Crim R 179
Sayin v The Queen [2008] NSWCCA 307
Saga v Reid & Anor [2010] ACTSC 59
R v Campbell [2010] ACTCA 20
Carpenter v Purcell [2008] ACTSC 34
Cotter v Corvisy (2008) 1 ACTLR 299
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Thomson (2000) 49 NSWLR 383
Harris v The Queen (2005) 158 A Crim R 454
Evans v The Queen (2007) 236 CLR 521
R v Boyce (ACTSC, Crispin J, SCC 233 of 2006, 20 November 2006, unreported)
R v Ward [2008] ACTCA 5
R v Gorman (ACTSC, Refshauge J, SCC 319 of 2008, 17 November 2008, unreported)
R v Roberts (ACTSC, Refshauge J, SCC 126 of 2009, 31 May 2010, unreported)
R v Riddle [2010] ACTCA 8
Siganto v The Queen (1998) 194 CLR 656
Cameron v The Queen (2002) 209 CLR 339
Markarian v The Queen (2005) 228 CLR 357
R v Cunningham [1957] 2 QB 396
Spooner v The Queen [2009] NSWCCA 247
R v Davies [2007] NSWCCA 178
JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
SCA 26 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 October 2010
IN THE SUPREME COURT OF THE )
) No. SCA 26 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
EGAN DARIUS ROSS
V
DARREN STEPHEN MOTHERSOLE
ORDER
Judge: Refshauge J
Date: 19 October 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The sentence on the count of assault occasioning actual bodily harm be set aside.
In lieu, a sentence of 2 years’ imprisonment to date from 19 February 2010 be imposed.
The other sentences be confirmed, thus amounting to a total head sentence of 30 months.
A non-parole period of 10 months to date from 19 February 2010 be set.
Mr Egan Darius Ross appeals from sentences imposed by Magistrate Campbell for two serious assaults, one occasioning actual bodily harm, and two other offences committed in the City Watch House after he was arrested by police.
Mr Ross was sentenced on 24 March 2010 by the learned Sentencing Magistrate to a total of 36 months imprisonment with a non-parole period of 18 months.
He appeals against these sentences on the ground that they were manifestly excessive.
The Facts
It appears that Mr Ross and the victim of the two assaults were in a relationship. Indeed,…
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- AGLC
- Ross v Mothersole [2010] ACTSC 125
- Case
- [2010] ACTSC 125
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had failed to properly consider the effect of the defendant's guilty plea on the sentence, and whether the sentencing judge had made the necessary findings of culpability. The court needed to determine if the sentences imposed were appropriate in light of these considerations, particularly given the serious nature of the assault.
The court found that the sentencing judge had not sufficiently accounted for the effect of the defendant's guilty plea on the sentence. The court also found that the sentencing judge had not made the necessary findings of culpability. These errors meant that the sentences imposed were manifestly inadequate. The court held that the sentencing judge should have imposed a sentence of two years’ imprisonment for the assault occasioning actual bodily harm, with a non-parole period of 10 months.
The appeal was upheld, and the sentence on the count of assault occasioning actual bodily harm was set aside, to be replaced with a sentence of 2 years’ imprisonment to date from 19 February 2010. The other sentences were confirmed, resulting in a total head sentence of 30 months. A non-parole period of 10 months to date from 19 February 2010 was also set.
Orders
Orders of the court
1. The appeal be upheld.
2. The sentence on the count of assault occasioning actual bodily harm be set aside.In lieu, a sentence of 2 years’ imprisonment to date from 19 February 2010 be imposed.
3. The other sentences be confirmed, thus amounting to a total head sentence of 30 months.
4. A non-parole period of 10 months to date from 19 February 2010 be set.
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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