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Ross v Mothersole

Ross v Mothersole

Case [2010] ACTSC 125 19 October 2010

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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,…

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 Ross v Mothersole

Details

AGLC: Ross v Mothersole [2010] ACTSC 125
Case: [2010] ACTSC 125
Decision Date: 19 October 2010

CaseChat Overview and Summary

The defendant, Ross, appealed against his conviction and sentence in the Australian Capital Territory Magistrates Court for domestic violence offences, including serious assault. The appeal was heard by the ACT Supreme Court, which found that the magistrate had erred in imposing a sentence that did not adequately account for the defendant’s guilty plea and the level of culpability.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Ross v Mothersole [2010] ACTSC 125

Most Recent Citation

Cooper v Corvisy (No 2) [2010] ACTSC 166

Cases citing this decision · 8 of 8 shown

Director of Public Prosecutions v Ivanisevic (No 2)
[2023] ACTSC 374

…rce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Reid v The Queen [2014] VSCA 145; 42 VR 295 Ross v Mothersole [2010] ACTSC 125 R v Baxendale [2018] ACTSC 260 R v Bonfield [2021] ACTSC 362 R v Brown (1992) 73 CCC (3d) 242 R v DR (Unreported, ACT Supreme Court, Refshauge J, 2010)…
R v Peric
[2022] ACTSC 385 Para 1

…These comments have been adopted in this Territory: see Ross v Mothersole [2010] ACTSC 125 at [43]. Similar comments have been made as well: R v Bell [2005] ACTSC 123, where, at [30], domestic violence was described as “a pernicious and evil phenomenon”. See also Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 at 18…
Dang v Li
[2021] ACTSC 179 Para 1

…ortly after making the finding that the victim will be left with a significant and permanent scar, the sentencing court referred to Ross v Mothersole [2010] ACTSC 125 ( Mothersole ), stating (emphasis added):…
Urlich v The Queen
[2019] ACTCA 30

…NSWCCA 204 R v Wheeler [2015] SASCFC 83 R v XX [2017] NSWCCA 90; 266 A Crim R 132 Romero v The Queen [2011] VSCA 45; 32 VR 486 Ross v Mothersole [2010] ACTSC 125 Saga v Reid [2010] ACTSC 59 Sherna v The Queen [2011] VSCA 242; 32 VR 668 Siwek v The Queen [2017] NSWCCA 178 Taylor v The Queen [2014] ACTCA 9 The Queen…
Stephen Lani v Paul Reynolds
[2013] ACTSC 97 Para 7

…In the matter of Ross v Mothersole [2010] ACTSC 125, I note that the accused was the aggressor, that there was a deliberate glassing and also that the victim in that matter was his partner, and that the relationship between them had been characterised by violence by the accused towards the victim. In the matter of…
Graham Milton Joyce v Damien Troy Clark
[2012] ACTSC 74 Para 1

…Pleas of guilty are significant in sentencing for several reasons. In Ross v Mothersole [2010] ACTSC 125, Refshauge J made the following comments about the significance of a plea of guilty:…
R v Ross
[2011] ACTSC 211 Para 1

…which the courts have said it should be treated. I referred to Winch v The Queen [2010] VSCA 141 and what I had said earlier in Ross v Mothersole [2010] ACTSC 125 (at [88] – [89]) about such assaults.…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…In Ross v Mothersole [2010] ACTSC 125, I noted (at [57]) that paragraph six was controversial and that it may not represent the law.…

View all 8 citing cases →

Cases cited in this decision · 25 of 25 shown

R v Holder
[2019] SASCFC 73

…ationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must a…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53 Para 1

…s required by s 37 of the Sentencing Act is similar to a failure to give reasons for decision, which invalidates a judgment: Pettitt v Dunkley [1971] 1 NSWLR 376. These principles appear to apply to sentencing: R v Thomson (2000) 49 NSWLR 383 (at 394 [42]). They apply more widely in criminal cases, too. See Ha…
Saga v Reid
[2010] ACTSC 59 Para 1

…In Saga v Reid & Anor [2010] ACTSC 59, I set out the principles upon which such appeals are to be conducted, when I wrote (at [44]):…
R v Thorn
[2010] ACTCA 10 Para 33

…by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion. See also R v Thorn [2010] ACTCA 10 (at [33]).…
R v Riddle
[2010] ACTCA 8 Para 1

…I have also had regard to other recent decisions of this Court including R v Riddle [2010] ACTCA 8 and a number where lower sentences were imposed. It is true that there are some earlier decisions I found where longer sentences were imposed, but not in the last ten years.…
Hawkins v Hawkins
[2009] ACTSC 148

…32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]): 46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be ac…
Spooner v R
[2009] NSWCCA 247 Para 1

…e Queen , it was clear that the glass was there intentionally used as a weapon. This is very relevant on sentence as was noted in Spooner v The Queen [2009] NSWCCA 247, where the court identified the relevant distinctions to be made in sentencing depending upon whether the use of the glass as a weapon was intended o…
The Queen v Morse
[2009] NZCA 51

…34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily…
Sayin v R
[2008] NSWCCA 307 Para 1

…Perhaps importantly for this appeal, the prosecutor handed up a copy of a decision of the NSW Court of Criminal Appeal in Sayin v The Queen [2008] NSWCCA 307 where Grove J (with whom McClellan CJ at CL and Howie J agreed) cited (at [8]) what the District Court Judge had said in sentencing, with apparent approval, na…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…He also referred to what I said in Cotter v Corvisy (2008) 1 ACTLR 299 (at [54]), namely:…
Lumby v Cooper
[2008] ACTSC 53 Para 119

…hat the learned Magistrate did not make one reference to the appellant’s plea of guilty. Given the constraints on a Magistrate, (see Lumby v Cooper [2008] ACTSC 53 at [119]), not much may be required to discharge the obligation under s 35(2)(a) of the Crimes (Sentencing) Act to do so. An express reference is usual…
Moutrage v Haines
[2008] ACTSC 36 Para 25

…to discharge the obligation under s 35(2)(a) of the Crimes (Sentencing) Act to do so. An express reference is usually sufficient: Moutrage v Haines [2008] ACTSC 36 at [25]. Acknowledgement by the sentencer of the submission by the prosecution that the plea will be taken into account may also be sufficient and this…
Carpenter v Purcell
[2008] ACTSC 34 Para 1

…how that the learned Sentencing Magistrate had taken the plea into account and appropriately. He relied on what Penfold J said in Carpenter v Purcell [2008] ACTSC 34 where (at [17] - [19]) her Honour said:…
Anthony Mark Ward v The Queen
[2008] ACTCA 5

…een (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, unrepor…
Peter Wilson v The Queen
[2007] ACTCA 25

…essly state that the failure to do so does not invalidate the order made (see, eg ss 78, 82, 89 and 117). These have been discussed in Wilson v Queen [2007] ACTCA 25; they are, however, different, in that they require reasons which s 37 does not in terms require. Applying the canon of statutory construction “expre…
Evans v The Queen
[2007] HCA 59 Para 1

…WLR 383 (at 394 [42]). They apply more widely in criminal cases, too. See Harris v The Queen (2005) 158 A Crim R 454 (at 459 [22]); Evans v The Queen (2007) 235 CLR 521 (at 595-6 [246]).…
R v DAVIES
[2007] NSWCCA 178 Para 1

…glass was, in effect, a reflex response and not intentional, the sentences imposed have been significantly less severe. See, for example, R v Davies [2007] NSWCCA 178.…
Markarian v The Queen
[2005] HCA 25 Para 1

…s is part of the evidence that goes to make up the ultimate sentence, although not always able to be mathematically calculated: Markarian v The Queen (2005) 228 CLR 357 (at 375 [39]).…
Cameron v the Queen
[2002] HCA 6 Para 1

…ilitates the course of justice saving the community the costs of a trial: Siganto v The Queen (1998) 194 CLR 656 (at 663-4 [22]); Cameron v The Queen (2002) 209 CLR 339 (at 343 [11]-[12]).…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…reasons for decision, which invalidates a judgment: Pettitt v Dunkley [1971] 1 NSWLR 376. These principles appear to apply to sentencing: R v Thomson (2000) 49 NSWLR 383 (at 394 [42]). They apply more widely in criminal cases, too. See Harris v The Queen (2005) 158 A Crim R 454 (at 459 [22]); Evans v The Queen (2007)…
Siganto v the Queen
[1998] HCA 74 Para 1

…nsibility, it is usually evidence of remorse, and it facilitates the course of justice saving the community the costs of a trial: Siganto v The Queen (1998) 194 CLR 656 (at 663-4 [22]); Cameron v The Queen (2002) 209 CLR 339 (at 343 [11]-[12]).…
Veen v The Queen (No 2)
[1988] HCA 14

…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…
Houssein v Under Secretary of Industrial Relations and Technology (NSW)
[1982] HCA 2

…to be applied with care and is not of universal application ( Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94) and may not apply when dealing with different requirements, as here: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45…
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd
[1979] HCA 62

…148 CLR 88 at 94) and may not apply when dealing with different requirements, as here: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50. My impression is that failure to comply with s 37 would not invalidate a sentence, but I do not need to decide this.…
[1957] 2 QB 396
[1957] 2 QB 396 Para 1

…serious offence than that which Mr Ross was facing, although, of course, “maliciously” refers to both intention and recklessness: R v Cunningham [1957] 2 QB 396 (at 399-400).…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
35(4), 37, 7 4 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)