Stephen Lani v Paul Reynolds - [2013] ACTSC 97

STEPHEN LANI v PAUL REYNOLDS
[2013] ACTSC 97 (16 May 2013)

APPEAL AND NEW TRIAL – appeal from Magistrates Court – appellant sentenced for assault occasioning actual bodily harm – appeal against sentence – whether sentence manifestly excessive – where line of authority held that term of imprisonment usually called for where glass used as a weapon – where Magistrate found appellant did not intend to use glass as a weapon – where appellant negligent in use of glass – a sentence of imprisonment was manifestly excessive – appeal upheld & appellant resentenced

Ross v Mothersole [2010] ACTSC 125 (Unreported, 19 October 2010, Refshauge J)
R v DR (Unreported, 17 November 2010, ACT Supreme Court, Refshauge J)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 99 of 2012

Judge: Burns J
Supreme Court of the ACT

Date: 16 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 99 of 2012
AUSTRALIAN CAPITAL TERRITORY )

STEPHEN LANI
Appellant
v

PAUL REYNOLDS

Respondent

ORDER

Judge:Burns J
Date:16 May 2013
Place:Canberra

THE COURT ORDERS THAT:

The appeal is upheld.
The conviction imposed by the Magistrate is confirmed, but otherwise the sentence is set aside.
The appellant is resentenced to a Good Behaviour Order for a period of 2 years with a condition that the appellant is to accept the supervision of probation and parole for a period of 2 years, or such lesser period is deemed appropriate by his supervising officer, and he is to complete 200 hours of community service within a period of 24 months.

On 13 December 2012, the appellant was convicted in the Magistrates Court of the ACT of an offence of assault occasioning actual bodily harm and was sentenced to 10 months’ imprisonment, suspended upon his entering into a Good Behaviour Order for a period of 2 years and conditional on his acceptance of supervision for that same period. It also ordered that he complete 200 hours of community service within a period of two years.
The appellant appeals from the sentence imposed by the sentencing Magistrate. The sole ground of appeal is that, effectively, the sentence was manifestly excessive. The sole argument which is put forward with respect to the sentence imposed by the Magistrate is that the offence then before her Honour did not call for the imposition of a term of imprisonment.
Her Honour recognised, quite correctly, that before a suspended term of imprisonment may be imposed, the Court must form the view that no other sentence other than a term of imprisonment is an appropriate sentence with respect to the particular offence then before the Court.
Having formed that view, the Court then determines whether the sentence is to be served by way of full-time imprisonment or whether something less than full-time imprisonment would be adequate. In this particular case, the sentencing Magistrate determined that something less than full-time imprisonment would be adequate and, in particular, that a suspended sentence of imprisonment would be sufficient to satisfy the requirements of sentencing with respect to that offence.
There is very little by way of argument that can be put in determining whether a sentence is manifestly excessive. The sentence either is manifestly excessive or it is not.
In support of the proposition that a term of imprisonment was appropriate, the prosecution before the sentencing Magistrate referred her Honour to a number of cases. It is clear that her Honour relied upon the line of authority to which she was referred in forming the conclusion that the case before her called for the imposition of a term of imprisonment. That line of authority effectively held that, where a glass is used as a weapon or is used deliberately so as to inflict injury upon the victim, a term of imprisonment is usually called for so as to satisfy the requirements of punishment and general deterrence. No one could suggest that her Honour would have been in error in following that line of authority if she was satisfied that the appellant had deliberately used the glass or had intentionally used the glass when he struck the blow to the victim in this case.
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 R v DR (Unreported, 17 November 2010, ACT Supreme Court, Refshauge J), again the accused was the aggressor and it was again a case of deliberate glassing.
The learned sentencing Magistrate clearly did not accept the proposition that was put forward by the prosecution that the accused – the appellant in this case – had deliberately used the glass to strike the victim. On page 25 of the transcript at line 16, her Honour said:
I am not satisfied that I can necessarily infer that it was your intent to glass the victim in the way which ultimately transpired. It was certainly reckless at the very least. The prosecutor put some reliance on the fact that the glass was removed from one hand to the other, but that would suggest some level of anticipation which, in the circumstances, which was so quick, and in which the complainant was pressing at your right shoulder at about the time or indeed perhaps after you had moved the glass, I am not satisfied that I can safely infer that your movement of the glass to the right hand indicated an intention to use it in the way that you did. The fact is, however, that you did use it in that way and it is at the very least, reckless, and no doubt that is the basis upon which the plea has been entered.
The charge before her Honour was one of assault occasioning actual bodily harm. The Crown need only prove with respect to such an offence that the accused intended to do the act which constituted the assault and that that act, in fact, caused actual bodily harm. It is no part of the elements of such an offence that the Crown need to prove that the accused intended to inflict actual bodily harm.
I read that portion of her Honour’s sentencing comments to which I have referred as indicating that she was not satisfied that the accused intentionally used the glass to strike the victim. I also read it that her Honour was not satisfied that he had adverted to the fact that he had the glass in his hand at the time that the appellant struck the blow to the victim. In my opinion, her Honour’s reference to recklessness was intended to indicate that her Honour had formed the view that what the accused had done was negligent.
There is a very significant difference between a case where somebody, knowing that a glass is in their hand, strikes a blow to another human being, either intending that the glass strike that other person or knowing that the glass may strike the other person and deciding to proceed nevertheless, and a case where the person strikes a blow with the glass in their hand not recollecting that the glass is there and as such negligently causes the injury to the victim.
On my reading of her Honour’s findings, this case comes within the latter category. I am therefore satisfied that a term of imprisonment could not have been imposed as part of the proper exercise of the sentencing discretion by her Honour. I am satisfied that the sentence imposed was manifestly excessive.
The appellant is to be sentenced on the basis that, as a consequence of his level of intoxication and the fact that the incident was a very brief and violent incident in which he was not the initial aggressor, he did not advert to the fact that he held the glass in his hand at the time that he swung the blow.
Clearly, he was negligent in swinging the blow in the way in which he did, and that is a matter which has some ramifications for sentencing. He is not to be sentenced on the basis that he deliberately used the glass to strike the victim or that he adverted to the fact that he had the glass in his hand before he struck the victim.
The appeal will be allowed and the sentencing imposed by the learned Magistrate will be set aside to the extent that her Honour ordered that the appellant be sentenced to a minimum of 10 months’ imprisonment, fully suspended. In my opinion, the appropriate sentence would have been one of a conviction and a Good Behaviour Order for a period of 2 years as ordered by her Honour, together with 200 hours of community service, but without any sentence of imprisonment being imposed.
So the formal orders that I make are the appeal is upheld. The conviction imposed by the Magistrate is confirmed, but otherwise the sentence is set aside.
I will resentence the appellant. There will be a Good Behaviour Order for a period of 2 years with a condition that he is to accept the supervision of probation and parole for a period of 2 years, or such lesser period is deemed appropriate by his supervising officer, and he is to complete 200 hours of community service within a period of 24 months.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 30 May 2013

Counsel for the Applicant: Mr J Sabharwal

Solicitor for the Applicant: Mr T Sharman

Counsel for the Respondent:  Mr A Webb
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  16 May 2013
Date of Judgment:  16 May 2013