Stephen Lani v Paul Reynolds

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:

1. The appeal is upheld.

2. The conviction imposed by the Magistrate is confirmed, but otherwise the sentence is set aside.

3. 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.

1. 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.

2. 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.

3. 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.

4. 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…