Tracy Graf v Tristan Thexton

[2010] ACTSC 100

TRACY GRAF v TRISTAN THEXTON [2010] ACTSC 100 (26 August 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 31 of 2010

Judge:  Nield A/J
Supreme Court of the ACT
Date:   26 August 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 31 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:TRACY GRAF

Appellant

AND:             TRISTAN THEXTON
  Respondent

ORDER

Judge:  Nield A/J
Date:  26 August 2010 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Set aside the conviction and quash the orders made by the sentencing Magistrate.

3. The offence proved without proceeding to conviction.

4. Appellant pay Court Costs of $63 and Criminal Injury Compensation Levy of $50 to       the Court Registrar within 28 days.

As to the appeal of Tracy Graf –

1. At about 11.45 pm on 3 April 2010 the appellant, Ms Tracey Graf, assaulted the complainant, Ms Sharina Barry, by punching her numerous times to her head.

1. At about 11.55 pm on 3 April 2010 police arrested the appellant, took her to a police station and charged her with the offence of common assault, contrary to section 26 of the ACT Crimes Act, for which the prescribed penalty is imprisonment for a maximum of two years.

1. On 4 April 2010, after being charged, the appellant was released from custody on bail to appear before a magistrate in the ACT Magistrates Court on 6 May 2010.

1. Accordingly, on 6 May 2010 the appellant appeared before a magistrate in the ACT Magistrates Court to answer the charge.  She pleaded guilty to the charge.  She did not give evidence or present any evidence on the sentencing proceedings.  She was convicted of the offence, fined $300, ordered to pay court costs of $63 and criminal injury compensation levy of $50, and ordered to enter into a bond to be of good behaviour for 18 months.

1. On 6 May 2010 the appellant, being dissatisfied with the magistrate’s conviction and orders, lodged her Notice of Appeal to this court.  The Notice of Appeal contained 14 grounds of appeal.

1. However, on 25 August 2010 the appellant’s counsel filed the appellant’s submissions with the court.  Her counsel wrote that:

“The issue on this appeal is the recording of a conviction against the   appellant.”

1. The appellant’s counsel submitted that the magistrate had erred in failing to take into account:

(a)       that the appellant was affected by alcohol at the time of commission of the offence, as required by section 33(1)(p) of the ACT Crimes (Sentencing) Act;

(b)       that the recording of a conviction would likely cause particular hardship to the appellant, as required by section 33(1)(r) of the Act, and

(c)       that the offender had demonstrated remorse, as required by section 33(1)(w) of the Act.

1. The Crown prosecutor’s submissions were filed with the court on 25 August 2010.  In short, the Crown prosecutor submitted that none of the 14 grounds, including the three specifically relied upon by the appellant’s counsel, had been made out.

1. The magistrate’s decision was short and to the point.  Her Honour referred to the penalty for the offence, the appellant’s age, her hitherto good character, her guilty plea, her acceptance of responsibility for what she did, and to the need for deterrence.  Unfortunately, her Honour did not refer to:

(a)       the facts giving rise to the offence which she accepted,

(b)       where within the spectrum of objective seriousness the offence fell,

(c)       the appellant’s level of intoxication,

(d)       the effect that her intoxication had upon her,

(e)       her remorse,

(f)       the prospect for her rehabilitation and the likelihood of her not re‑offending, and

(g)       the effect that a conviction might have upon her employment or travel. 

However, her Honour referred to the fact that the appellant lived in Queanbeyan in New South Wales, and to the fact that the appellant had “picked” a fight.

1. I regret to say that I consider that her Honour failed to consider relevant matters, and that she considered irrelevant matters.

1. That said, I add that her Honour was not assisted by the appellant’s legal representative.  Evidence of the relevant matters was not placed before her Honour.  Although I recognise that sentencing proceedings before a magistrate in a busy court are more informal than formal, being so does not relieve an offender, or his or her legal representative, from adducing evidence of matters which are considered relevant to the determination of an appropriate sentence.  However else, I ask rhetorically, would the magistrate be able to determine an appropriate sentence?

1. If the only problem was that her Honour failed to consider relevant matters then, in the absence of evidence of those matters, I would dismiss the appeal.

1. However, as her Honour seems to have concluded that the appellant “picked” the fight when the evidence did not support that conclusion, and her Honour seems to have regard to the fact that the appellant lived in Queanbeyan in New South Wales, rather than in the Australian Capital Territory, as an aggravating factor of the offence, I propose to allow the appeal.

1. Accordingly, I allow the appeal.   I set aside the conviction and I set aside the fine, order to pay court costs and criminal injury compensation levy, and the order for the good behaviour bond.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate: I Fernandez

Date:   13 September 2010

Counsel for the appellant:  Mr R Thomas
Solicitor for the appellant:  Rosemary Benet and Associates
Counsel for the respondent:  Mr J Lundy
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  26 August 2010 
Date of judgment:  26 August 2010