Garret James Grimshaw v Matthew John Mann

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 29 August 2013
• Court: Supreme Court of ACT
• Date: 29 August 2013
• Docket Number: No. SCA 45 of 2013

[2013] ACTSC 189

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCA 45 of 2013

Between:

Garret James Grimshaw

Appellant

and

Matthew John Mann

Respondent

Counsel for the Applicant: Mr H Ford

Counsel for the Respondent: Mr M Fernandez

Anderson v The Queen (1993) 177 CLR 520

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

Ex parte Bowen (1917) 34 WN(NSW) 41

Ex parte Madsen; Re Hawes (1960) SR(NSW) 550

Ex parte Normanby; Re Britliff (1954) 54 SR(NSW) 299

Ex parte Porter (1902) 19 WN(NSW) 37

Grooms v Toohey (2012) 7 ACTLR 1

Licciardello v McPherson [2012] ACTSC 31

Ludeman v The Queen (2010) 208 A Crim R 298

Nikro v O'Sullivan [2013] ACTSC 129

Pearce v The Queen (1998) 194 CLR 610

R v Birks (1990) 48 A Crim R 385

R v Bloomfield (1998) 44 NSWLR 734

R v Daetz (2003) 139 A Crim R 398

R v Edwards [2012] QCA 117

R v Freestone [2009] QCA 290

R v Lambeth Metropolitan Stipendiary Magistrate; Ex parte McComb [1983] 1 QB 551

R v Malcolm (1908) 8 SR(NSW) 6

R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 May 2013)

R v TW (2011) 6 ACTLR 18

Saga v Reid [2010] ACTSC 59

Shoard v Van Der Zanden [2013] WASC 163

Smith v Tasmania [2012] TASCCA 3

Watson v Metropolitan Reception Centre (1971) 1 NSWLR 67

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), s 47

Domestic Violence Protection Orders Act (2008)

Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10.2

APPEAL — Appeals from the Magistrates Court — appeal against sentence — appeal on the ground of manifest excess

EVIDENCE — Documentary evidence — desirability of marking documentary evidence as exhibits

CRIMINAL LAW — General matters — where injuries sustained are incongruent with offence to which the offender has pleaded guilty — where injuries may amount to actual bodily harm but offender pleaded guilty to common assault

ORDER

THE COURT ORDERS THAT:

• 1. The appeal be upheld.

• 2. The conviction of Mr Grimshaw of common assault on 2 June 2012 be confirmed.

• 3. The sentence of 29 May 2013 be set aside.

• 4. Mr Grimshaw be sentenced as ten months imprisonment to commence on 28 May 2013 and that sentence be suspended for two years from 27 August 2013.

• 5. Mr Grimshaw be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act, for a period of two years with the following conditions:

  • (a) that Mr Grimshaw be subject to the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise him considers appropriate, and obey all reasonable directions of the person delegated to supervise him.

  • (b) that Mr Grimshaw comply with the conditions of any personal protection order for which [redacted for legal reasons] or her children are aggrieved persons under the Domestic Violence Protection Orders Act (2008).

  • (c) that Mr Grimshaw attend such assessments, rehabilitation programs, or counselling in relation to the use of alcohol or illicit, as to anger management, domestic violence prevention, or parenting skills, as the person delegated to supervise him may direct.

  • (d) that Mr Grimshaw provide a sample of breath, saliva or urine for the purpose of alcohol or other drug testing, reasonably required to do so by the person delegated to supervise him.

EX TEMPORE JUDGMENT

1 On 2 June 2012, the appellant, Garret John Grimshaw, was involved in an altercation with a woman with whom he had been in an intimate relationship for about seven years, and with whom he had three young children. The altercation took place outside a late night convenience store in Civic and Mr Grimshaw struck the woman, the complainant, in the face three times with his closed fist. The complainant fell to the ground hitting her head. She reported the assault the next morning to police at City Police Station. Mr Grimshaw was ultimately arrested and charged with an offence of assault occasioning actual bodily harm. Proceedings were adjourned a number of times.

2 On 29 April 2013, Mr Grimshaw appeared before the Magistrates Court and the prosecution proffered a fresh charge of common assault, to which Mr Grimshaw then pleaded guilty. The charge proceeded to sentence on 29 May 2013 and the charge of assault occasioning actual bodily harm was dismissed when the prosecution offered no evidence. After hearing submissions from the representatives of Mr Grimshaw and the prosecutor, the learned Magistrate sentenced Mr Grimshaw to ten months imprisonment, three months of which were to be served by full-time custody, three months by periodic detention, and the balance suspended and a two year good behaviour order was made.

3 Mr Grimshaw has appealed against the order. The grounds of the appeal, notice of which were clearly prepared by Mr Grimshaw himself, are a little confusing. The respondent is the informant, that is, the police officer assigned to the case. The respondent, though represented by the Director of Public Prosecutions, is not the Crown (cf Nikro v O'Sullivan [2013] ACTSC 129 at [2]).

4 The grounds in the Notice of Appeal are stated as follows:

I wish to change my plea to what I feel was an unjust decision by the prosecution not to adhere to certain conditions of a plea bargain. I feel I was not represented to a standard I expected, and I feel the penalty is too severe.

5 It appears that this is an appeal against conviction and sentence. The appeal against conviction is to be dealt with by withdrawal of the plea. As I said in Licciardello v McPherson [2012] ACTSC 31 at [6]–[8],‘[a] person who pleads guilty in the Magistrates Court may appeal against conviction.’

6 At the hearing of the appeal, however, Mr Grimshaw abandoned the appeal against conviction and only pursued the appeal against sentence. He did not continue with the ground which suggested incompetence of counsel (see R v Birks (1990) 48 A Crim R 385 at 391) but only the ground of severity of the penalty, that the penalty was manifestly excessive.

JURISDICTION

7 This Court has power under Pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.

8 I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.

9 The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

10 Specific errors may be errors of law, errors of fact, taking into account irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find a specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal, and re-impose the same sentence. Even if I cannot identify a specific error, I may uphold the appeal, and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust, or plainly wrong.

11 Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

THE PROCEEDINGS

Procedural history

12 It appears that, after his arrest, Mr Grimshaw was granted bail and the proceedings were adjourned from time to time. I do not have details of the adjournments or why they were sought or granted until 29 April 2013, which seems a long time after the arrest. On that day, however, it became clear that there had been discussions between the prosecution and Mr Grimshaw's then legal advisors and the fresh charge of common assault was proffered. Mr Grimshaw pleaded guilty to it, as I have referred to above (at [2]).

13 There was some argument on the appeal about whether the statement of facts was in evidence at the sentencing hearing. On the material I have before me I am satisfied that on that day, namely 29 April 2013, a statement of facts was tendered. It had been partly redacted and some manuscript additions made. I am satisfied that this meant that it was an agreed statement of facts.

14 Though tendered, it was not, as it would have been desirable to have been, marked as an exhibit. It was the evidence on which the court was being asked to proceed and therefore was important to be identified as having been admitted.

15 The proceedings were adjourned to 5 May 2013. The annotation by the learned Magistrate on that occasion showed that Mr Grimshaw was to be sentenced on the charge of assault, to which he had already pleaded guilty, and that the charge of assault occasioning actual bodily harm was to be discontinued. It is not clear why, when this was the public and announced position, and when Mr Grimshaw had already entered a plea of guilty to common assault which had been accepted by the court, the other charge was not then dismissed. It seems to me it should have been resolved in this way on that occasion.

16 In fact, it was not resolved until after Mr Grimshaw had been sentenced which led to the incorrect, but perhaps not entirely unexpected, view that Mr Grimshaw came to, that he had been sentenced as though that offence...