Posted on by Stephen Tuck

Graeske v R (2015) H&FLR 2015-36

Joshua Graeske v The Queen (2015) H&FLR 2015-36

Court of Appeal of Victoria

28 August 2015

Coram: Maxwell P and Whelan JA

Appearing for the Appellant: Ms CA Boston and Mr A Imrie (instructed by Melasecca Kelly & Zayler)
Appearing for the Respondent: Ms D Piekusis (instructed by Ms V Anscombe, Acting Solicitor for Public Prosecutions)

Catchwords: Australia – Victoria – Australian football – assault – sentencing.

Facts: On 14 July 2012 the defendant (then aged 21) was playing football in an amateur match.  During the match he pulled an opponent to the ground and punched him a number of times, causing significant facial injuries.  He was charged with recklessly causing serious injury (Crimes Act 1958, §17).

The defendant pleaded guilty to the charge and was sentenced to be imprisoned for three years, to serve a minimum of two years: DPP v Graeske (County Court of Victoria, Judge Wischusen, 7 November 2014, unreported).  During the course of the hearing the Sentencing Amendment (Emergency Workers) Act 2014 commenced, the effect of which was (in part) to allow terms of imprisonment to be combined with community corrections orders. Due to an apparent oversight, neither the prosecution nor the defence addressed these amendments in their submissions to the court.

The defendant appealed against the sentence imposed.

Held: Allowing the appeal, setting aside the original sentence and re-sentencing the appellant, that –

1. Because no submissions were made in light of the Sentencing Amendment (Emergency Workers) Act 2014, the trial judge inevitably misdirected himself as to the available sentencing options.

2. Noting the appellant’s youth, difficult personal history and other factors, a sentence of imprisonment for one year followed by a community corrections order of three years (geared to address the appellant’s mental health and drug problems) was appropriate

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Marks and Johnson v Scottsdale Ins. Co. (2015) H&FLR 2015-35

Danny Ray Marks and Timothy B Johnson v Scottsdale Insurance Company (2015) H&FLR 2015-35

United States Court of Appeals (Fourth Circuit)

29 June 2015

Coram: Hamilton, Sen. Cir. J.; Gregory and Harris, Cir. JJ.

Appearing for the Appellant (Marks): John Janney Rasmussen (of Insurance Recovery Law Group).
No appearance for the Plaintiff (Johnson).
Appearing for the Appellee: Mr John Becker Mumford (of Hancock, Daniel, Johnson & Nagle)

Catchwords: Virginia – insurance law – coverage – hunting – hunt club – members – vicarious liability.

Facts: Mr Johnson was a member of the Northumberland Hunt Club.  On 3 January 2013 he was hunting on land leased by the club which was adjacent to a roadway.  He fired a shot which struck and injured Mr Marks, a passing motorist.

Marks commenced proceedings in negligence against Johnson and the Club in a Virginia court.  He issued separate proceedings against the Scottsdale, seeking a declaration that that company was obliged to defendant and indemnify Johnson. The relevant insurance company covered the Club and “any of [its] members, but only with respect to their liability for [the Club’s] activities or activities they perform on [the Club’s] behalf”.

Scottsdale successfully aplied to transfer the matter to a federal court, which found that Scottsdale was not obliged to defend or indemnify Johnson: Marks and Johnson v Scottsdale Ins. Co. (US Dist. Ct for E.D. Va, Novak Mag.J., 30 July 2014, unreported).  Mr Marks appealed.

Held: Dismissing the appeal,that –

1. Virginia law requires the contract’s words to be given their “ordinary and customary meaning”.

Salzi v Va Farm Bureau Mut. Ins. Co, 556 SE.2d 758 (Va. 2002), followed.

2. Coverage of liability for “the Club’s activities” restricts coverage to the member’s vicarious liability for activities the club as an entity undertakes (for example, entering contracts or buying or selling property).  Members are however not covered with respect to their actions “during in connection with the club’s activities”.  In this case, no facts were alleged against Johnson which (if proved)would render Scottsdale liable to defend or indemnify him.

Lenox v Scottsdale Ins. Co. (US Dist Ct for Dist of NJ, Chesler Mag.J., 5 May 2005, unreported); CACI International Inc v St Paul Fire and Marine Ins. Co., 566 F.3d 150 (4th Cir., 2009), followed.

Judgment

The Court’s judgment is available here.