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
The Court’s judgment is available here.