A man convicted of assaulting a woman has been released from prison after the Supreme Court ruled the injuries did not amount to “grievous bodily harm”.

Colin Menzies, 46, from Southampton, was tried in Magistrates’ Court for assaulting Joanna Hassell and causing grievous bodily harm on December 18, 2013, causing a fractured arm.

Menzies admitted kicking the complainant, but claimed he believed he was being attacked and did not know the “intruder” was actually his romantic partner. However, Magistrate Khamisi Tokunbo rejected the claim of mistaken identity, convicting him of the offence. Menzies was subsequently sentenced to six months in prison.

After his conviction, Menzies launched, abandoned and later relaunched appeals against his conviction on a number of grounds.

During an appeal hearing on June 23, defence lawyer Auralee Cassidy argued that Magistrate Khamisi Tokunbo had erred by not finding that Menzies was acting in self-defence. She also argued that the conviction was unsafe because the evidence did not support the charge of “grievous bodily harm”.

In a judgment, dated June 26, Chief Justice Ian Kawaley dismissed the first ground of appeal, saying that Mr Tokunbo clearly found that a mistake-based defence did not arise in the circumstances of the case. However, Mr Justice Kawaley noted another case in which more serious injuries fell short of the threshold for grievous bodily harm, although they clearly fall under the category of actual bodily harm.

He wrote: “This ground of appeal succeeds and the conviction recorded in the Magistrates’ Court is liable to be set aside on the grounds that a substantial miscarriage of justice has occurred.

“What was admittedly proved was the offence of assault occasioning bodily harm and that is the conviction which I substitute for the offence of grievous bodily harm for which the Appellant was originally convicted.”

While prosecutor Nicole Smith argued that the six-month sentence should stand, Ms Cassidy argued that it would be an affront to justice not to reduce the sentence given the lesser conviction, suggesting a non-custodial sentence might be appropriate.

Mr Justice Kawaley found that Menzies had a previous clean record, and that the evidence before the court suggested the incident was “out of character and attributable to a momentary loss of self-control under trying circumstances”, but called the idea of a non-custodial sentence “unrealistic”.

He wrote: “In my judgment the Appellant is in no position today, having delayed his sentencing, abandoned and restored his appeal against conviction and succeeding only in securing a conviction for a lesser offence, to obtain as dramatic an alteration of his sentence as his counsel tenaciously sought on his behalf.

“In my judgment the appropriate sentence for the lesser offence of which the appellant now stands convicted is in the region of four months imprisonment, a proportionate reduction of sentence based upon the difference in maximums between the more and less serious offences. This would reflect the sentence he would likely have received in the Magistrates’ Court had he been convicted of assault occasioning actual bodily harm in the first instance.

“Although he was sentenced to six months’ imprisonment on April 2, 2015, I was told that his likely release date is presently August 1, 2015, an actual term of four months. Had he been sentenced from the outset to four months imprisonment, he would now most likely be already eligible for release.

“Accordingly, I quash the sentence of six months imprisonment and substitute such sentence as will result in the appellant’s immediate release from prison.”

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