A man who had his conviction for a one-punch attack on a young Canberran set aside will take a fight against the remainder of his jail sentence to the High Court.
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Levi Freeman-Quay, 28, was sent back to jail after he won an appeal against his conviction for punching Matt Pridham to the ground on Bunda Street during a late-night brawl in Civic in September 2013.
Mr Pridham fell back and struck his head on concrete, spent months in hospital and suffered a permanent brain injury.
Last year, after a Supreme Court trial, Chief Justice Helen Murrell sentenced Freeman-Quay to two years and two months' imprisonment, with seven months to be served in custody for the offence of assault causing grievous bodily harm.
He was also sentenced to six months' jail for a second offence of assault occasioning actual bodily harm on one of Mr Pridham's friends that same night, with two months in custody.
His sentence was to be suspended after he spent nine months behind bars.
Freeman-Quay launched an appeal in the ACT Court of Appeal, which this month set aside his conviction for the more serious assault.
But the court dismissed an appeal against his sentence for the lesser offence and he was left to serve six months in prison, less two months and 21 days already spent in custody.
He had been on bail since late last year, until the appeal was heard, but was returned to prison to serve the remaining three months and nine days behind bars.
Now his lawyer, Michael Kukulies-Smith of Canberra firm Kamy Saeedi Law, is seeking permission to challenge part of the Court of Appeal's decision in the High Court.
Documents filed in the High Court this month argued the court's failure to properly re-sentence Freeman-Quay for the second assault had been a miscarriage of justice and stated the judges failed to accord procedural fairness.
"Having set aside the conviction in respect of count one, the court ought to have re-sentenced the applicant according to law. That obligation had to be exercised," the documents said.
"Further, it had to be exercised in light of the changed factual matrix that applied after the conviction appeal, in respect of count one, was upheld."
The documents stated Freeman-Quay's legal team had not been given the opportunity to make submissions on what would be a just and appropriate sentence for the less serious assault once the conviction for the more serious offence was quashed.
No reason had been given as to why Freeman-Quay needed to serve the remainder of his sentence behind bars, when the previous total sentence had involved a period of imprisonment that was suspended, the documents said.
Freeman-Quay's lawyers are seeking orders that special leave be granted and the appeal be upheld, his sentence be set aside and the matter be sent back to the Court of Appeal so he could be re-sentenced.
They have also filed an application for bail and for the rest of his sentence to be stayed, pending the outcome of that special leave application. Those matters will come before the court in early October.
Freeman-Quay is set for release in December.
