Ashley Gerbing v The Queen - [2015] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0080

ASHLEY GERBING	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0087

BRADLEY ROBERT CROUGHAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2015
DATE OF JUDGMENT:	12 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 209
JUDGMENT APPEALED FROM:	DPP v Croughan (Unreported, County Court of Victoria, Judge Jordan, 30 March 2015)

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CRIMINAL LAW – Sentence – Applications for leave to appeal – Applicants charged with robbery and armed robbery respectively – Complainant an 18 year old school girl waiting for her bus – Soft target – Applicants with prior criminal histories – General deterrence – Specific deterrence – Application of Verdins principles in respect of one applicant – Totality considerations in respect of other applicant – Not reasonably arguable that robbery sentence of 18 months with non-parole period of 12 months was excessive – Not reasonably arguable that armed robbery sentence of 4 years and 6 months with non-parole period of 3 years was excessive – Errors contended for by applicants not reasonably arguable – Applications for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Mr Gerbing	Mr J E McLoughlin	Victoria Legal Aid
For the Applicant, Mr Croughan	Mr D N McGlone	Melinda Walker Lawyer
For the Respondent	Mr R L Gibson	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

I agree with Beach JA.

BEACH JA:

Introduction

On 30 May 2013, the applicants, Ashley Gerbing and Bradley Robert Croughan, robbed a schoolgirl who was waiting for a bus to take her to school. On 20 February 2015, Croughan was found guilty by a jury of one charge of armed robbery. He pleaded guilty to the related charge of theft. On 23 March 2015, Gerbing pleaded guilty to a charge of robbery. Following a plea hearing on 23 March 2015, the applicants were sentenced, on 30 March 2015, as follows:

Applicant Gerbing

Charge on Indictment Offence Maximum Sentence Cumulation

1
Robbery

[Crimes Act 1958 s 75(1)]
15 years
[Crimes Act 1958 s 75(2)] 18 months N/A

Total Effective Sentence: 18 months

Non-Parole Period: 12 months

Pre-sentence Detention Declared: 7 days

6AAA Statement: 2 years 6 months with a non-parole period of 18 months

Other orders: Forensic sample order, $450 compensation order

Applicant Croughan

Charge on Indictment Offence Maximum Sentence Cumulation

1 Armed robbery [Crimes Act 1958 s 75A(1)] 25 years
[Crimes Act 1958 s 75A(2)] 4 years 6 months Concurrent

2
Theft

[Crimes Act 1958 s 74(1)]
10 years
[Crimes Act 1958 s 74(1)] 4 years 6 months Concurrent

Total Effective Sentence: 4 years 6 months

Non-Parole Period: 3 years

Pre-sentence Detention Declared: 143 days

6AAA Statement: N/A

Other orders: $450 compensation order

Gerbing now seeks leave to appeal against his sentence on the following grounds:

1.The sentencing judge erred in holding that deterrence is the dominant purpose of sentencing for robbery offences.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashley Gerbing v The Queen

Details

AGLC: Ashley Gerbing v The Queen [2015] VSCA 209
Case: [2015] VSCA 209
Decision Date: 12 August 2015

CaseChat Overview and Summary

In the case of Ashley Gerbing v The Queen, the applicants were contesting their sentences for robbery and armed robbery respectively. The incident involved an 18-year-old schoolgirl who was waiting for her bus and was targeted due to her perceived vulnerability. Both applicants had significant prior criminal records. The applicants sought leave to appeal their sentences, arguing that the sentences imposed were excessive.

The primary legal issues for the court to address were whether the sentences were so excessive as to warrant leave to appeal and whether any errors contended for by the applicants were reasonably arguable. The court had to consider the principles of general and specific deterrence, as well as the totality principle in the context of sentencing. The court also considered the Verdins principles, specifically in relation to one of the applicants.

The court held that the sentence of 18 months imprisonment with a non-parole period of 12 months for the robbery charge was not excessive. Similarly, the sentence of 4 years and 6 months with a non-parole period of 3 years for the armed robbery charge was deemed not excessive. The court found that the applicants' contentions regarding the sentences were not reasonably arguable. Consequently, the applications for leave to appeal were refused. The court's decision was based on a detailed analysis of the sentencing principles and the specific circumstances of the case, affirming the appropriateness of the sentences imposed.

Orders