Clayton Gerstinmeier v The Queen

[2008] ACTCA 19

CLAYTON GERSTINMEIER v THE QUEEN
[2008] ACTCA 19 (11 November 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 48 - 2007
No. SCC 68 of 2007

Judges:        Higgins CJ, Penfold and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:           11 November 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 48 - 2007
  )          No. SCC 68 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CLAYTON GERSTINMEIER

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Penfold and Marshall JJ
Date:  11 November 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 48 - 2007
  )          No. SCC 68 of 2007
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CLAYTON GERSTINMEIER

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Penfold and Marshall JJ
Date:  11 November 2008
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is a fairly serious example of armed robbery.  As we indicated already, Mr Gerstinmeier’s record was certainly not one which would attract any leniency towards him. 

2. It is true that whilst on bail he had shown some signs of being ready for rehabilitation, and no doubt it is to be hoped that that continues, but in our view that prospect was adequately catered for by the non-parole period which was allowed of two years out of a head sentence of five.  A five year head sentence was well within the range for such an offence.  Indeed it could have been greater than that, and for that reason, it seems to us that the learned trial judge’s decision was not attended by error, and we dismiss the appeal.

   I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:    11 November 2008

Counsel for the Appellant:  Mr J Sabharwal
Solicitor for the Appellant:  Legal Aid Office (ACT)
Counsel for the Respondent:  Mr M Chilcott
Solicitor for the Respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  11 November 2008
Date of judgment:  11 November 2008