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DPP v Gerrard

DPP v Gerrard

Case [2011] VSCA 200 30 June 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 57 of 2011

DIRECTOR OF PUBLIC PROSECUTIONS
	v
PAUL WAYNE GERRARD

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JUDGES	NEAVE, REDLICH and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 June 2011
DATE OF JUDGMENT	30 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 200
JUDGMENT APPEALED FROM	R v Gerrard (Unreported, County Court, Judge Dean, 4 March 2011)

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CRIMINAL LAW – Director’s appeal – Intentionally causing serious injury – Glassing –Sentence of 2 years’ imprisonment, wholly suspended for three years – Insufficient weight given to seriousness of offence – Winch v The Queen [2010] VSCA 141, applied – Improper reliance on R v Verdins (2007) 16 VR 269 – Insufficient evidence of link between appellant’s mental health problems and offending – Decision to suspend sentence partly based on irrelevant considerations – Sentence manifestly inadequate – Appeal allowed – Early guilty plea – Offence provoked by prior violent assault – Increased burden of imprisonment – Very exceptional combination of circumstances – Markovic v The Queen [2010] VSCA 105, applied – Family hardship – De facto partner profoundly deaf and dependent on respondent – Young son suffering from autism – Assistance from relatives unavailable – Respondent re-sentenced to 3 years’ imprisonment, wholly suspended for 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms A Forrester	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Mr G F Meredith	Greg Thomas

NEAVE JA:

The respondent, Paul Wayne Gerrard, pleaded guilty in the County Court to a count of intentionally causing serious injury. On 4 March 2011, Mr Gerrard was sentenced to 2 years’ imprisonment. The learned sentencing judge directed that the sentence be wholly suspended for a period of 3 years.

The Director now appeals against the sentence on the following five grounds:

(1)The sentence imposed, and the direction to wholly suspend such sentence for a period of three years, is manifestly inadequate in all the circumstances.
(2)The sentencing judge erred in failing to first determine an appropriate sentence for the offending in light of all the aggravating and mitigating features, including, in particular, the plea of guilty, and only then to determine whether it was open or appropriate to suspend the sentence of imprisonment.
(3)It was not open on the evidence for the sentencing judge to find that:
(a) the complainant had played no role in the proceeding;[1]
[1]This factor was not listed in the Notice of Appeal, but was listed in the Director’s Written Case.
(b)the offending was the result of the Respondent’s psychiatric and psychological disabilities;
(c)the Respondent had abstained from alcohol since the commission of the offence;
(d)the Respondent was of low intelligence;
(e)the likely effect of imprisonment upon the Respondent’s mental health if he were to be imprisoned immediately would be significant;
(f)the behaviour of the complainant’s wife preceding the offence was manipulative.

(4)As a matter of law, the sentencing judge erred in finding that the following factors constituted ‘exceptional circumstances’ within the meaning…

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 DPP v Gerrard

Details

AGLC: DPP v Gerrard [2011] VSCA 200
Case: [2011] VSCA 200
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Gerrard, the Court of Appeal was tasked with reviewing the sentence imposed on the appellant following a conviction for intentionally causing serious injury to another person. The appeal centred on the sufficiency and appropriateness of the sentence, which had been handed down by a lower court, where the appellant was sentenced to two years’ imprisonment, wholly suspended for three years. The Director of Public Prosecutions argued that the sentence was manifestly inadequate given the gravity of the offence and the appellant's role in provoking the incident.

The central legal issue before the court was whether the sentence was inadequate in light of the appellant's role in provoking the victim to assault him, which resulted in the victim being glassed. The court considered whether the lower court had properly balanced the relevant aggravating and mitigating factors in arriving at the sentence. The court found that the lower court had given insufficient weight to the seriousness of the offence and had improperly relied on certain mitigating factors, particularly those related to the appellant's mental health, which were not adequately supported by evidence. The court held that the lower court had also failed to give sufficient consideration to the impact of the sentence on the appellant's family, including his profoundly deaf de facto partner and their young son with autism.

In its judgment, the Court of Appeal held that the sentence was manifestly inadequate and set it aside. The court considered the appellant's early guilty plea and the fact that the incident was provoked by a prior violent assault by the victim. However, it found that these factors did not outweigh the gravity of the appellant's actions in the incident. The court noted that the appellant had a history of violent offending and that the sentence did not adequately reflect the seriousness of the offence. The court re-sentenced the appellant to three years’ imprisonment, wholly suspended for three years, taking into account the exceptional family circumstances but emphasising the need for a sentence that reflected the gravity of the offence. The appeal was allowed, and the re-sentence was substituted in place of the original sentence.

Orders