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…
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- AGLC
- DPP v Gerrard [2011] VSCA 200
- Case
- [2011] VSCA 200
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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