Ersman v Regina - [2007] NSWCCA 161

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Ersman v Regina [2007] NSWCCA 161

FILE NUMBER(S):
2007/612

HEARING DATE(S): 22 May 2007

JUDGMENT DATE: 19 June 2007

PARTIES:
John Ersman v Regina

JUDGMENT OF: McClellan CJ at CL Hislop J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3072

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 22/09/06

COUNSEL:
(A) R Burgess
(C) D Woodburn

SOLICITORS:
(A) S O'Connor (LAC)
(C) S Kavanagh

CATCHWORDS:
Criminal Law - Sentencing - Armed robbery with offensive weapon - serious offence but offender very limited in skills and with poor judgment - long standing deficiencies - sentence manifestly excessive - parity - co-offenders sentenced in Children's Court to inadequate sentences - lack of due proportion and relativity in sentences

LEGISLATION CITED:
Crimes Act 1900
Children (Criminal Proceedings) Act

CASES CITED:
Broad unrep. NSWCCA 13/3/84
R v Henry (1999) 46 NSWLR
Lowe v The Queen (1984) 154 CLR
Postiglione v The Queen (1997) 189 CLR
R v Boney [2001] NSWCCA 432
R v Coghlan [1999] NSWCCA 292
R v Diamond NSWCCA 18/2/1993
R v Govinden 106 A Crim R

DECISION:
Sentence below quashed. Applicant re-sentenced. See para 84.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/612
McCLELLAN CJ at CL
HISLOP J
SMART AJ
Tuesday, 19 June 2007
John ERSMAN v Regina

JUDGMENT

PROHIBITION : No material may be published which would tend to identify the two juveniles.

McCLELLAN CJ at CL: I agree with Smart AJ

HISLOP J: I agree with Smart AJ.

SMART AJ: John Ersman seeks leave to appeal against a sentence of imprisonment comprising a non-parole period of 3 years commencing 12 January 2006 and a balance of term of 3 years expiring on 11 January 2012 for the offence of robbery whilst armed with an offensive weapon (s 97(1) of the Crimes Act 1900). The maximum penalty for that offence is 20 years imprisonment. The applicant pleaded guilty in the Local Court and adhered to his plea in the District Court. The offence took place on 24 August 2005. Three persons were involved and the judge proceeded on the basis of a common enterprise. Two co-offenders were dealt with in the Children’s Court for this offence. N, aged 14 was sentenced on 2 December 2005 to a control Order of 12 months with a non-parole period of 2 months. D, aged 17 years, was sentenced on 13 February 2006 to a suspended control Order of 7 months with a non-parole period of 3 months. The applicant was born on 18 June 1986 and was thus 19 at the time of the offence but importantly functions on a day-to-day basis as borderline disabled and is maladjusted.

There was an agreed statement of facts but that does not identify the role played by each offender.

About midnight on 24 August 2005 SD, a 44 year old lady who had completed her shift at an aged care facility, alighted from the train at Warwick Farm Railway Station.…

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 Ersman v Regina

Details

AGLC: Ersman v Regina [2007] NSWCCA 161
Case: [2007] NSWCCA 161
Decision Date: 19 June 2007

CaseChat Overview and Summary

The case before the court involved Ersman, the appellant, who was convicted of armed robbery with an offensive weapon. The issue at hand was the sentencing of Ersman, considering the gravity of the offence but also his limited skills and poor judgment, compounded by long-standing deficiencies. The case was heard in the court of appeal, where the primary concern was whether the sentence imposed was manifestly excessive. Additionally, the court needed to address the matter of parity, especially considering that co-offenders had been sentenced in the Children's Court to sentences deemed inadequate. This raised questions about the lack of due proportion and relativity in the sentences handed down.

The legal issues before the court revolved around the principles of sentencing in criminal law, particularly in cases of armed robbery. The court had to balance the severity of the crime with the personal circumstances of the offender, including his limited capabilities and judgment. The court also needed to ensure that the principle of parity was upheld, meaning that sentences should be proportionate not only within the same court but also across different courts. Furthermore, the court had to consider whether the sentences imposed on the co-offenders were adequate and whether this disparity affected the fairness of the appellant's sentence.

The court found that the sentence imposed on Ersman was manifestly excessive, taking into account his personal circumstances and the sentences handed down to his co-offenders. The court determined that the lack of due proportion and relativity in the sentences was a significant issue. The appeal was allowed, and the case was remitted to the sentencing court to reconsider the sentence in light of the court's findings. The court emphasised the importance of ensuring that sentences reflect the principles of proportionality and relativity, both within and across different courts.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the case be remitted to the sentencing court for reconsideration of the sentence. The court stressed the need for sentences to be proportionate and to reflect the unique circumstances of each offender, as well as the need for consistency and fairness in sentencing across different courts.

Orders