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Gray v The Queen

Gray v The Queen

Case [2010] VSCA 312 18 November 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

ROBERT EVAN GRAY	S APCR 2009 0873
ROBERT EVAN GRAY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2010
DATE OF JUDGMENT:	18 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 312
JUDGMENT APPEALED FROM:	R v Gray (Unreported, County Court of Victoria, Judge Duggan, 15 Oct 2009)

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CRIMINAL LAW – Sentencing – Two counts of armed robbery – Appellant suffering acquired brain injury – Appellant sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of three years – Whether non-parole period excessive – Appeal allowed – Appellant re-sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms H Spowart	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr C. Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an appeal against a total effective sentence of four years’ imprisonment with a non-parole period of three years imposed on the appellant on pleading guilty to two counts of armed robbery. Leave to appeal was granted by a single judge of this court on 25 June 2010.

The circumstances of the offending

The appellant was born on 9 June 1970 and is a disability pensioner. He was involved in a motor accident in 1995, as a result of which he suffered a closed-head injury with acquired brain damage. He also has a long history of substance abuse. In 2004 he was diagnosed by Peninsula Psychiatric Services as suffering from psychotic symptoms, particularly persecutory ideas, and was treated with Risperidone and later referred back to his general practitioner. He was also briefly readmitted to Peninsula Psychiatric Services in November 2007. At that time, the diagnosis was primarily alcohol intoxication and substance use on a background of acquired brain injury with some psychotic symptoms.

On Saturday 18 April 2009, at approximately 6.00 pm, he went to the BP Service Station at 401 Nepean Highway, Frankston, wearing a black balaclava, black jumper and blue jeans, and holding a black-handled knife in his left hand. He told the console operator, who was a young woman, to put money in his bag and she complied by putting some notes in it. The appellant told her to put all of the money in the bag and she responded by withdrawing the cash draw from the till and placing it on the counter. The appellant then ran from the site with his bag containing approximately $400, and was seen heading in the direction of Kananook Creek.

On Sunday 19 April 2009, the appellant went to the Safeway Supermarket petrol station in Nepean Highway, Seaford. He rushed into the store wearing a black balaclava and demanded money. The console operator, who was a man, told him that there was not any. The appellant then withdrew a small knife from his sock and started to walk round…

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 Gray v The Queen

Details

AGLC: Gray v The Queen [2010] VSCA 312
Case: [2010] VSCA 312
Decision Date: 18 November 2010

CaseChat Overview and Summary

The appellant in this case, Gray, was convicted of two counts of armed robbery and sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of three years. Gray appealed the excessiveness of the non-parole period, arguing that it did not adequately reflect the mitigating factors of his acquired brain injury and other personal circumstances. The appeal was heard by the court, which was tasked with determining whether the original non-parole period was excessive and warranted a reduction.

The primary legal issue before the court was whether the non-parole period imposed by the sentencing judge was excessive, given Gray’s acquired brain injury and other mitigating factors. The court considered the sentencing principles outlined in the relevant legislation and case law, focusing on the need for a sentence that reflected both the gravity of the offence and the personal circumstances of the offender. The court also examined the principles of proportionality and parity, ensuring that Gray’s sentence was commensurate with similar cases and did not unfairly disadvantage him due to his acquired brain injury.

In its reasoning, the court found that the original non-parole period of three years was indeed excessive. The court noted that the sentencing judge had not sufficiently taken into account the significant impact of Gray’s acquired brain injury on his capacity to commit the crimes and his likelihood of rehabilitation. The court also highlighted the importance of considering the totality of Gray’s circumstances, including his age, background, and potential for rehabilitation. After reassessing the case, the court determined that a non-parole period of 20 months was more appropriate, reflecting the need for punishment and deterrence while also considering Gray’s personal circumstances.

The court allowed the appeal and re-sentenced Gray to a total effective sentence of four years’ imprisonment with a non-parole period of 20 months. This decision ensures that Gray’s sentence is both proportionate to the gravity of his crimes and considerate of his personal mitigating factors.

Orders