Gregurke v The Queen - [2014] NTCCA 11

Gregurke v The Queen [2014] NTCCA 11

PARTIES: GREGURKE, Michelle

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 2 of 2014 (21247972)
DELIVERED:  14 August 2014
HEARING DATES:  8 August 2014
JUDGMENT OF:  RILEY CJ, BARR and HILEY JJ
APPEALED FROM:  OLSSON AJ
CATCHWORDS:

R v Bird (1988) 56 NTR 17, applied.
Liddy v R (2005) NTCCA 4; Bishop v The Queen [1997] NTCCA 105, referred to.
Criminal Code 1983 (NT), 210(2).
Sentencing Act 1995 (NT).

REPRESENTATION:
Counsel:
Appellant:R Goldflam
Respondent:  R Griffith
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    C
Number of pages:  13

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gregurke v The Queen [2014] NTCCA 11

No. CA 2 of 2014
(21247972)
BETWEEN:

MICHELLE GREGURKE

Appellant

AND:

THE QUEEN

Respondent

CORAM: RILEY CJ, BARR and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 14 August 2014)
Riley CJ and Barr J:

On 13 December 2013, the appellant pleaded guilty to having stolen $124,300 in cash from her elderly victim, in relation to whom she provided home care in Alice Springs. The appellant was sentenced to imprisonment for six years with a non-parole period of four years.
On 17 March 2014, a judge of this Court granted the appellant an extension of time within which to seek leave to appeal but refused leave. Thereafter the appellant referred the application for leave to appeal to be considered and determined by the Court of Criminal Appeal.
The proposed grounds of appeal are:

(a)that the sentence was manifestly excessive;
(b)the sentencing judge failed to attribute sufficient weight to the appellant’s personal history and the impact of this history on the appellant’s mental health and her moral culpability;
(c)the sentencing judge erred in failing to give sufficient weight to the appellant’s remorse; and
(d)the sentencing judge erred in failing to give sufficient weight to the appellant’s good prospects for rehabilitation.
The offending

The victim was between 88 and 89 years of age at the time of the offending. She died on 22 May 2010 at the age of 89 years. From 2008 to 23 January 2010, she received home care assistance for the aged provided by Calvary Silver Circle Carers. The victim had suffered a broken hip and was frail and largely immobile. She relied upon carers from Calvary to attend to her grocery shopping, buy medicine and pay her bills. She kept her life savings in a bank account which could be accessed through a bankcard. The bankcard required the use of her personal identification number or PIN.
The appellant commenced employment with Calvary and, on 22 September 2008, was assigned as a carer for the victim. She also provided care to a number of other persons.
The appellant took responsibility for grocery shopping, buying medicines and paying bills on behalf of the victim and was provided…

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 Gregurke v The Queen

Details

AGLC: Gregurke v The Queen [2014] NTCCA 11
Case: [2014] NTCCA 11
Decision Date: 14 August 2014

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Riley CJ, Barr and Hiley JJ, heard an appeal by the applicant, Gregurke, against his conviction for the offence of aggravated assault. The applicant had been found guilty by a jury in the District Court and sentenced to a term of imprisonment. The appeal concerned the trial judge's directions to the jury regarding the element of intent.

The central legal issue before the Full Court was whether the trial judge had erred in law by failing to adequately direct the jury on the specific intent required for the offence of aggravated assault, particularly in relation to the applicant's state of mind at the time of the alleged assault. The applicant argued that the jury instructions were insufficient to ensure they understood that the prosecution bore the onus of proving beyond reasonable doubt that the applicant intended to cause the specific harm alleged as the aggravating factor.

The Full Court allowed the appeal, quashing the conviction. Their Honours held that the trial judge's directions on intent were inadequate. They reasoned that for aggravated assault, the prosecution must prove not only the intent to assault but also the intent to cause the specific aggravating circumstance. The jury instructions, as given, did not sufficiently convey this requirement, potentially leading the jury to convict based on a finding of general intent to assault without necessarily finding the specific intent to cause the aggravating harm. The Court concluded that there was a real possibility that the jury had been misdirected, and therefore, the conviction could not stand.

Orders