Lobsey v R - [2012] NSWCCA 239

Court of Criminal Appeal

New South Wales

Case Title: Gary Wayne Lobsey v R

Medium Neutral Citation: [2012] NSWCCA 239

Hearing Date(s): 24 October 2012

Decision Date: 21 November 2012

Jurisdiction:

Before: McClellan CJ at CL at [1]
Bellew J at [2]
Button J at [35]

Decision:
1.Extend time in which to file a notice of intention to seek leave to appeal;

2.Grant leave to appeal;

3.Dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal - robbery inflicting grievous bodily harm - significant injuries occasioned to elderly victim - whether description of sentencing judge that the offending was "vicious and cowardly" was open - lack of intent on the part of the applicant to inflict injury - previously lengthy criminal history - maximum penalty of 25 years imprisonment - sentence of 7 years imprisonment with a non-parole period of 5 years imposed -- whether sentence manifestly excessive

Legislation Cited: Crimes Act 1900

Cases Cited: Han v R [2009] NSWCCA 300
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520

Texts Cited:

Category: Principal judgment

Parties: Gary Wayne Lobsey - Applicant
Crown - Respondent

Representation

- Counsel: R Wilson - Applicant
J Pickering - Crown

- Solicitors: Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

File number(s): 2009/8133

Decision Under Appeal

- Court / Tribunal:

- Before: Coolahan DCJ

- Date of Decision: 20 August 2009

- Citation:

- Court File Number(s)

Publication Restriction: None

JUDGMENT

McCLELLAN CJ at CL: I agree with Bellew J.
BELLEW J: The applicant Gary Wayne Lobsey seeks leave to appeal against a sentence imposed in the Newcastle District Court on 20 August 2009 in respect of a charge of robbery inflicting grievous bodily harm pursuant to s 96 of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment.
The applicant also seeks an extension of time within which to file the notice of intention to seek leave to appeal. That application is not opposed by the Crown.

THE FACTS

A statement of agreed facts was before the sentencing judge. The facts can be summarised as follows.
At about 1pm on New Years Day 2009, Audrey Clarke ("the victim") who was then 73 years of age, was about to enter a vehicle belonging to her sister which was parked in the car park of the Woolworths supermarket at Mayfield. At the time, the victim and her sister had just completed their grocery shopping.
As the victim was about to get into the vehicle, with her handbag over her right shoulder, the applicant pulled her bag from behind. As she was pulled backwards she resisted, but the force exerted by the applicant was such as to cause her to fall heavily to the ground. As she hit the ground, she felt immediate pain in the region of her left hip and left arm but nevertheless kept hold of the bag. Despite the victim's resistance, the applicant continued to pull…

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 Lobsey v R

Details

AGLC: Lobsey v R [2012] NSWCCA 239
Case: [2012] NSWCCA 239
Decision Date: 21 November 2012

CaseChat Overview and Summary

The appellant, Lobsey, was convicted of robbery while inflicting grievous bodily harm on an elderly victim. He appealed the sentence imposed by the sentencing judge, arguing it was manifestly excessive. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The primary issue before the court was whether the sentencing judge's characterisation of the offending as "vicious and cowardly" was open, given the appellant's lack of intent to inflict injury and the maximum penalty for the offence being 25 years imprisonment. Additionally, the court had to determine whether the sentence of 7 years imprisonment, with a non-parole period of 5 years, was manifestly excessive.

The court considered the appellant's lengthy criminal history, the significant injuries inflicted on the elderly victim, and the lack of remorse shown by the appellant. The court concluded that the sentencing judge's characterisation of the offending as "vicious and cowardly" was open, as the appellant's actions were premeditated and targeted an elderly and vulnerable victim. The court also noted that the appellant's criminal history was relevant to the assessment of the appropriate sentence. The court rejected the argument that the sentence was manifestly excessive, finding that it was within the range of appropriate sentences for the offence and took into account the appellant's criminal history and the need for general deterrence. The appeal was dismissed.

The court did not make any orders as a result of the appeal.

Orders