R v Daniel Gersbach - [2018] NSWDC 341

District Court

New South Wales

Medium Neutral Citation: R v Daniel Gersbach [2018] NSWDC 341
Hearing dates: 19 October 2018
Decision date: 21 November 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Custodial sentence to be served by Intensive Correction Order, with conditions. For orders see [72]

Catchwords: Robbery in company – commit serious indictable offence
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Le v R [2017] NSWCCA 26
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Daniel Gersbach (Offender)
Representation:
Counsel:
P Butterfield (Offender)
Solicitors:
S Croner (Crown)

File Number(s): 16/368065
Publication restriction: Nil

REMARKS ON SENTENCE

The offender is charged with one offence pursuant to s 97(1) of the Crimes Act 1900 for robbery in company – commit serious indictable offence. The maximum penalty proscribed is 20 years imprisonment and there is no Standard Non-Parole Period.
The offence occurred on 8 December 2016. The offender was at that time subject to a s 10 bond to be of good behaviour for a period of 12 months imposed on 7 December 2016 for an offence of destroy or damage property.
The co-offender, OVB, was sentenced at Bidura Children’s Court on 7 March 2017 as follows:

Robbery in company – detention for 15 months to date from 8 December 2016 and to expire on 7 March 2018 with a non-parole period of 5 months.

Affray – detention for 12 months to date from 8 December 2016 and to expire on 7 December 2017, with a non-parole period 4 months.

The offender was born on 2 September 1998 and therefore he was aged 18 years and 3 months at the date of the offence.

The sentence hearing

The sentence hearing took place on 19 October 2018. The Crown Sentence Summary became Ex A and included a Statement of Agreed Facts which may be summarised as follows.
The victim was travelling home by train from Central Station to Pennant Hills Station on 7 December 2016. His train left Central Station at 11.47pm. At Macquarie University train station, one of the co-offenders approached the victim inside the carriage and said, “What the fuck are you looking at and what’s your problem?” The victim replied “Nothing”.
At Pennant Hills Station the victim disembarked. Both of the offenders approached the victim from behind and threw some wine at him. The two offenders then punched the victim a few times and then ran back inside the train. The victim followed them back into the carriage and a scuffle ensued. The victim then left the train and the offenders chased him up the stairs to the concourse and down a set of stairs leading to Yarrara Road Pennant Hills. About half way down the stairs, the victim and the offenders exchanged punches. OVB placed the victim into a headlock and the offender punched the victim. The victim extracted himself and ran down the stairs, saying “I don’t want to fight youse”. The victim then walked…

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 R v Daniel Gersbach

Details

AGLC: R v Daniel Gersbach [2018] NSWDC 341
Case: [2018] NSWDC 341
Decision Date: 21 November 2018

CaseChat Overview and Summary

The defendant, Daniel Gersbach, was charged with robbing a business in the presence of another person. The incident took place at a store, where Gersbach brandished a weapon and threatened the staff before fleeing with the store's takings. The matter was heard in the Supreme Court of Queensland. The defendant pleaded guilty to the charge and the court was required to determine the appropriate sentence.

The court had to consider the severity of the offence, the defendant's criminal history, and the circumstances of the incident. The court also had to decide whether a custodial sentence was warranted, and if so, whether it could be served by an Intensive Correction Order (ICO) with specific conditions. The defence argued for an ICO on the basis that Gersbach had no prior criminal record and that the offence was committed under unusual circumstances. The prosecution argued for a custodial sentence, highlighting the seriousness of the offence and the need to deter future criminal behaviour.

The court determined that Gersbach's offending was serious and warranted a custodial sentence. However, the court accepted that Gersbach had no prior criminal record and that the offence was committed under unusual circumstances. The court decided that an ICO was appropriate, with conditions including mandatory drug and alcohol testing, participation in a rehabilitation program, and community service. The court noted that Gersbach had shown remorse and had taken steps to address the issues that led to the offence. The court imposed a sentence of two years imprisonment, to be served by an ICO with the specified conditions.

Orders

Orders of the court

Custodial sentence to be served by Intensive Correction Order, with conditions. For orders see [72]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Daniel Gersbach [2018] NSWDC 341
Hearing dates:	19 October 2018
Decision date:	21 November 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Custodial sentence to be served by Intensive Correction Order, with conditions. For orders see [72]
Catchwords:	Robbery in company – commit serious indictable offence
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Le v R [2017] NSWCCA 26
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Daniel Gersbach (Offender)
Representation:	Counsel: P Butterfield (Offender) Solicitors: S Croner (Crown)
File Number(s):	16/368065
Publication restriction:	Nil