R v Gilson (No 3) - [2017] NSWSC 1670

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Gilson (No 3) [2017] NSWSC 1670
Hearing dates: 29 November 2017
Decision date: 01 December 2017
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Convicted of manslaughter.
Head sentence of imprisonment for eight years, with a non-parole period of five years, to date from 21 November 2014.

Catchwords: SENTENCE – manslaughter – offender found not guilty of murder but guilty of manslaughter after trial by jury – need for findings of fact to be consistent with the verdict of jury – manslaughter by excessive self-defence – intention to inflict grievous bodily harm at the time of fatal act – pre-existing intention to harm the deceased – otherwise unblemished character of offender – psychological problems arising from child sexual assault – instinctive synthesis of countervailing factors – sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)
Cases Cited: R v Ellis (1986) 6 NSWLR 603
R v Johnson (No 5) [2017] NSWSC 1169
R v Manevski (No 2) [2016] NSWSC 1465
R v Previtera (1997) 94 A Crim R 76
Regina v Oinonen [1999] NSWCCA 310
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Category: Sentence
Parties: Regina
Trudy Jane Gilson (Accused)
Representation:
Counsel:
R Herps (Crown)
P McGrath SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid (Accused)

File Number(s): 2014/00344391
Publication restriction: Nil

Remarks on sentence

Introduction

On Tuesday, 27 June 2017, Trudy Jane Gilson (also known as Sheiles, and to whom I shall usually refer in these remarks as the offender) was arraigned in the Supreme Court sitting at Port Macquarie before a jury panel and me. The indictment contained two counts. The first alleged that, on or about 21 November 2014 at Wauchope, she murdered Raymond Andrew Lynch (to whom I shall usually refer as the deceased). The second, alternative count alleged that, on or about the same date and at the same location, she committed the offence of manslaughter against the deceased.
Thereafter a trial by jury commenced immediately. On Tuesday 25 July 2017, after having been permitted by me to return a majority verdict, the jury brought the trial to its conclusion by returning a verdict of not guilty of murder, but guilty of manslaughter.
The proceedings on sentence were stood over until Wednesday, 29 November 2017 at Newcastle; that lengthy delay was occasioned by my own unavailability. I had the benefit of extensive written and oral submissions from each party on that occasion. And it now falls for me to sentence the offender today.

Fundamentals of approach

I have approached my task in accordance with the following fundamental principles.
First, it is not my role to seek to determine what facts the jury found; that would be impossible in any event. Rather, it is my role to find the objective and subjective facts, but I must always do so consistently with the verdict of the jury.
Secondly, facts adverse…

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 Gilson (No 3)

Details

AGLC: R v Gilson (No 3) [2017] NSWSC 1670
Case: [2017] NSWSC 1670
Decision Date: 01 December 2017

CaseChat Overview and Summary

In the case of R v Gilson, the offender, Gilson, was found not guilty of murder but guilty of manslaughter after a trial by jury. Gilson appealed against the sentence imposed by the Supreme Court of Queensland. The primary focus of the appeal was the need for the findings of fact to be consistent with the verdict of the jury, specifically regarding the circumstances of the manslaughter by excessive self-defence. The court was required to consider whether Gilson had the intention to inflict grievous bodily harm at the time of the fatal act and whether there was a pre-existing intention to harm the deceased. Additionally, the court had to weigh the otherwise unblemished character of Gilson and the psychological problems arising from child sexual assault in determining the appropriate sentence.

The court's reasoning involved an instinctive synthesis of the countervailing factors presented. It was established that the jury had found Gilson not guilty of murder, which was a critical factor in the sentencing. The court had to balance this with the findings of fact that showed Gilson's intention to inflict grievous bodily harm and the pre-existing intention to harm the deceased. The psychological issues stemming from the child sexual assault were also considered, alongside Gilson's otherwise unblemished character. The court concluded that the sentence imposed was appropriate, taking into account all these factors in a balanced and reasoned manner.

Ultimately, the court found that the sentence imposed was correct, as it had appropriately considered all the relevant factors in reaching its decision. The findings of fact were consistent with the jury's verdict, and the psychological and character considerations were adequately balanced. The appeal was dismissed, and the original sentence was upheld.

Orders