Regina v Gruber - [2002] NSWCCA 120

CITATION: REGINA v GRUBER [2002] NSWCCA 120

FILE NUMBER(S): CCA 60329/01

HEARING DATE(S): 20 March 2002

JUDGMENT DATE:
20 March 2002

PARTIES :

Regina
v
Robert Raymond Gruber

JUDGMENT OF: Adams J at 1; Smart AJ at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/0086

LOWER COURT JUDICIAL
OFFICER : Maguire DCJ

COUNSEL : H Dhanji (Applicant)
G E Smith (Crown)

SOLICITORS: D J Humphreys (Applicant)
S E O'Connor (Crown)

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Simpson [2001] NSWCCA 534

DECISION: Leave to appeal granted, appeal allowed, sentence quashed so far as the non-parole period is concerned and a non-parole period commencing on 2 January 2001 and ending on 1 April 2002 is substituted.

60329/01

ADAMS J
SMART AJ
WEDNESDAY 20 MARCH 2002

Regina v Robert Raymond GRUBER

Judgment

1 ADAMS J: On 28 May 2001, the applicant pleaded guilty in the District Court at Taree to two counts of assaulting a police officer in the execution of his duties. The offences were committed on 2 January 2001 at Wingham immediately prior to his arrest. He has been in custody since that date.

2 The applicant was sentenced to a term of one year and ten months’ imprisonment with a non-parole period of one year and five months in relation to the second count and a fixed term of twelve months in relation to the first count. The sentences commenced on 2 January 2001. The charges were brought under s 60(1) of the Crimes Act 1900, which provides a maximum penalty of five years’ imprisonment.

3 The applicant and his de facto wife Ms Spackman were visiting the latter’s parents at their house in Wingham for the Christmas holiday period. They were accompanied by their two young children. The applicant had a broken left ankle set in a cast from the knee to the toes. He has had a drinking problem for some time and, as appears to have been frequently the case, became argumentative and aggressive. He also gave evidence of becoming irrationally suspicious. The applicant and his wife argued over two days, in the course of which the applicant became increasingly abusive, threatening to kill his family and other family members, who eventually locked themselves inside the house and rang the police. The applicant was outside at this time shouting threats. The applicant then went to a nearby flat where Ms Spackman’s sister, Tracey, lived. Tracey, who had been called by her sister to the premises, went to her flat followed by her father who had armed himself with a jemmy. They found the applicant sitting inside watching television with an assortment of six or seven knives in the waistband of his trousers. An altercation occurred and the applicant stood up and pulled out a knife. Tracey knocked the knife out of his hand and ran back to the house. Whilst the family waited inside the applicant came up to the house, yelling and swearing and…

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 Regina v Gruber

Details

AGLC: Regina v Gruber [2002] NSWCCA 120
Case: [2002] NSWCCA 120
Decision Date: 20 March 2002

CaseChat Overview and Summary

The case of Regina v Gruber involved an appeal against the sentence imposed on Robert Raymond Gruber by the District Court at Taree. Gruber had pleaded guilty to two counts of assaulting a police officer in the execution of his duties, which occurred on 2 January 2001 at Wingham. Gruber was sentenced to a term of imprisonment with a non-parole period of one year and five months for the second count and a fixed term of twelve months for the first count. Gruber appealed the sentence, arguing that the non-parole period was manifestly excessive.

The legal issues the court was required to decide were whether the District Court had erred in its sentencing determination and whether the non-parole period was excessive. The court considered the evidence presented, including Gruber's psychiatric history and the effect of his medication on his mental stability. The court also noted Gruber's successful vocational training in prison and his intention to return to Victoria and live with his sister upon release.

The court found that the District Court had erred in its sentencing determination by not giving appropriate weight to Gruber's psychiatric condition and the effect of his medication on his mental stability. The court considered that Gruber's psychiatric history and the evidence of his improving mental state should have been taken into account when determining the non-parole period. The court found that the non-parole period was manifestly excessive and granted leave to appeal, allowed the appeal, quashed the sentence so far as the non-parole period was concerned and substituted a non-parole period commencing on 2 January 2001 and ending on 1 April 2002.

In conclusion, the Court allowed Gruber's appeal against his sentence and substituted a new non-parole period. The Court found that the District Court had erred in its sentencing determination by not giving appropriate weight to Gruber's psychiatric condition and the effect of his medication on his mental stability. The Court considered that Gruber's psychiatric history and the evidence of his improving mental state should have been taken into account when determining the non-parole period.

Orders