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Geros v R

Geros v R

Case [2011] NZCA 122 31 March 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA321/2010
[2011] NZCA 122

BETWEEN MARCELL SYDNEY GEROS
Appellant

AND THE QUEEN
Respondent

Hearing: 3 March 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: W C Pyke for Appellant
B D Tantrum and M R Walker for Respondent

Judgment: 31 March 2011 at 3 pm

JUDGMENT OF THE COURT

A An extension of time for appealing is granted.

B The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Beating up a 73 year old

During the evening of 18 December 2008 and into the early hours of the next day, Marcell Geros, the appellant, drank heavily at his cousin’s house in Kaitaia. After the cousin went to bed at approximately 3 am, Mr Geros left the house and went to the neighbouring property. He entered that property through an unlocked ranchslider door. Two men were asleep inside: Alexander Cameron, aged 73, and his brother, John. Mr Geros was holding a small torch, which he used to help him search the house for items to steal. He shone the torch on Alexander Cameron as he slept. Alexander woke with the light. Mr Geros feared that Alexander would recognise him. So he resolved to beat him up. He punched Alexander repeatedly on the head and grabbed him around the throat. Alexander was unable to defend himself.
Mr Geros then fled, leaving Alexander on his bed in a semi-conscious state. John woke up with the commotion. He went in to Alexander’s room and found him with blood gushing from his nose and mouth. John immediately called an ambulance.
An ambulance quickly came. While the ambulance officers were attending to Alexander, Mr Geros went to the ambulance and stole from it a medical bag containing essential supplies and IV equipment. He also took a nurse’s personal bag containing high visibility vests and a watch.
A little later, Mr Geros went to another neighbouring property and stole a motorbike from a shed.
Alexander Cameron suffered severe injuries. He sustained fractures to his face, swelling to his face and eye, cuts to his face and neck and bruising to his body. Following the attack he was no longer able to look after himself, as he had done prior to it.
Mr Geros was charged with wounding with intent to cause grievous bodily harm, burglary and theft (two charges). Eventually he pleaded guilty to these charges. Judge de Ridder sentenced him to seven years three months’ imprisonment.[1]
[1] R v Geros DC Kaitaia CRI-2009-029-1127, 5 November 2009 (“Sentencing notes”).
Mr Geros has appealed on the basis that the sentence is manifestly excessive. He was late in filing his appeal, but the Crown does not oppose his being granted an extension of time for appealing. Accordingly, we grant that extension.

Was the sentence manifestly excessive?

Judge de Ridder reached his end sentence of seven years three months’ imprisonment in the following way. First, he took the wounding charge as the most serious. He correctly identified R v…

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 Geros v R

Details

AGLC: Geros v R [2011] NZCA 122
Case: [2011] NZCA 122
Decision Date: 31 March 2011

CaseChat Overview and Summary

Marcell Sydney Geros appealed against his sentence for a series of violent and criminal acts committed against Alexander Cameron and others in Kaitaia. Geros entered a neighbouring property through an unlocked door, assaulted the 73-year-old victim while he slept, and subsequently stole from an ambulance and a motorbike. Geros pleaded guilty to charges of wounding with intent to cause grievous bodily harm, burglary, and theft. The sentencing judge, Judge de Ridder, sentenced Geros to seven years and three months' imprisonment, which Geros argued was manifestly excessive. The appeal was considered by the New Zealand Court of Appeal, consisting of Chambers, Chisholm, and Venning JJ.

The key legal issue was whether the sentence imposed by the sentencing judge was manifestly excessive. Geros argued that the starting point for sentencing was too high and that the one-year uplift for prior offending was impermissible. The Crown contended that the sentence was fair and appropriate, taking into account the totality of Geros's offending. The Court of Appeal considered the arguments presented by both parties and examined the sentencing principles outlined in relevant case law.

The Court of Appeal found that the starting point for sentencing was slightly high, but agreed with the Crown that a ten-year starting point would have been more consistent with the authorities. The Court also found that the uplift for prior offending was justified due to Geros's history of violent offending. The discounts for the guilty pleas, youth, and personal history effectively cancelled each other out, leading to an overall fair and appropriate sentence. The Court of Appeal dismissed the appeal, affirming that the sentence was not manifestly excessive.

The Court of Appeal granted the extension of time for appealing and dismissed the appeal. No further orders were made.

Orders