STATE OF TASMANIA v CORY MITCHELL GESLER 11 OCTOBER 2022
COMMENTS ON PASSING SENTENCE PEARCE J
Corey Gesler, you were found guilty by a jury of aggravated armed robbery and committing an unlawful act intended to cause bodily harm. It is for me to determine the facts on which you are to be sentenced. I may only make findings adverse to you if satisfied beyond reasonable doubt they have been proved and I may only make findings in your favour if they are proved on the balance of probabilities.
The crimes were committed by you and three other men, Clinton Wilson, Sammual Wilmot, and Jake Herlihy overnight between 9 and 10 January 2018. The victim was Alex Friend, a male then aged 47. At the time, you were aged 24. Mr Wilson was 25, Mr Wilmot was 23 and Mr Herlihy was 18. Mr Herlihy’s girlfriend who was then aged 17, was also there. Mr Wilmot knew Mr Friend and knew he had money and drugs. You arrived on your motor cycle with Mr Wilson as your passenger. At about 11pm, Mr Friend was invited to the unit by text message. He arrived not long afterwards with a large amount of crystalline methylamphetamine and several thousand dollars in cash. He was set upon and subjected to a prolonged, vicious and brutal beating. He was punched to the face, head and body. When he fell to the floor he was repeatedly struck with punches, elbows and a wooden chair leg. Electrical tape was wound around his neck and face. As he lay on the ground, severely injured, Mr Herlihy kicked his face with such force as to render him unconscious. As a result of the beating much blood was spread around the unit, including on the floor and walls of the lounge room and kitchen. Blood spatter was later found on the chair leg which had been used as a weapon.
After the violence stopped, and Mr Friend lay unconscious and bleeding on the floor, he was loaded into the tray of the utility he had driven to the unit and driven away by Mr Wilson in the direction of Waverley Lake. The evidence did not establish what was intended. However, on the way, Mr Friend regained consciousness and despite his grievous injuries, managed to crawl out of the utility, falling onto the road as the vehicle slowed to round a corner. He was left by the side of the road and his car abandoned in the lake. He was found by a nearby resident at about 12.30 am.
At trial there was no dispute that you were present at the unit. Clinton Wilson and Jake Herlihy refused to give evidence. Sammual Wilmot and the female gave evidence but their evidence was, for the most part, unfavourable to the prosecution. However each of those persons participated in police interviews shortly after the crimes and, in those interviews, gave descriptions of not only their own involvement but of the part you played. In assessing the level of your responsibility for the crimes I warn myself, as I warned the jury, of the need for great caution when assessing the accounts of those persons given to the police. Each of them were criminally concerned in the same crimes and may have had an interest in minimising or deflecting their own responsibility for the crimes. However, I am satisfied beyond reasonable doubt that of the four men responsible for the attack, your level of responsibility is the highest. In my assessment, despite the hearsay nature of the evidence, the individual and cumulative force of their accounts, when considered in light of all of the evidence, is compelling. Although there are some differences in detail, I am satisfied that the various accounts of you being the main aggressor are truthful. I find that you, with Mr Wilmot, were responsible for the plan to rob Mr Friend and that it was the purpose of your visit to Mr Wilmot’s unit. I also find that you initiated the attack and were thereafter primarily responsible for infliction of actual bodily harm to Mr Friend with intention to cause grievous injury. Although Mr Herlihy admitted kicking Mr Friend, Mr Friend had by then already been subjected to prolonged serious violence by you, but also by Mr Wilson, and to a lesser extent, Mr Wilmot. Mr Friend was gravely injured as a result of blows you struck including with the chair leg, but you were a party to and are criminally responsible for all of the violence. I am satisfied that you were responsible for putting electrical tape around Mr Friend’s mouth and neck, most likely to try to keep him silent. It may be that he suffered some further injury as a result of falling from the utility, but the nature and extent of his injuries is such that I am satisfied that they were almost entirely suffered at the unit before he was driven away. After Mr Wilson’s return you left with him, taking a substantial portion of the money and drugs.
At trial there was evidence of statements you made during phone calls to your mother from prison claiming that during the assault you were in the bathroom of the unit having sex with the female. The female gave evidence to jury to the same effect. I reject the statements as obvious lies. The proposition that such a brutal and prolonged assault could take place in such a small unit while you remained largely oblivious to it is so implausible that it may be rejected without anything more. It is inconsistent with the description given by the co-offenders of your role which I find to be truthful. Mr Wilson accepted responsibility for his own conduct but also described the part you played. Given the nature of his own admissions he had little or nothing to gain by incriminating you. What he said is corroborated in important respects by the circumstantial evidence and the statements of others with whom he had no opportunity for concoction. Mr Wilmot, while making admissions of his own conduct, described you as being principally responsible for a brutal attack. Mr Herlihy also described you and Mr Wilson being responsible for most of the violence. It is possible that they sought to gain from deflection of responsibility to you, and there was some opportunity for them to concoct a story to minimise their own involvement, but again they made substantial admissions and the accounts they gave do not have the flavour of concoction. My observations of them during their police interviews is that the accounts of your involvement are truthful. Details they gave are corroborated by circumstantial evidence. Your involvement is confirmed in another important respect. In a diary like entry which I am satisfied was made by the female on her phone shortly after the attack she stated “Corey just flogged this poor bloke there’s blood everywhere we can’t get it out of the carpet.” The description of the blood and the attempt to clean are confirmed by undisputed evidence and the note was made at a time and in circumstances which, I find, make it highly likely to be true.
Mr Friend suffered grievous and life threatening injuries. A description of them is necessary to convey the nature and extent of the crime and its impact. When he was found he still had electrical tape around his neck. He was struggling to breathe. Medical investigation at the hospital disclosed terrible injuries to his head and torso. The following is not a complete list. His face was bleeding, deformed and extensively swollen. The cheekbones, eye sockets and nasal bones were fractured on both sides of his face. His lower jaw was badly fractured and dislocated. In his neck, the hyoid bone and thyroid cartilage were fractured. Air was trapped at the base of his skull which suggested disruption of the trachea and oesophagus. There was a left side rib fracture. His left lung was collapsed, bruised and bleeding internally and blood and air were in the chest cavity. Breathing sounds indicated problems with air flow. He was put on a ventilator with a tracheostomy and a feeding tube. He was kept in an induced coma for five weeks. He spent a further five weeks in recovery before he was capable of being discharged from hospital. The physical and emotional impact of the attack remains profound. His life has been permanently affected. He required extensive surgery to reconstruct his face. The extent of the injuries means, however, that there is continuing serious damage and distortion to the structure, nerves and muscles in his face, mouth and teeth, all which have both a functional and cosmetic effect likely to be lifelong. More painful surgery has been undertaken and more is likely still required. His breathing, and his neck, arms, shoulder and leg are also affected. Although I have no medical evidence of cognitive impairment, he experiences mild memory loss, tinnitus and other neurological symptoms, as well as, understandably, profound psychological effects.
You are now aged 28. You have a bad record for violence which commences when you were a youth and for which you served a period of detention. In 2015 and 2016, when you were 22 and 23, you committed a number of violent crimes. On 15 November 2015 you committed three gratuitous and unprovoked assaults against three different men in a night club, two of whom were punched and another head butted and punched. During the following month you committed three further separate common assaults by either punching or kicking. Then on 16 January 2016 you committed six common assaults by punching six different male complainants when you and others entered the Bridport Hotel. You were sentenced for those offences in a different order, but the combined result was a term of imprisonment commencing on 20 January 2016, part of which was suspended. On 23 December 2017, not long after you were released, you committed another common assault when you punched another man. The result was activation of the suspended part of the sentences and a further term, a total of 12 months from 16 January 2018, the day you were taken into custody for these crimes. The crimes for which you are now to be sentenced were committed only a few weeks after that December 2017 assault, but I do not see that there is any cause to discount the sentence I am about to impose for reasons of totality given the substantial separate criminality involved. You were due to be released on 15 January 2019 and were admitted to bail on 22 February 2019. I will take into account the extra period of custody by backdating the sentence by 40 days from 1 July 2022 when you were remanded in custody following the verdict.
Your counsel has said everything which could properly be said on your behalf. There has been a significant delay since this crime but delay per se is not relevant to sentence. It is not a consideration which warrants a discount on sentence. Your counsel has provided me with a comprehensive report prepared by a consultant psychologist, Mr Simon Candlish, dated 11 September 2022. Mr Candlish detailed your personal history and gave an opinion based on a range of psychometric tests and risk assessments he administered. You come from a background of violence and exposure to heavy substance abuse. Your father was a violent man and seemed to encourage you to resolve conflict with violence. You were subjected to other serious trauma and abuse which I have read about in detail but need not detail here. This all contributed to serious substance abuse which commenced in your early teens and has continued unabated until now, for some years in the form of methylamphetamine addiction. Substance abuse further predisposes you to violence. In Mr Candlish’s opinion you meet the criteria for mild personality disorder. He noted your history of violence but placed some reliance on the fact that there had been no further violence detected since 2018. He reports an elevated risk of future violence but, at the same time, describes the risk in the moderate to low category.
Nowhere in Mr Candlish’s report does he indicate that any condition suffered by you decreases your culpability, reduces the need for specific or general deterrence or may make prison more onerous for you than it otherwise would be. He states that sustained imprisonment could undermine your capacity for self-direction, worsen your proneness to inappropriate reaction and self-damaging acts, and increase your susceptibility to pessimism and negativity. Whilst the risk that imprisonment may have a significant adverse effect on your mental health is relevant to sentence I regard it as a consideration of little weight in this case and it is not suggested by your counsel that it is a factor of any real significance. I take into account that there have been some signs of increased insight and an ability to engage with support services. A report from a social worker with whom you had some contact following March 2019 suggests that an extended sentence would be detrimental to your mental health and create barriers to rehabilitation. Another support service describes that you attended some appointments while in prison in 2019 and that therapy may assist management of resort to violence. With great respect to the authors of those reports, anything other than a significant prison sentence would not properly effect the very strong need for punishment and protection of the public, vindication of the victim and denunciation your conduct arising from the shocking injuries that you inflicted. Additionally, the sentence must serve, as far as a court is able to achieve, to deter you and others from such crimes in the future.
There are no other mitigating factors. You are not entitled to the benefit a plea of guilty may otherwise have attracted and you have demonstrated no remorse. It is a serious example of both crimes although they arise from the same course of conduct. The main criminality arises from the level of violence involved. Responsible members of the community would be rightly shocked and appalled by violence of this nature. The robbery, including the violence intended to facilitate it, was premediated. You and the others, motivated only by money and drugs, lured the complainant into a trap and then confronted him with the combined force of four men. He was subjected to a merciless attack, including with a weapon, accompanied by an intention to inflict serious injury and which resulted in terrible injuries. The violence went far beyond that which was necessary to carry out the robbery and a person capable of such acts of brutality must present a risk to society. I have regard to the sentences imposed on the other offenders all of whom, unlike you, pleaded guilty. Mr Wilson is the most comparable, but he played no role in planning the robbery. In my view his record for violence was not as bad as yours. After the recent Court of Appeal decision both he and Mr Wilmot were re-sentenced to imprisonment for six years with eligibility for parole after half of that term. Mr Herlihy was given a lesser sentence but his culpability generally was less. I will allow eligibility for parole but not until you have served enough of the term to serve the sentencing aims I have identified.
Corey Gesler, you are convicted and sentenced on both counts. I impose one sentence. You are sentenced to imprisonment for seven years from 21 May 2022. I order that you not be eligible for parole until you have served four years of that term.