A BENDIGO man who stabbed a woman 10 times in her California Gully home will have his plea hearing reheard after the Court of Appeal found he was sentenced without adequate consideration for how the attack started.
Brent Gilbert, 36, was jailed for 10 years with a seven-year non-parole period in November, 2016.
But the Court of Appeal found the sentencing judge was not given enough information about the circumstances in which the attack commenced, and was left to conclude that Gilbert was not provoked.
Further details about the stabbing were outlined in the Court of Appeal, including Gilbert’s assertion that the victim was acting erratically during the night.
Gilbert was at the victim’s house on Green Street, California Gully, at 1.30am on September 11, 2015, when they failed to find anyone who could sell him cannabis.
An email between two of Gilbert’s former lawyers was included in the Court of Appeal judgement and outlined his self-defence claim, detailing Gilbert’s allegation that the victim was “throwing knives around the house” and he drew a target on a wall to distract her.
Gilbert claims the victim became “angrier and angrier” and allegedly attacked him with a knife, before they wrestled and he stabbed her 10 times – four to the back and six to the facial area.
He later told his partner that he “had kids pulling me [sic] hair and dogs biting me and in the end I had her (or got her) in a strangle hold and she was trying to stab me”.
Evidence at the scene suggested there was a struggle in the kitchen either before or during the stabbing.
Lawyers advised Gilbert against running a self-defence argument, and a number of Gilbert’s assertions about the victim’s actions on the night were omitted from the final police summary.
The sentencing judge refused to accept Gilbert’s side of events as fact as they were not included in the summary.
The Court of Appeal found that the summary should have described Gilbert’s actions as “excessive and not a reasonable response to the circumstances as he perceived them”.
“What was not open, on the material tendered to the judge, was the conclusion that the applicant’s attack on the complainant was entirely unprovoked,” the judgement reads.
Gilbert’s appeal against conviction for intentionally causing serious injury was refused.
His appeal against the sentence was granted, and the matter has been returned to the County Court to be considered for a second time.