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Gardener v The Queen

Gardener v The Queen

Case [2015] NSWCCA 170 29 June 2015

Protection of the Community

Criminal Law

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Gardener v R
Medium Neutral Citation:	[2015] NSWCCA 170
Hearing Date(s):	23 June 2015
Decision Date:	29 June 2015
Before:	Price J at [1]; R A Hulme J at [2]; Davies J at [83]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – armed robbery – carried in conveyance – whether sentencing judge erred in approach to issue of mental illness – relevance of general deterrence – whether specific deterrence, prospects of rehabilitation, custodial conditions and protection of the community properly weighed – where applicant has extensive criminal history and drug and alcohol abuse issues – applicant from deprived and dysfunctional background – where rehabilitation important but applicant’s prospects poor – no error established in approach of sentencing judge CRIMINAL LAW - appeal against sentence – armed robbery – carried in conveyance – whether sentencing judge erred in principle in refusing deferral of sentence pursuant to s 11 Crimes (Sentencing Procedure Act) 1999 (NSW) – no error in principle – not an appropriate case for deferral of sentence CRIMINAL LAW – appeal against sentence - fresh evidence – new evidence – general principles – whether applicant can rely on material as fresh evidence - proper grounds not established – material only relevant in event of re-sentencing CRIMINAL LAW - appeal against sentence – armed robbery – carried in conveyance – whether sentence manifestly excessive – where applicant in company – where offence planned – applicant on parole and with extensive criminal history including offences of violence – sentence not unreasonable or unjust – lesser sentence not warranted
Legislation Cited:	Crimes Act 1900 (NSW) ss 97, 154A Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 11 Criminal Appeal Act 1912 (NSW) s 6 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Brown [2009] NSWCCA 6; 193 A Crim R 574 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Farrell [2014] NSWCCA 30 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Category:	Principal judgment
Parties:	Guy Pearce Gardener (Applicant) Regina (Respondent)
Representation:	Counsel: Mr D Dalton SC (Applicant) Ms S Dowling SC (Crown) Solicitors: Toomey Lawyers Solicitor for Public Prosecutions
File Number(s):	2010/420973
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	18 January 2013
Before:	Murrell SC DCJ
File Number(s):	2010/420973

JUDGMENT

PRICE J: I agree with R A Hulme J.
R A HULME J: Guy Pearce Gardener ("the applicant") was sentenced…

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 Gardener v The Queen

Details

AGLC: Gardener v The Queen [2015] NSWCCA 170
Case: [2015] NSWCCA 170
Decision Date: 29 June 2015

CaseChat Overview and Summary

The appellant in this case, Gardener, appealed against his sentence for armed robbery committed while being carried in a conveyance. The case was heard in the High Court of Australia. The central issues in the appeal were whether the sentencing judge had erred in their approach to the issue of the appellant's mental illness, whether the judge erred in principle in refusing to defer the sentence, whether the appellant could rely on material as fresh evidence, and whether the sentence was manifestly excessive.

In relation to the sentencing judge's approach to the issue of mental illness, the court found that the judge had considered the relevant factors, including specific deterrence, prospects of rehabilitation, custodial conditions, and protection of the community. The appellant had an extensive criminal history and issues with drug and alcohol abuse, but the court held that no error had been established in the judge's approach. Regarding the refusal to defer the sentence, the court found no error in principle and held that it was not an appropriate case for deferral. As for the fresh evidence, the court held that the proper grounds had not been established as the material was only relevant in the event of re-sentencing. Finally, the court found that the sentence was not unreasonable or unjust, given the appellant's extensive criminal history and the fact that the offence was planned.

The High Court dismissed the appeal against the sentence and held that the sentence was not manifestly excessive. The court emphasised the importance of rehabilitation for the appellant, but noted that his prospects were poor. The court also considered the need for general deterrence and the protection of the community. The final orders of the court were that the appeal be dismissed, and the original sentence be upheld.

Orders