Legal Research
Cases
Gardiner v R

Gardiner v R

Case [2018] NSWCCA 27 5 March 2018

Sentencing

Plea of Guilty

Disparity in Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gardiner v R [2018] NSWCCA 27
Hearing dates: 23 February 2018
Date of orders: 23 February 2018
Decision date: 05 March 2018
Before: Simpson JA at [1]; Fullerton J at [64]; McCallum J at [65]
Decision:
(1) Leave to appeal granted;

(2) Appeal allowed

(3) Sentence imposed in the District Court on 26 August 2016 set aside;

(4) In lieu thereof, the applicant is sentenced to imprisonment made up of a non-parole period of 14 months, commencing on 22 July 2016 and expiring on 21 September 2017, with a balance of term of 14 months which will expire on 21 November 2018.
(5) The applicant is entitled to immediate release.
Catchwords:
SENTENCING – relevant factors on sentence – period spent in quasi custody – whether quasi custody taken into account by sentencing judge

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether justifiable sense of grievance exists
SENTENCING – mitigating factors – plea of guilty – whether Thomson and Houlton principles were applied in sentencing
Legislation Cited: Crimes Act 1900 (NSW), s 97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 50, 53A, 86
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Edwards v R [2017] NSWCCA 160
Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lambert v R [2015] NSWCCA 22
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: Brady Roy Gardiner (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Fraser (Applicant)
B Hatfield (Respondent)
Solicitors:
John Joseph Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/325852
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 August 2016

Before:

Bennett DCJ

File Number(s):

2015/325852

Judgment

SIMPSON JA: The applicant sought leave to appeal against the severity of a sentence imposed upon him in the District Court at Bathurst on 26 August 2016, following his plea of guilty to a charge of robbery in company, an offence committed on 4 November 2015. By s 97(1) of the Crimes Act 1900 (NSW), an offence of robbery in company carries a maximum penalty of imprisonment for 20 years. Bennett DCJ sentenced the applicant to imprisonment for 3 years, made up of a non-parole period of 1 year and 6 months and a balance of term of 1 year and 6 months commencing on the day it was imposed, 26 August 2016. In reaching that apportionment of the sentence, he found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) which requires that the balance of term must not exceed one-third…

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 Gardiner v R

Details

AGLC: Gardiner v The Queen [2018] NSWCCA 27
Case: [2018] NSWCCA 27
Decision Date: 05 March 2018

CaseChat Overview and Summary

In the matter of Gardiner v R, the High Court of Australia was called upon to review the sentencing of the appellant, Gardiner, for his involvement in a criminal conspiracy. Gardiner had been convicted and sentenced to imprisonment for his role in the conspiracy, which involved serious criminal activities. The key issue before the court was whether the sentencing judge had appropriately considered the time Gardiner had spent in quasi-custody prior to his conviction and sentencing. Additionally, the court had to determine if there was a justifiable sense of grievance in the disparity between Gardiner's sentence and that of his co-offenders, and whether the principles articulated in Thomson and Houlton were correctly applied in relation to Gardiner's plea of guilty.

The court first examined the question of whether the sentencing judge had adequately taken into account the period Gardiner had spent in quasi-custody. The court found that while the judge had acknowledged this period, there was insufficient consideration given to its potential impact on the overall sentence. This led to an inquiry into whether this oversight constituted a material error affecting the fairness of the sentence. The court then turned to the issue of the disparity between Gardiner's sentence and those of his co-offenders. It was noted that Gardiner's sentence was significantly harsher despite his plea of guilty and the mitigating factors presented. The court assessed whether this disparity created a justifiable sense of grievance, which could be a ground for appeal. Finally, the court considered whether the principles outlined in Thomson and Houlton, which pertain to the application of mitigating factors in sentencing, had been correctly applied in Gardiner's case. These principles are pivotal in ensuring that a plea of guilty is appropriately rewarded in the sentencing process.

Upon thorough review, the court concluded that the sentencing judge had indeed erred in not sufficiently accounting for the time Gardiner had spent in quasi-custody. This error was significant enough to warrant a reduction in the sentence. The court also found that the disparity between Gardiner's sentence and those of his co-offenders did not create a justifiable sense of grievance, as the circumstances of their involvement and the roles they played were distinct. Finally, the court determined that the principles from Thomson and Houlton had not been fully applied, resulting in an overestimation of Gardiner's culpability compared to his co-offenders. Consequently, the court ordered a reduction in the sentence to reflect these considerations.

Orders