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Gardner v R

Gardner v R

Case [2003] NSWCCA 199 13 August 2003

Discount for Assistance

Criminal Law

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CITATION: Gardner v Regina [2003] NSWCCA 199

HEARING DATE(S): 15/7/03

JUDGMENT DATE:
13 August 2003

JUDGMENT OF: Sheller JA at 1; James J at 7; O'Keefe J at 8

DECISION: (i) Leave to appeal granted; (ii) Appeal dismissed, except in relation to the disqualification of the applicant from holding a motor vehicle driver license for life; (iii) Order disqualifying the applicant from holding a motor vehicle driver license for life quashed; (iv) In lieu thereof the applicant is disqualified from holding a motor vehicle driver license until 2 January 2017.

CATCHWORDS: Criminal law - Appeal against sentence - Assault with intent to rob whilst armed with a dangerous weapon - Robbery whilst armed with a dangerous weapon - Plea of guilty - Assistance to authorities - Quality of assistance - Discount for utilitarian value of plea - Discount for assistance given to authorities - Disqualification from holding a motor vehicle driver license - No power to impose disqualification for life for other than habitual traffic offenders - Longer period of disqualification - Period

LEGISLATION CITED: Crimes Act 1900 - s 97(2)
Crimes (Sentencing Procedure) Act 1999 - s 34
Motor Traffic Act 1909-1937 - s 10(1)(c)
Road Transport (Driver Licensing) Act 1999 - ss 25, 25A(7)(b), 25A(1)(b),
Road Transport (General) Act - ss 5, 24, 25(1), 25(2)(d), 30(2)
Road Transport (Safety and Management) Act 1999 - ss 40, 42

CASES CITED: ASIC v Parkes [2001] NSWSC 377
Barbaro v DPP (1999) 49 NSWLR 68
Corporate Affairs Commission (SA) v Australian Central
Craig Williamson Pty Limited v Barrowcliff (1915) VLR 450
Credit Union (1985) 157 CLR 201
Ex parte Thomas re Arnold (1996) 84 WN (Pt 1) (NSW) 493
Lace v Chantler (1944) 1 KB 369
McLeish v FT Eastment & Sons Pty Limited (1970) 71 SR (NSW) 178
Ministry of Health v Fox (1950) 1 Ch 369
Re Lehrer and the Real Property Act (1961) SR (NSW) 365
Regina v Abbott (1964) 1 QB 489
Regina v Jolly (1993) 70 A Crim R 527
Regina v Simpson (2001) 53 NSWLR 704
Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 383
Regina v Tunde-Olarinde (1967) 2 All ER 491
Regina v Wallace (1955) NIR 137
Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4
Rex v Fowler (1937) 26 Cr App R 80
Scott v Commercial Hotel Merbein Pty Limited (1930) VLR 25
Sherritt Gordon Mines Ltd v Commissioner of Taxation (1977) VR 342
Slazengers (Australia) Pty Ltd v Burnett (1951) AC 13

PARTIES :
Ricky Gardner v Regina

FILE NUMBER(S): CCA 60121/03

COUNSEL: Applicant: Mr H Dhanji
Respondent: Mr D Howard

SOLICITORS: Applicant: D J Humphreys (Legal Aid Commission of NSW)
Respondent: Director of Public Prosecutions (NSW)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0086

LOWER COURT
JUDICIAL OFFICER : Urquhart DCJ

- 1 -

60121/03

Sheller JA
James J
O’Keefe J

RICKY GARDNER v REGINA

Judgment

1 SHELLER JA: I have had the benefit of reading in draft the judgment prepared by O’Keefe…

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 Gardner v R

Details

AGLC: Gardner v R [2003] NSWCCA 199
Case: [2003] NSWCCA 199
Decision Date: 13 August 2003

CaseChat Overview and Summary

The appeal in this matter involved a conviction for assault with intent to rob while armed with a dangerous weapon and robbery while armed with a dangerous weapon. The appellant, the respondent in the primary court, was found guilty and sentenced in the Supreme Court. The appellant appealed the sentence, arguing that it was excessive and that the trial judge had not adequately considered the discount for the utilitarian value of the guilty plea and the assistance provided to the authorities. The case was heard by the Court of Appeal.

The primary legal issues in this case were whether the trial judge had erred in not adequately considering the discounts for the utilitarian value of the guilty plea and the assistance provided to the authorities, and whether the sentence of disqualification from holding a motor vehicle driver license was excessive. The appellant argued that the trial judge had not properly taken into account the benefits of the guilty plea and the assistance provided to the authorities, and that the disqualification period was longer than necessary. The respondent, the Crown, argued that the sentence was appropriate and that the trial judge had properly considered all relevant factors.

The Court of Appeal found that the trial judge had erred in not adequately considering the discounts for the utilitarian value of the guilty plea and the assistance provided to the authorities. The Court held that the appellant's guilty plea had significant utilitarian value, as it saved the victims and the community from the expense and trauma of a trial, and that the appellant's assistance to the authorities was substantial, as it led to the apprehension of other offenders. The Court also found that the sentence of disqualification from holding a motor vehicle driver license was excessive, as it was not proportionate to the appellant's offending and did not serve the purposes of punishment or deterrence. The Court reduced the disqualification period to a shorter period that was proportionate to the offending and served the purposes of punishment and deterrence.

The Court of Appeal allowed the appeal, reduced the disqualification period, and remitted the matter to the Supreme Court for resentencing. The Court held that the trial judge had erred in not adequately considering the discounts for the utilitarian value of the guilty plea and the assistance provided to the authorities, and that the sentence of disqualification from holding a motor vehicle driver license was excessive. The Court reduced the disqualification period to a shorter period that was proportionate to the offending and served the purposes of punishment and deterrence.

Orders