R v Gardiner

[2016] NSWDC 402

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Gardiner [2016] NSWDC 402
Hearing dates:	14 December 2016
Date of orders:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Enter dwelling house with intent to commit larceny in circumstances of aggravation – Person in house at time of offending – On s9 bond at time of offending
Category:	Sentence
Parties:	The Crown Jake Gardiner
Representation:	Solicitors: Director of Public Prosecutions Legal Aid Commission- the offender
File Number(s):	2016/13767; 2016/71523

Judgment

1. HIS HONOUR: Anyone who has spent much time in these courts would know the awful effects that drugs have on the users of them. Those effects were well expressed by the offender Jake Gardiner and his mother in court today. Many drug users become focused on only one thing, themselves. In their desire to obtain drugs they become, whilst they are using drugs, most unpleasant people who think nothing of their loved ones and abuse those for whom they should care.

2. Jake Gardiner is one such person. He began using drugs from about the age of 12 when he started with cannabis. He progressed to using ice at 14 and moved on to include Xanax at 15. Not surprisingly, given that his mother and her partner, the offender’s stepfather, have four younger children, they asked him to leave their home. After all, they had to protect their younger children. Once they did that, the offender’s desire to obtain drugs was influenced by the people that he was associating with on a daily basis.

3. It was in these circumstances that he came to commit the offence for which I must sentence him, an offence of entering a dwelling house with intent to commit larceny in circumstances of aggravation, the circumstance of aggravation being that there was someone in the home at the time.

4. When I sentence him that matter he asks me to take into account four matters on a Form 1. Somewhat curiously, one of those matters is an offence of larceny. It relates to property stolen from a home. So I am to sentence him for an offence which has as its element an intent to commit a larceny taking into account that he did actually steal something. This sort of creative plea bargaining is not to be encouraged. The other three offences on the Form 1 all concern the use of a credit card which was not his. He used it on three occasions to obtain things of relatively small value, $26, $14.99 and $72.89.

5. He pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been.

6. The substantive offence committed by the offender came about this way. Almost exactly a year ago a family left their home in Cronulla. A little while later the father returned home, went inside and went upstairs to watch the cricket on the television. At one stage he heard the side gate open and close about 20 minutes later. He thought that this was one of his sons who had come and gone from the house.

7. What had actually happened is that the offender had entered the house through the back door and searched through a number of rooms in the house. He was able to do so because of the television going upstairs. It would have been clear to the offender that there was someone home at the time. He, of course, would not have known whether it was the father, the mother or even children. But consistent with what I said at the beginning of these remarks on sentence, he probably did not care. Whilst in the house he went through a number of rooms and eventually stole a Samsung tablet, the larceny of which appears on the Form 1.

8. Some time after that the mother returned home, alerted her husband to some strange things that she noticed and saw that someone had been going through their belongings.

9. Police were contacted. They obtained some fingerprints which turned out to match those of the offender. The police found him later on that day. They found the Samsung tablet in a car in which the offender was travelling as a passenger. Eventually he was arrested in relation to this matter, and declined to participate in an interview.

10. Although fortunately the one thing which was stolen, the Samsung tablet, was recovered, that is probably of small comfort to the family whose home the offender entered. It would not be surprising at all to learn that they have been effected by the offender’s conduct. It would not be surprising to learn that they are more fearful about offences of this kind and are concerned that what was previously a place of safety has now been entered in the way I have described.

11. The maximum penalty for this offence is 14 years imprisonment, which demonstrates the seriousness with which Parliament says such offences should be treated. There are various forms of aggravation of the offence too. In this case the form of aggravation is one of the most serious ones. There was a person in the premises when the accused entered them.

12. On top of that, the offender was on a s 9 bond at the time. He had possessed prescribed substances and goods in custody and was given a bond on 1 October 2015. It was only a short time late that he committed this offence. That is an aggravating circumstance in the present case.

13. The offender went into custody on 14 January 2016, the day of his arrest, and he has been serving a sentence relating to other matters until 12 July 2016. Thus, a little over five months of his custody is referrable to this offence.

14. His mother and he gave evidence today. They both speak of the change that has come about since the offender’s arrest. The offender expressed his remorse, primarily in the sense that he has caused a great deal of harm to his own family. His mother is unwell, his stepfather’s father recently died, and the last thing that they need is to have to worry about the offender on top of that.

15. The offender recognises that he has treated his family badly. He also recognises that he has harmed the people whose home he entered on 12 December 2015.

16. He is still a young man, 20 years of age, and so there are hopes that his offending, including a series of other offences that appear on his criminal history, is going to be an isolated period of misbehaviour.

17. Whilst in custody he has seen many people who, having committed offences like him, go on to commit more and more offences. I trust that he has seen the futility of such a life. He would have come into contact, whilst in gaol, with many men who, when they hit their 40s or early 50s, suddenly realise the futility of the life they have been leading. To them, long term relationships have been denied. To them, life has largely consisted of gaol routine with none of the pleasures that life outside can bring. If the offender continues the way he has been going, he too will end up in that position, realising only too late that he should have done something about his life when he was 20 years of age. This is his chance.

18. I am satisfied that a sentence of two years or less will be imposed. I am also satisfied it is appropriate that he be assessed as to his suitability to serve his sentence by means of an Intensive Corrections Order. That will take some time.

19. I’ll list the matter on 3 March next year.

20. In the meantime, without opposition from the Crown, I grant bail to the offender. The conditions of the bail are these:

21. Firstly and most importantly, he is not to use any illegal drugs.

22. Secondly, he is to live with his mother and stepfather at 105 Illawarra Street, Allawah.

23. A third condition is to report twice a week, that is every Monday and Thursday, to the officer in charge of the police station at Hurstville.

24. Mr Gardiner, can you stand up, please. This is your one chance, okay? Mr Cruickshank is going to explain this in a bit more detail, but what will happen between now and 3 March is that people are going to come out and see you and see whether you are suitable to serve a sentence that doesn’t involve you going to gaol. They’re going to do some urinalysis and some breath tests to make sure that you are suitable to do a sentence in the community, not in gaol. So if you come back next March and you’ve used drugs, they’ll recommend that you’re not suitable for this form of sentence and I’ll send you back to gaol.

25. Do you understand that?

26. OFFENDER: Yes.

27. HIS HONOUR: If you go back to gaol there is only one person you’ve got to blame and that will be you.

28. OFFENDER: I know that.

29. ADJOURNED TO FRIDAY 3 MARCH 2017

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Amendments

27 February 2017 - Punctuation added to cover sheet

27 February 2017 - Punctuation added to cover sheet

Decision last updated: 27 February 2017