R v Gardiner (No 2)

[2011] NSWSC 240

Supreme Court

New South Wales

Medium Neutral Citation:	R v Gardiner (No 2) [2011] NSWSC 240
Hearing dates:	29 and 30 March 2011
Decision date:	30 March 2011
Before:	BUDDIN J
Decision:	Sentenced to a term of 9 months imprisonment to commence on 24 December 2007 and to expire on 23 September 2008.
Catchwords:	CRIMINAL LAW - sentence - remaining in a building with intent to commit assault - young Aboriginal offender with history of mental illness
Legislation Cited:	Criminal Procedure Act 1986
Category:	Sentence
Parties:	Regina (Crown) Noel Keith Gardiner (Offender)
Representation:	Counsel: S Huggett (Crown) C Bruce SC (Offender) Solicitors: S Kavanagh (Solicitor for Public Prosecutions) (Crown) Legal Aid Commission
File Number(s):	2009/199893

Judgment

1. Noel Keith Gardiner (the offender) pleaded guilty to an indictment which alleged that on 8 November 2007 he did remain in a building, namely unit 33 of 392 Jones Street Ultimo, with intent to commit an indictable offence therein, namely assault. The maximum penalty for the offence when prosecuted on indictment is 7 years imprisonment.

1. The offender originally pleaded not guilty to an indictment that contained three counts, one of which alleged a more serious offence than the one to which he pleaded guilty. He was originally due to be tried last week in the District Court in respect of that indictment. However, the Crown was granted an exemption, pursuant to s 128(2) of the Criminal Procedure Act 1986 (the Act), in order that that matter and the trial of the offender in respect of an unrelated offence of murder, could proceed at the same time in this Court.

1. The trial of the offender in respect of both matters proceeded as a trial by judge alone after the offender made an election, pursuant to s 132(1) of the Act, to be tried in that fashion. The accused indicated that he had received the advice of his solicitor before making that election and the Crown also indicated its consent to the matter proceeding in that fashion.

1. Earlier today I found that the accused was not guilty of the charge of murder by reason of mental illness. I then made various consequential orders in accordance with the provisions of the Mental Health (Forensic Provisions) Act 1990 .

1. The plea of guilty was entered after the offender was re-arraigned. I was informed that the Director of Public Prosecutions has decided not to proceed further with the counts which were upon the original indictment.

1. I have been provided with an Agreed Statement of Facts and I have drawn heavily upon that document in recounting the background to the offence. On 8 November 2007 between about 12:40am and 12:55am Mohammed Khan (the victim) and his girlfriend Nikol Cillerova were sitting in the living room of their ground floor unit at 33/392 Jones Street, Ultimo. Their unit was located within a four storey unit complex. It had a small fenced veranda at the rear, which could be accessed from the lounge room through glass sliding doors. The fence was a metal railing fence about 1 metre high.

1. The victim observed three people standing on the veranda looking through the glass sliding doors into the living room. The victim walked towards the glass sliding doors and yelled out " What do you want ?" The three people jumped over the fence. The victim unlocked the glass door and saw two males standing on the path to the right of the veranda about 10 feet away. One of them was Aboriginal, aged about 16 and wearing dark clothing. The victim thought that the front of his hair may have been bleached white. The two males appeared to be looking towards a third male who was standing on the path to the left of the veranda. The third male was described as Aboriginal, about 15-19 years of age, of fit build, about 5'4" tall, and wearing a long sleeved jumper and long dark brown pants. His head appeared to have been shaved. This person was the offender.

1. The victim yelled out to the males " What are you doing here ?" The three males stood there watching him. The offender walked closer to the corner of the veranda. He stopped on the path about 3 feet away from the corner and started to pull his jumper, which was red in colour, over his head. Although his face was obscured by his jumper, the offender then jumped over the fence. When he landed on the veranda, the offender put his head down and ran straight at the victim, striking the victim in the abdomen with his [the offender's] head. The force caused the victim to stumble backwards and both he and the offender ended up inside the unit.

1. The victim hit the offender to the back of the head with a glass vase causing it to break. He then pushed the offender away from him. The offender immediately lunged at the victim who stumbled backwards and tripped over a couch. As he fell, the victim grabbed the offender's red jumper and held him so that his head was close to his [the victim's] chest. Ms Cillerova then hit the offender on his back with a lamp. Although the offender and the victim continued to struggle, the offender was eventually able to get free. He jumped over the veranda fence and went down a path towards the car park. The victim was left holding the red jumper.

1. In due course ambulance and police arrived. The victim was treated for injuries which included a cut to his left hand, pain and swelling to his right thumb and a number of smaller cuts on both hands. Police seized the red jumper and broadcast the offender's description.

1. Earlier that evening, at about 12:40am, Detective Chief Inspector Stuart Bell had been patrolling the Ultimo area. He had seen two Aboriginal males leaving a kebab shop on the corner of William Henry Street and Bulwara Road, Ultimo which is one block away from Jones Street. One male was 16 years old with dark hair and blonde tips and was wearing a blue t-shirt with a white stripe. The other male was wearing a red shirt and jeans. The males were observed walking towards Bulwara Road. After speaking to police at the crime scene at around 1:00am, Detective Bell returned to his vehicle and began patrolling the area. He drove past the kebab shop and saw the same male, whom he had seen at 12:40am wearing a red shirt, standing inside the shop. That male, who was no longer wearing a shirt, was the offender.

1. Detective Bell walked towards the shop and identified himself to the offender who was standing in the doorway. The offender said that his name was Buddy Gardiner and that he had been "hanging out" with some friends that night. Detective Bell asked the offender "Where is the red shirt that you were wearing?" The offender replied "One of them must have it". When Detective Bell removed a mobile telephone from his jeans pocket and asked him whether it belonged to him, the offender ran down Bulwara Road. He was apprehended a short distance away.

1. The offender was taken into custody. He declined to participate in an ERISP and also declined the services of the ALS. Police informed the ALS of his arrest and an ALS solicitor then spoke to the offender. During that conversation, the offender said "I will kill myself if I go back to gaol". As a consequence of that statement, the offender was released from police custody and conveyed to Rozelle Hospital for assessment. Later that day he disappeared from that facility. That was, as I understand it, the fourth occasion within the period of about a week on which he had absconded from that hospital.

1. Forensic examination conducted by police revealed that the red jumper had been turned inside out, and that a red t-shirt had been worn underneath the jumper. DNA testing revealed the presence of blood on the red jumper and the red t-shirt. The victim has the same DNA profile as the DNA which was recovered from the red jumper and on the red t-shirt. The offender has the same DNA profile as the DNA which was recovered from a stained area on the red t-shirt. The offender has the same DNA profile as the major component of a mixture of DNA which was recovered from an unstained area on the red t-shirt.

1. On 11 November 2007 the offender was arrested in respect of an unrelated matter. On 22 November an order was made by reason of that offence and a further offence, which he had committed on 30 September 2007, that the offender be taken to a psychiatric hospital. Medical records held in respect of the offender revealed that during that period of time, he had been experiencing auditory hallucinations and psychotic episodes. On 24 December 2007 the offender received sentences of imprisonment in respect of various other offences, as a consequence of which he remained in custody until 23 August 2008.

1. A significant delay occurred before the offender was arrested for these offences whilst police awaited results of DNA testing. It was not until August 2009 that the offender was listed on the police database as being wanted for this offence.

1. On 20 August 2009 the offender attended Casino Police Station. He said that his girlfriend had been kidnapped but he was unable to provide any further details about the incident. After seeing what was on the database, police arrested the offender in connection with the present offence. The offender replied " What break and enter? I only just got out of gaol. I couldn't do no break in ". He was cautioned and said " But I couldn't of broken into anywhere ".

1. Custody Management Records held by police recorded the following observations of the offender:

"Visual Assessment

...Does the person appear irrational or mentally disturbed?: Y

Comments: Appears to possibly be suffering mental illness. Claims that his girlfriend has been kidnapped. But cannot provide any names or details."

1. The offender was granted bail in Lismore Local Court the following day. A condition of his bail was that he was to reside with his aunt, Ms Phillips, at 9 Albert Street, Casino. A couple of weeks later he stabbed and killed Ms Phillips. (It was that incident that led to the charge of murder to which I referred earlier).

1. The offender is now aged 22. It would appear that he was born in Inverell but that his family moved shortly thereafter to Casino. His parents separated when he was about 5 or 6 years of age, following which he lived with his mother and a younger brother. At some stage the offender ran away and went to live with his father in Kempsey. Sadly his mother died not long thereafter.

1. Following his mother's death, the offender moved to live with his aunt in Sydney and then with a succession of relatives in various parts of the city. The offender had a very disrupted education and was twice expelled from school for fighting. He left school in Year 8. He has a history of significant alcohol and illicit drug dependency and has never been employed.

1. The offender is no stranger to the criminal courts. Nevertheless, all of his convictions have been in either the Children's Court, or more recently, in the Local Court. His record relevantly includes convictions for dishonesty, including offences of break and enter, and for assault. It is apparent that this is a matter which could have been disposed of summarily, a factor which I take into account in fixing sentence. The offender has also suffered for many years from mental illness and has been not infrequently hospitalised in psychiatric institutions as a consequence. His Justice Health file, which contains his medical records, is very extensive.

1. There are a number of matters upon which the offender is entitled to rely which serve to ameliorate the otherwise appropriate penalty. First, it is to be weighed in his favour that he has pleaded guilty to the offence. In assessing the weight to be given to that consideration, I have had regard to the circumstances in which it was entered. Secondly, I take into account the fact that there has been a significant delay in having the proceedings brought to finality. Thirdly, I take into account the offender's mental condition at the time of the offence. In that respect I have had the advantage of detailed psychiatric reports which were prepared by Dr Roberts and Dr Nielssen respectively. They each indicate that the offender was suffering from chronic schizophrenia at the relevant time to such an extent that he had available to him a defence of "mental illness", within the meaning of the M'Naghten test. It is not without significance that the offender's plea of guilty was entered in circumstances in which he had available to him a defence which would have had the consequence that he was not responsible in law for his actions. The offender is currently being held in a psychiatric facility operated by Corrective Services NSW by reason of his mental illness which, regrettably, persists. However, he is, as I understand it, currently being medicated.

1. Although it was recognised by counsel for the offender that it was appropriate to impose a sentence of imprisonment upon the offender, it was submitted that it should be ordered to commence on 24 December 2007, the date upon which he was dealt with for other offences committed on 8 November 2007 or at around that period of time. The Crown conceded that that was an appropriate course to take in the highly unusual circumstances of the case.

Order

1. Noel Keith Gardiner, I sentence you to a term of 9 months imprisonment to commence on 24 December 2007 and to expire on 23 September 2008. I decline to set a non-parole period given that any such period would have now well expired, and accordingly it would serve no useful purpose to set one.

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Decision last updated: 01 April 2011