R v Gardner - [1997] QCA 292

[1997] QCA 292

COURT OF APPEAL
McPHERSON JA
SHEPHERDSON J

WHITE J

CA No 248 of 1997
THE QUEEN
v.

SCOTT JOHN GARDNER

Applicant

BRISBANE
..DATE 07/08/97
070897 T8/SJ3 M/T COA175/97
SHEPHERDSON J: On 29 May 1997 in the District Court held at
Brisbane the applicant pleaded guilty to four charges of
extortion committed between 15 October 1996 and 19 November 1996
(both dates inclusive). The learned sentencing Judge sentenced
him to three years and ordered that the three-year sentence be
suspended after he had served one year and that the suspension
have an operational period of three years. He applies for leave
to appeal against the severity of the sentence.

The modus operandi in each offence was similar. The applicant impersonated a policeman and attended certain public toilets. There, he addressed each victim - they were all males - and threatened the victim with arrest if he did not comply with the applicant's demand for money.

In the first count the victim did not have the money demanded - namely, $200 - and gave the applicant his home address. Some three weeks later on 9 November the applicant turned up at the victim's home saying, "You have to give me the money now or I'll have to arrest you." The victim obtained $100 from an automatic teller machine and gave it to the applicant who said he wanted the other $100 on the following Thursday. Thus, there were two oral demands made of the first victim.

The applicant approached the second victim and a similar modus operandi ensued. The applicant mentioned sums of $600 and $1,000 and eventually the learned sentencing Judge was told a figure of $400 was agreed on. The victim did not have this money. He later met the applicant but it seems that no money was paid over. On the occasion of this meeting the victim was 070897 T8/SJ3 M/T COA175/97

wearing a listening device fitted by police to whom the victim had previously gone and so they were able to record the exchange between the victim and the applicant. It appears the applicant was arrested shortly afterwards on 18 November 1996 and released on bail on the same day. This followed the meeting with the second victim. The very next day, 19 November 1996, he committed the fourth offence and this was a matter adverted to by the learned sentencing Judge. Now, it was clear that the applicant when confronted by police admitted his involvement in the offences. He pleaded guilty and the learned sentencing Judge expressly took these matters into account when fixing his sentence.

His Honour mentioned the applicant's prior criminal history saying, "You have no previous criminal history of any great significance." To put that in context the only conviction was for unlawful use of a motor vehicle in November 1990 for which the applicant had been ordered to perform 80 hours community service. The applicant was 23 years old at the time of sentence.

Now, the applicant had obtained a…

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 R v Gardner

Details

AGLC: R v Gardner [1997] QCA 292
Case: [1997] QCA 292
Decision Date: 7/08/1997

CaseChat Overview and Summary

The case of R v Gardner involved the applicant, Scott John Gardner, who pleaded guilty to four charges of extortion committed between 15 October 1996 and 19 November 1996. The applicant impersonated a policeman and attended public toilets, threatening male victims with arrest unless they complied with his demand for money. The sentencing judge sentenced Gardner to three years imprisonment, with the sentence suspended after one year of actual imprisonment, followed by an operational period of three years of suspension. Gardner applied for leave to appeal against the severity of his sentence. The central legal issue before the Court was whether the sentence imposed by the sentencing judge was manifestly excessive.

The Court of Appeal, consisting of McPherson JA, Shepherdson J, and White J, considered the nature of the offences and the applicant's motivation. The Court found that the offences were heartless, pitiless, methodical, and persistent, and that the applicant had used the pretence of being a policeman to overawe his victims. The Court emphasised the need to discourage vigilante behaviour and the blackmail of innocent law-abiding citizens. The Court found no error in the exercise of the sentencing discretion and concluded that the sentence imposed was not manifestly excessive. Consequently, the application for leave to appeal was dismissed.

In summary, the Court of Appeal upheld the sentence imposed by the sentencing judge, finding that it was not manifestly excessive and appropriately reflected the seriousness of the applicant's offences. The applicant's application for leave to appeal was dismissed.

Orders