R v Gardner - [2005] NSWCCA 383

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Gardner [2005] NSWCCA 383

FILE NUMBER(S):
2005/1573

HEARING DATE(S): 28/09/2005

JUDGMENT DATE: 10/11/2005

PARTIES:
Bronwyn Margaret Gardner - Applicant
Regina - Respondent

JUDGMENT OF: McClellan CJ at CL Hislop J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0228

LOWER COURT JUDICIAL OFFICER: Robison DCJ

COUNSEL:
Ms G Bashir - Applicant
Mr G Rowling - Respondent

SOLICITORS:
SE O'Connor (Legal Aid Commission of NSW) - Applicant
S Kavanagh (Director of Public Prosecutions) - Respondent

CATCHWORDS:
Sentencing
Rehabilitation
Sentence not suspended
Sentencing Judge's discretion
No error.

LEGISLATION CITED:
Crimes Act 1900 - s 112(1)

DECISION:
(1) Leave to appeal granted
(2) Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2005/1573
McCLELLAN CJ at CL
HISLOP J
ROTHMAN J
10 November 2005

R v GARDNER

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
HISLOP J:
Introduction
On the afternoon of 6 December 1999 a person or persons gained entry to a residence at Cherrybrook and stole antique items exceeding $15,000 in value. Damage was sustained to the screen and front doors of the premises. The residence was empty at the time, one of the elderly owners being in hospital, the other in a nursing home. The applicant was linked to the crime by the presence of her fingerprint on the outside of a window of the premises. There has been no restoration of any of the stolen items to their owners, nor has any restitution been made.
The applicant pleaded guilty to a charge of break, enter and steal goods of value in excess of $15,000 contrary to the Crimes Act 1900 s 112(1) arising out of those events. The maximum penalty for such an offence is 14 years imprisonment.
On 4 April 2005, the applicant was sentenced for that offence in the District Court to imprisonment for 2 years to commence on 21 February 2005 with a non-parole period of 1 year to date from 21 February 2005 and expire on 20 February 2006.
The applicant has sought leave to appeal against that sentence on the grounds that:
1) The sentencing discretion miscarried by his Honour’s approach to determining that a full time custodial sentence was warranted.
2) An assessment of the objective seriousness of the offence infringed the principles of R v De Simoni (1981) 147 CLR 383.
3) The learned sentencing judge failed to take into account the applicant’s mental illness and its relevance at the time of sentencing.
4) The learned sentencing judge erred in failing to give sufficient weight, if any, to the fact of the staleness of the offence and the applicant’s rehabilitation.
5) The learned sentencing judge failed to take into account in sentencing that there would be exceptional hardship occasioned to the applicant’s babies.
6) A lesser sentence was warranted in law.
The sentencing proceedings
The applicant was born on 30 April 1972. She had an extensive criminal history including, among other matters,…

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 [2005] NSWCCA 383
Case: [2005] NSWCCA 383
Decision Date: 10 November 2005

CaseChat Overview and Summary

The case of R v Gardner involved an appeal against the sentencing decision made by the lower court. The applicant, Gardner, contested the severity of the sentence imposed and argued for a lesser sentence. The appeal was heard by the higher court, which was tasked with determining whether the sentencing judge had erred in their decision-making process and whether the sentence was indeed excessive.

The central legal issues before the court were whether the sentencing judge had made any errors in the sentencing process that warranted an appeal and whether the sentence imposed was excessive and should be reduced. The court had to assess the arguments presented by the applicant and consider whether the sentence was appropriate given the nature of the offence and the principles of sentencing in Australia.

The court found that the sentencing judge had not made any errors in their decision-making process and that the sentence imposed was appropriate. The court considered the principles of sentencing, including the need for punishment and rehabilitation, and concluded that the sentence was neither excessive nor inappropriate. The court also noted that the sentencing judge had broad discretion in determining the appropriate sentence and that the appeal did not demonstrate that a lesser sentence was warranted. Therefore, the court dismissed the appeal and upheld the original sentence. The final orders were to grant leave to appeal but to dismiss the appeal itself.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

I would also reject the applicant’s submission that the sentence was excessive, for the reasons which appear earlier in this judgment.Conclusion In my opinion, the applicant has not demonstrated relevant error on the part of the sentencing Judge or that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.Orders I propose the following orders:(1) Leave to appeal granted.(2) Appeal dismissed. ROTHMAN J: I agree with Hislop J.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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