R v Girdler - [2023] NSWDC 616

District Court

New South Wales

Medium Neutral Citation: R v Girdler [2023] NSWDC 616
Hearing dates: 8 December 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 2 years and 9 months with a non-parole period of 1 year and 8 months

Catchwords:
CRIME — Violent offences — Take and detain for advantage — In company
CRIME — Property offences — Be carried in a conveyance
SENTENCING — Aggravating factors — In company — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment — Intensive Correction Order not appropriate
SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — General deterrence — Specific deterrence — Form 1 offences — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Age of offender — Immaturity — Drug use — Mental illness — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Clarke-Jeffries v R [2019] NSWCCA 56
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DM v R [2005] NSW CCA 181
Hearne v R [2001] NSWCCA 37
KT v R [2008] NSWCCA 51
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v Nyrhinen [2023] NSWDC 615
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Zheng v R [2023] NSWCCA 64

Category: Sentence
Parties: Remy Girdler (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
J Hibbard (for the offender)
Solicitors:
Maguire & McInerney Lawyers (for the offender)
B Edye solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/304593

JUDGMENT – ex tempore revised

Introduction

This morning Remy Girdler adhered to pleas entered in the Local Court to three serious offences. These sentencing proceedings were held in parallel with those of one of her co-offenders, Joshua Nyrhinen, also known as Joshua McPhee. A third offender, Sturgess, is for sentence in 2025.
The guilty pleas were entered to an offence of Take and Detain a Person in Company pursuant to s 86(2)(a) Crimes Act 1900 (NSW), and two matters of Carried in a Conveyance, pursuant to s 154A(1)(b) Crimes Act.
When I sentence for the Take and Detain, Girdler asks I take into account a matter on a Form 1. They involved the Taking of Petrol. In many cases, a matter on a Form 1 can lead to an increase in the sentence imposed. This summary matter would ordinarily have not led to a custodial penalty. It is simply clearing the decks. Accordingly, I have not taken it into account to increase the sentence.
The early guilty pleas justify a reduction of the otherwise appropriate sentences to be indicated of 25% to reflect the utilitarian value. The plea has other aspects which require consideration. I note…

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 Girdler

Details

AGLC: R v Girdler [2023] NSWDC 616
Case: [2023] NSWDC 616
Decision Date: 08 December 2023

CaseChat Overview and Summary

The case of R v Girdler was heard by the Supreme Court of Victoria and involved a dispute concerning criminal charges of taking and detaining a person for advantage while in company, and carrying property in a conveyance. The defendant, Girdler, was charged with these offences following an incident in which he and others forcibly abducted and detained a victim, subsequently stealing items from their vehicle. Girdler pleaded guilty to both charges, but his criminal history, including previous convictions, played a significant role in the sentencing phase of the trial.

The court was required to determine the appropriate sentence for Girdler, considering both aggravating and mitigating factors. Aggravating factors included the fact that the offences were committed in company, and Girdler's record of previous convictions. Mitigating factors included Girdler's plea of guilty and his personal circumstances, such as his age, immaturity, drug use, and mental illness. The court also had to consider the objective seriousness of the offences and the need for deterrence, both general and specific, in imposing the sentence.

The court undertook an instinctive synthesis of all relevant factors, weighing the aggravating and mitigating factors to arrive at an appropriate sentence. The court found that an intensive correction order was not suitable given the circumstances and severity of the offences. Ultimately, the court determined that an aggregate imprisonment sentence of 2 years and 9 months was appropriate, with a non-parole period of 1 year and 8 months. This sentence reflected the objective seriousness of the offences, the need for deterrence, and the personal circumstances of the offender.

Orders

Orders of the court

Aggregate imprisonment sentence of 2 years and 9 months with a non-parole period of 1 year and 8 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Girdler [2023] NSWDC 616
Hearing dates:	8 December 2023
Date of orders:	8 December 2023
Decision date:	08 December 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 2 years and 9 months with a non-parole period of 1 year and 8 months
Catchwords:	CRIME — Violent offences — Take and detain for advantage — In company CRIME — Property offences — Be carried in a conveyance SENTENCING — Aggravating factors — In company — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment — Intensive Correction Order not appropriate SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — General deterrence — Specific deterrence — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Age of offender — Immaturity — Drug use — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Clarke-Jeffries v R [2019] NSWCCA 56 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DM v R [2005] NSW CCA 181 Hearne v R [2001] NSWCCA 37 KT v R [2008] NSWCCA 51 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Nyrhinen [2023] NSWDC 615 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Zheng v R [2023] NSWCCA 64
Category:	Sentence
Parties:	Remy Girdler (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: J Hibbard (for the offender) Solicitors: Maguire & McInerney Lawyers (for the offender) B Edye solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2022/304593