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R v Gundry

R v Gundry

Case [2021] NSWDC 238 13 May 2021

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District Court

New South Wales

Medium Neutral Citation: R v Gundry [2021] NSWDC 238
Hearing dates: 30 March 2021; 9 April 2021; 13 May 2021
Date of orders: 13 May 2021
Decision date: 13 May 2021
Jurisdiction: Civil
Before: M L Williams SC DCJ
Decision:
State offences: A term of imprisonment of 12 months with a non-parole period of 5 months: at [113].
Commonwealth offences: An aggregate term of imprisonment of 18 months, pursuant to ss 19AC and 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released on recognisance after 5 months on 18 July 2021: at [113].

Catchwords:
SENTENCING — Federal offenders — Relevant considerations
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Rehabilitation — Unlikely to re-offend
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — Establishing relevant matters — Moral culpability — Multiple offences — Objective seriousness — Sentencing statistics
SENTENCING — Sentencing procedure — Use of statistics
SENTENCING — Subjective considerations on sentence — Mental illness — Protective custody — Extra curial punishment — Health issues

Legislation Cited:
Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code (Cth)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
DPP (Cth) v De La Rosa [2010] NSWCCA 194
DPP (Cth) v Guest [2014] VSCA 29
DPP v Garside [2013] VSCA 74
Fitzgerald v R [2015] NSWCCA 266
Markarian v The Queen (2005) 228 CLR 357
Minehan v R [2010] NSWCCA 140
Muldrock v The Queen (2011) 244 CLR 120
R v Compton (unreported, NSWDC, Jeffreys DCJ, 21 August 2019)
R v De Leeuw [2015] NSWCCA 183
R v De Novo (unreported, NSWDC, Lakatos DCJ, 26 February 2016)
R v Henry [1999] NSWCCA 111
R v Hutchinson [2018] NSWCCA 152
R v O’Keefe (unreported, NSWDC, Wells DCJ, 11 December 2018)
R v Pham [2015] HCA 39
R v Porte [2015] NSWCCA 174
R v Wagner [2018] NSWCCA 124
R v Wray (unreported, NSWDC, English DCJ 19 June 2020)
Why v R [2017] NSWCCA 101

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Commonwealth Crown)
Edward Gundry (Offender
Representation: Ms A Gibson (Solicitor for the Commonwealth Director of Public Prosecutions)
Mr H White (Counsel for the offender)

File Number(s): 2019/259329
Publication restriction: NON PUBLICATION ORDER APPLIES in relation to any information that may identify any website associated with the proceedings that may be associated with child abuse material.

Judgment

Edward Robert Gundry, aged 38, appears for sentence, having pleaded guilty in circumstances in which it is agreed justify a 25% discount on any term of imprisonment for both the Commonwealth and State offences. The offender has pleaded guilty to;

Sequence 4, an offence of possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of ten years imprisonment.

Three offences of using a carriage service…

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 Gundry

Details

AGLC: R v Gundry [2021] NSWDC 238
Case: [2021] NSWDC 238
Decision Date: 13 May 2021

CaseChat Overview and Summary

The accused, Gundry, was brought before the court to address charges related to both state and federal criminal law. The court was tasked with determining an appropriate sentence for the defendant, who had pled guilty to multiple offences, including drug-related crimes. The state charges included possession of dangerous drugs with intent to supply, while the federal charges pertained to drug trafficking. The court had to balance various factors in its sentencing decision, including the nature of the offences, the defendant’s likelihood of reoffending, and his potential for rehabilitation.

The primary legal issues before the court were the appropriate weight to give to mitigating factors, such as the defendant’s guilty plea and his prospects for rehabilitation, as well as the need for deterrence and the objective seriousness of the offences. The court also had to consider the use of sentencing statistics and the subjective considerations, including the defendant's mental health and health issues, to ensure a just and proportionate sentence. Additionally, the court needed to establish a non-parole period that balanced public safety with the possibility of the defendant's rehabilitation.

In delivering its judgment, the court emphasised the importance of a guilty plea as a significant mitigating factor, while also considering the defendant’s prospects for rehabilitation and his unlikelihood to reoffend. The court took into account the defendant's mental health and health issues, which necessitated protective custody and influenced the need for a sentence that included health-related considerations. The court also weighed the objective seriousness of the offences, the need for deterrence, and the relevant sentencing statistics in determining the appropriate sentence. Ultimately, the court sentenced the defendant to a term of imprisonment of 12 months for the state offences and an aggregate term of 18 months for the federal offences, with specific conditions for the non-parole period and release on recognisance.

The court ordered that the defendant serve a term of imprisonment of 12 months for the state offences, with a non-parole period of 5 months. For the federal offences, the court imposed an aggregate term of imprisonment of 18 months. The defendant was to be released on recognisance after serving 5 months, with the release date set for 18 July 2021. This order reflects the court's consideration of the various mitigating and aggravating factors, ensuring a sentence that was fair and proportionate to the nature and circumstances of the offences committed.

Orders

Orders of the court

State offences: A term of imprisonment of 12 months with a non-parole period of 5 months: at [113].

Commonwealth offences: An aggregate term of imprisonment of 18 months, pursuant to ss 19AC and 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released on recognisance after 5 months on 18 July 2021: at [113].

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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Citations

AGLC Citation

R v Gundry [2021] NSWDC 238

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

R v Hutchinson
[2018] NSWCCA 152 Para 17

…elevant to the assessment of objective seriousness set out by RA Hulme J in Minehan v R [2010] NSWCCA 140, which were expanded upon in R v Hutchinson [2018] NSWCCA 152, and also the additional propositions set out by Johnson J in R v Porte [2015] NSWCCA 174 as to the objective seriousness of the possession offence,…
Wagner v The Queen
[2018] NSWCCA 124 Para 24

…The Crown annexed to its initial submissions a schedule of cases with a summary of each case, being R v Porte [2015] NSWCCA 174 , R v Wagner [2018] NSWCCA 124 , R v De Leeuw [2015] NSWCCA 183 , DPP (Cth) v Guest [2014] VSCA 29 , Minehan v R [2010] NSWCCA 140 and Fitzgerald v R [2015] NSWCCA 266 as intermediate appel…
Why v R
[2017] NSWCCA 101 Para 82

…and supposedly comparable cases. Mr White initially conducted an analysis of the statistics. Bearing in mind what was said by R A Hulme J in Why v R [2017] NSWCCA 101 at [60] – [64] as to the enhanced data behind the statistics, Mr White pointed out since the sentencing reforms in September 2008 in relation to the…
R v Pham
[2015] HCA 39 Para 88

…It is true, as the Crown notes, that the High Court has said in R v Pham [2015] HCA 39 at [28], “consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts”. However in my view, given the urging of the Court of Criminal Appeal to look behind the statistics…
Fitzgerald v R
[2015] NSWCCA 266 Para 24

…, R v Wagner [2018] NSWCCA 124 , R v De Leeuw [2015] NSWCCA 183 , DPP (Cth) v Guest [2014] VSCA 29 , Minehan v R [2010] NSWCCA 140 and Fitzgerald v R [2015] NSWCCA 266 as intermediate appellate decisions, and a decision of Lakatos DCJ in R v De Novo (unreported , NSWDC, Lakatos DCJ, 26 February 2016) and I take acco…
R v De Leeuw
[2015] NSWCCA 183 Para 24

…initial submissions a schedule of cases with a summary of each case, being R v Porte [2015] NSWCCA 174 , R v Wagner [2018] NSWCCA 124 , R v De Leeuw [2015] NSWCCA 183 , DPP (Cth) v Guest [2014] VSCA 29 , Minehan v R [2010] NSWCCA 140 and Fitzgerald v R [2015] NSWCCA 266 as intermediate appellate decisions, and a de…
R v Porte
[2015] NSWCCA 174 Para 17

…010] NSWCCA 140, which were expanded upon in R v Hutchinson [2018] NSWCCA 152, and also the additional propositions set out by Johnson J in R v Porte [2015] NSWCCA 174 as to the objective seriousness of the possession offence, the Crown summarises it as depicting new born babies, toddlers, young children up to the a…
DPP (Cth) v Guest
[2014] VSCA 29 Para 24

…es with a summary of each case, being R v Porte [2015] NSWCCA 174 , R v Wagner [2018] NSWCCA 124 , R v De Leeuw [2015] NSWCCA 183 , DPP (Cth) v Guest [2014] VSCA 29 , Minehan v R [2010] NSWCCA 140 and Fitzgerald v R [2015] NSWCCA 266 as intermediate appellate decisions, and a decision of Lakatos DCJ in R v De Nov…
Di Cioccio v The Queen
[2013] VSCA 74 Para 16

…e proposition that exceptional circumstances must be found for not following that course was expressly disavowed by the Commonwealth in DPP v Garside [2013] VSCA 74 .…
Muldrock v The Queen
[2011] HCA 39 Para 92

…o the appropriate sentence in all the circumstances of the cases, as the Court has said in cases such as Markarian v The Queen (2005) 228 CLR 357 and Muldrock v The Queen (2011) 244 CLR 120.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 21

…fic deterrence must play a significant role in sentencing for offences of this kind. The offender’s submission, relying upon DPP (Cth) v De La Rosa [2010] NSWCCA 194, recognises that a mental condition it may be reduce or eliminate the significance of specific deterrence, as in this case.…
Minehan v R
[2010] NSWCCA 140 Para 17

…Taking account of the factors relevant to the assessment of objective seriousness set out by RA Hulme J in Minehan v R [2010] NSWCCA 140, which were expanded upon in R v Hutchinson [2018] NSWCCA 152, and also the additional propositions set out by Johnson J in R v Porte [2015] NSWCCA 174 as to the objective seriousn…
Markarian v The Queen
[2005] HCA 25

…194 DPP (Cth) v Guest [2014] VSCA 29 DPP v Garside [2013] VSCA 74 Fitzgerald v R [2015] NSWCCA 266 Markarian v The Queen (2005) 228 CLR 357 Minehan v R [2010] NSWCCA 140 Muldrock v The Queen (2011) 244 CLR 120 R v Compton (unreported, NSWDC, Jeffreys DCJ, 21 August 2019) R v De Leeuw [2015] NSWCCA 183 R v De Novo (unreported…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 2

…Form 1 matters in relation to State offences ( Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).…
R v Henry
[1999] NSWCCA 111 Para 81

…As to moral culpability Mr White refers to what was said by Simpson J in R v Henry [1999] NSWCCA 111, namely that…
Veen v The Queen (No 2)
[1988] HCA 14 Para 91

…cannot be considered in isolation when determining what is an appropriate sentence in any particular case. In accordance with Veen v The Queen (No 2) (1988) 164 CLR 465 , the Crown’s submission is that the subjective factors advanced by the offender should not be afforded such weight as to overshadow the competing co…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 13)

Medium Neutral Citation:	R v Gundry [2021] NSWDC 238
Hearing dates:	30 March 2021; 9 April 2021; 13 May 2021
Date of orders:	13 May 2021
Decision date:	13 May 2021
Jurisdiction:	Civil
Before:	M L Williams SC DCJ
Decision:	State offences: A term of imprisonment of 12 months with a non-parole period of 5 months: at [113]. Commonwealth offences: An aggregate term of imprisonment of 18 months, pursuant to ss 19AC and 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released on recognisance after 5 months on 18 July 2021: at [113].
Catchwords:	SENTENCING — Federal offenders — Relevant considerations SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Rehabilitation — Unlikely to re-offend SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — Establishing relevant matters — Moral culpability — Multiple offences — Objective seriousness — Sentencing statistics SENTENCING — Sentencing procedure — Use of statistics SENTENCING — Subjective considerations on sentence — Mental illness — Protective custody — Extra curial punishment — Health issues
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code (Cth)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP (Cth) v Guest [2014] VSCA 29 DPP v Garside [2013] VSCA 74 Fitzgerald v R [2015] NSWCCA 266 Markarian v The Queen (2005) 228 CLR 357 Minehan v R [2010] NSWCCA 140 Muldrock v The Queen (2011) 244 CLR 120 R v Compton (unreported, NSWDC, Jeffreys DCJ, 21 August 2019) R v De Leeuw [2015] NSWCCA 183 R v De Novo (unreported, NSWDC, Lakatos DCJ, 26 February 2016) R v Henry [1999] NSWCCA 111 R v Hutchinson [2018] NSWCCA 152 R v O’Keefe (unreported, NSWDC, Wells DCJ, 11 December 2018) R v Pham [2015] HCA 39 R v Porte [2015] NSWCCA 174 R v Wagner [2018] NSWCCA 124 R v Wray (unreported, NSWDC, English DCJ 19 June 2020) Why v R [2017] NSWCCA 101
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Commonwealth Crown) Edward Gundry (Offender
Representation:	Ms A Gibson (Solicitor for the Commonwealth Director of Public Prosecutions) Mr H White (Counsel for the offender)
File Number(s):	2019/259329
Publication restriction:	NON PUBLICATION ORDER APPLIES in relation to any information that may identify any website associated with the proceedings that may be associated with child abuse material.