R v Gundry

Case [2021] NSWDC 238


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

  1. 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;

  1. 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.

  2. Three offences of using a carriage service…

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Details
AGLC
R v Gundry [2021] NSWDC 238
Case
[2021] NSWDC 238
Decision Date

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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