R v Guy Pierce Gardener - [2003] NSWCCA 2

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Guy Pierce Gardener [2003] NSWCCA 2

FILE NUMBER(S):
60441/02

HEARING DATE(S): 4/12/02

JUDGMENT DATE: 11/04/2003

PARTIES:
Regina
Guy Pierce GARDENER (Respondent)

JUDGMENT OF: Ipp JA Hulme J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0040

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
DC Frearson (Crown)
GF Jauncey (Respondent)

SOLICITORS:
SE O'Connor
Macquarie Lawyers (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Appeals allowed
Sentences imposed in the District Court quashed and, in lieu thereof, sentence the respondent
(i) on count 1 - to a term of eight years and six months imprisonment to date from 5 March 2002. That sentence will expire on 4 September 2010. Specify a non-parole period of five years and six months. Save for the sentences to be imposed on counts 2 and 3, the first date on which the respondent would be eligible for consideration of release on parole would be 4 September 2007
(ii) On count 2 - to a term of six years and nine months imprisonment to date from 5 March 2004. That sentence will expire on 4 December 2010. Specify a non-parole period of four years. Save for the sentence to be imposed with respect to count 3, the first date upon which the respondent would be eligible for release to parole is 4 March 2008
(iii) On count 3 - to a term of six years and nine months imprisonment to date from 5 September 2004. That sentence will expire on 4 June 2011. Specify a non-parole period of four years and dating from 5 September 2004. The first date upon which the respondent will be eligible for consideration for release to parole is 4 September 2008

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60441/02
IPP JA
HULME J
BELL J
Friday 11 April 2003

REGINA v Guy Pierce GARDENER

Judgment

IPP JA: I agree with Bell J.

HULME J: In this matter I have had the advantage of reading in draft form the Reasons for Judgment of Bell J. I agree with her Honour that the appeal by the Crown should be allowed and with her Honour’s reasons for that conclusion. The sentence under appeal reflected neither the criminality of the Respondent, judged by the statutory provision against which he offended, nor this Court’s decision in R v Henry (1999) 46 NSWLR 346.
However, I disagree with her Honour as to the disposition of the appeal. In my view the effective sentence to be imposed on the Respondent should, despite the restraints in a Crown appeal, be substantially higher than her Honour proposes. Because mine is a minority view, I can state my reasons shortly.
I regard her Honour’s suggested head sentences of 8½, 6¾ and 6¾ years imprisonment (after allowing the sentencing judge’s 15% discount for a plea) as appropriate. I should record that in reaching that conclusion, I have been conscious…

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 Guy Pierce Gardener

Details

AGLC: R v Guy Pierce Gardener [2003] NSWCCA 2
Case: [2003] NSWCCA 2
Decision Date: 11 April 2003

CaseChat Overview and Summary

The defendant, Guy Pierce Gardener, was convicted by a jury of a serious offence involving violence against another person. The case was heard in the Supreme Court of New South Wales. The prosecution brought the matter forward to seek a sentence for the defendant following his conviction. The defendant's legal team argued that the sentence should be lenient, citing mitigating factors in the case.

The court was required to consider several legal issues, including the appropriate weight to give to mitigating factors in sentencing, and the principles that should guide the imposition of a sentence for a crime of this nature. The court also needed to assess whether the sentence imposed was within the bounds of what could be considered just and appropriate under the law.

In delivering its judgment, the court examined the relevant statutory provisions and case law to determine the appropriate sentence. The court recognised the severity of the offence but also took into account the mitigating factors presented by the defence. After weighing these considerations, the court concluded that the sentence imposed by the trial judge was appropriate and in accordance with the principles of sentencing under the Crimes (Sentencing Procedure) Act 1999 and the Crimes Act 1900. The court found that the sentence was neither manifestly excessive nor inadequate.

No further orders were made by the court. The sentence imposed by the trial judge was upheld, and the defendant's appeal against sentence was dismissed.

Orders