R v Jamie Dale Gardiner

[2015] NSWDC 90

District Court

New South Wales

Medium Neutral Citation:	R v Jamie Dale GARDINER [2015] NSWDC 90
Hearing dates:	4 June 2015 and 11 June 2015
Date of orders:	11 June 2015
Decision date:	11 June 2015
Jurisdiction:	Criminal
Before:	Judge A Haesler SC DCJ
Decision:	Take/detain person - taken into account on a Form 1 Break & Enter - convicted and sentenced to a term of imprisonment of 18 months, consisting of a non-parole period of 9 months, to commence on 5 November 2014 and expire on 4 August 2015. Robbery armed with offensive weapon - Taking into account a finding of special circumstances and the matter on the Form 1, convicted and sentenced to a term of imprisonment, to be partly consecutive on the sentence which has been imposed on you today, of 3 years 9 months, consisting of a non-parole period of 1 year 9 months, to commence on 5 February 2015 and expire on 4 November 2016. Eligible for consideration for release to parole on 4 November 2016 to serve the balance of term of 2 years to commence on 5 November 2016 and expire on 4 November 2018, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary. The total effective sentence is 4 years to commence on 5 November 2014 and expire on 4 November 2018.
Catchwords:	Break & Enter; Robbery armed with offensive weapon; mental health. Form 1; community protection.
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Cahyadi v R [2007] NSWCCA 1 DPP (Cth) v Del la Rosa [2010] NSWCCA 194 R v Engert (1996) 84 A Crim R 67 Henry v R (1999) 46 NSWLR 346 R v Henry [2007] NSWCCA 90 R v Hopkins [2004] NSWCCA 105 R v Israil [2002] NSWCCA 255 R v Knight (2005) 155 A Crim R 252 at [112] R v M.A.K., R v M.S.K. [2006] NSWCCA 381 Markarian v The Queen (2005) 228 CLR 357 Muldrock v the Queen (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38 R v Paliijan [2010] NSWCCA 142 Postiglione v The Queen (1997) 189 CLR 295 Potts v R [2012] NSWCCA 229 R v Storey [1998] 1 VR 359 R v Verdins [2007] VSCA 102 Weininger v The Queen (2003) 212 CLR 629 R v Windle [2012] NSWCCA 222 R v Wright (1997) 93 A Crim R 48
Category:	Sentence
Parties:	Jamie Dale GARDINER (Offender) Crown (Director of Public Prosecutions)
Representation:	Solicitors: Ms K Bagot (Solicitor) Legal Aid New South Wales) Ms C Moore (Solicitor Director of Public Prosecutions)
File Number(s):	2014/00135296

Judgment

Introduction

1. Jamie Gardiner is no stranger to the courts or to gaol. Born in 1971 he first came before the Children’s Court in 1988 and the Local Court the following year for multiple break and enter offences. Apart from a gap from 1999 to 2003 he has regularly been before the courts for stealing, breaking and entering and other relatively minor offences. In 2013 he was returned to custody to serve balance of parole. He was released on 13 January 2014 at the expiry of his sentence. As the sentence had been served he was not subject to any supervision, nor did he receive any support apart from that offered by his parents and the local hospital at Singleton.

2. The matters now for sentence occurred on 5 May 2014. He has been in custody since that date. He hopes to be released soon. His second offence and the matter on the Form 1 mean that cannot happen. He must serve a substantial sentence.

3. Mr Gardiner has throughout his adult life had mental health and drug and alcohol problems. Last year while on remand he was scheduled pursuant to s 55 Mental Health (Forensic Provisions) Act 1990. He spent a month as an involuntary patient. The nature and extent of his mental health problems is an important factor in this sentencing exercise. It is not without controversy.

4. The first matter for sentence relates to a break, enter and damage property in Kent St. Sydney in the early hours of 5 May 2014. The second offence for sentence is the robbery while armed with an offensive weapon of Mr Wise that occurred later that morning.

5. Break enter is a serious offence. It carries a maximum penalty of 14 years imprisonment. Robbery while armed with a knife, an offensive weapon, is a very serious offence it carries a maximum penalty of 20 years imprisonment. Those maximums are important guides to the exercise of my sentencing discretion. In exercising my discretion I have also the benefit of the armed robbery guideline from Henry v R (1999) 46 NSWLR 346.

6. When sentencing for the armed robbery I am asked to take into account on a Form 1 Crimes (Sentencing Procedure) Act 1999, a further very serious matter involving the taking and detaining of Mr Wise on 5 May 2014. I will do so.

Summary of Facts

7. At about 2.50AM on 5 May 2014 Mr Gardiner broke into the Portside Conference Centre in Kent Street, Sydney. In doing so he damaged a door handle. When inside he disturbed property, including taking food and drink from a kitchenette. He was detected by CCTV. Police attended. They saw signs of disturbance including a cordless power drill and a knife on the floor of a conference room. They looked through the premise but found no one and left. Mr Gardiner had not left. He was hiding in a cupboard. CCTV captures him leaving before 8.40 that morning. He took the knife with him.

8. At about 8.40 that morning Mr Wise was parking his car in a building at 219 Kent Street. Mr Gardiner had entered the building as the car park gates closed. He came up to Mr Wise and said, “Give me your money, give me your keys or I will fucking kill you.” Mr Wise saw the knife. He gave the offender $70 and his car keys. The offender handed him back the keys and said “I want you to drive me to Kings Cross.” Those matters briefly summarise the offences for sentence, as reflected in the court attendance notices in Exhibit A.

9. What occurs next is subject to the Form 1. Mr Gardiner told Mr Wise he would be killed if he did not cooperate. He was still armed. He was agitated and sounded desperate. He later said, “I am not going to kill you but I will kill someone. I will be dead in a few days.”

10. He said he needed money for medication and that he needed to go to an ATM. The car was driven to Kings Cross and parked in Kellett Street. The two men then walked around at Mr Gardiner’s direction. Ms Jacqueline Van Goeverden noticed their behaviour and Mr Wise’s “miserable expression.” She called 000.

11. Ms Michelle Wilson also noticed their behaviour and disparity in dress. She feared for Mr Wise’s safety. She pretended to know Mr Wise and joined the two men. She was not then aware of the knife but when Mr Wise whispered to her that Gardiner had one she bravely continued while maintaining a careful distance. She suggested they go to a convenience store. There she was able to alert the storekeeper who pressed his duress alarm. In the meantime Mr Wise got $200 from the ATM and gave it to Gardiner. Ms Wilson delayed Gardiner until police arrived at about 9.20AM. Mr Gardiner was confronted. He told police about the knife. He was searched. The knife was seized. He was arrested. He told police Wilson had given him a lift and was giving him a loan. At the police station he participated in a recorded interview. He was at times unresponsive and incoherent. He gave a garbled account of his actions that morning and attempted to explain his behaviour.

Objective Seriousness.

12. Offences of break and enter cause great cost to the community and distress to those who own and work in premises so entered. Here thankfully no one was present, damage was minimal and nothing was taken.

13. The attack on Mr Wise however was objectively a very serious offence. In what he was entitled to assume was a secure car park Mr Wise was confronted by an obviously disturbed man who threatened to kill him while wielding a large knife. He handed over what cash he had and his car keys. As the Chief Justice said in Henry v R at [99].

“Armed robbery is not simply a crime against property. It is a crime against persons. The fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which required condign punishment.”

14. The offence appears spontaneous. Only a small amount was taken and there was no actual violence shown. However the knife, as was obvious to Mr Wise, was capable of killing or inflicting serious injury and he was confronted when alone without recourse to help.

15. Mr Gardiner was obviously disturbed and desperate at the time of both offences. There is also evidence he suffered from a mental illness and was under the influence of a drug. While these matters are relevant to my assessment of the overall sentence and its structure my focus here is on the circumstances of the offences not the offender: see Muldrock v the Queen (2011) 244 CLR 120 at [27]. Their only relevance at this stage is to enable some understanding of the terror Mr Wise must have felt when he was confronted and threatened by an offender who was obviously disturbed, irrational and threatening in behaviour and demeanour.

16. Mr Wise’s ordeal did not end there. For over an hour he was not to know his fate. He was kept and directed under threat of the knife and Mr Gardiner’s odd behaviour to drive to and then walk around Kings Cross and Darlinghurst looking for an ATM. He was induced to hand over $200.

Form 1

17. As required by the Crimes (Sentencing Procedure) Act 1999 I take this matter into account when determining the appropriate penalty for the offence for which the offender is convicted: Attorney General’s Application No. 1: (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The court does not “in any sense” impose sentences for that offence. The decision to put matters on a Form 1 is the Director’s made knowing that fact. The matter on the Form 1 does operate here to increase the sentence that would otherwise be appropriate. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]-[54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at [39] – [42].

The Guilty Plea:

18. The guilty pleas were entered in the Local Court but only after Dr Nielssen, a respected forensic Psychiatrist, formed the view Mr Gardiner was fit to plead. The matter was delayed in the Local Court to enable this opinion to be sought. While not strictly at the earliest opportunity Ms Moore, solicitor, for the Director concedes it had considerable utilitarian value. I will reduce the sentences by 25% to reflect this. The guilty pleas will also be taken into account when I consider aspects relating to the offender’s remorse and rehabilitation prospects.

Commencement date

19. Soon after his release from gaol Mr Gardiner committed a larceny offence. He was admitted to bail. On 3 May 2014 he committed further offences including break enter and steal, and again received bail. The offences now for sentence thus occurred while on bail. The breaches of the condition not to offend while on bail aggravate the sentences that must be imposed.

20. Mr Gardiner served the non-parole periods of his Local Court sentences from 12 August 2014 until 2 May 2015. The period in custody 5 May 2014 to 12 August 2014 is solely referable to this offence. He will receive the benefit of those 68 days and the period from 3 May 2015 until today.

21. I also take into account the principle of totality; the aggregation of all of the sentences must be a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308. In doing so I also note that public confidence in the administration of justice requires my avoiding any suggestion that there is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112] & R v M.A.K., R v M.S.K. [2006] NSWCCA 381.

22. The application of those principles here are not without complications. Sentencing is not meant to be an arith mathematical exercise. It is important to avoid introducing "excessive subtlety and refinement" to the task of sentencing: Weininger v The Queen (2003) 212 CLR 629 at [24], citing R v Storey [1998] 1 VR 359 at 372. In all the circumstances I propose to start these sentences from 5 November 2014.

Accumulation and Concurrence

23. Those principles also apply when I come to consider the two matters for sentence today. The two offences involve discrete acts of criminality but one followed closely on the other. While the elements of each offence differ there are common factors in the offender’s motivation and matters raised in his subjective case. While the purposes of sentencing referable to each offence must be considered separately they too, also overlap. The sentences should be partly cumulative to ensure the total sentence reflects the total criminality of the two offences for sentence and those on which they are directly accumulated: Cahyadi v R [2007] NSWCCA 1.

The Offender

24. During his various admissions to psychiatric hospitals and gaols Mr Gardiner has had multiple diagnoses including Schizophrenia/schizoaffective disorders, poly substance abuse and personality disorder. He reports being a heavy drinker when young but more recently to not drinking but taking opiates to excess. He has attended rehabilitation centres such as William Booth and We Help Ourselves but has not stuck with their programmes.

25. At times he has been relatively sober and able to hold down jobs. He has received the Disability Support Pension since 1998. Although he has the support of his parents who live in Singleton, he has often been homeless; sleeping in toilet blocks and on trains. He has a history of drug abuse, particularly opiate based pain killers such as morphine.

26. His mother Jeanette Gardiner gave evidence on 4 June 2015. His father was also present. Their concern for their son was manifest. They have done what they can and, as she said, “been through it all” for their son. Mrs Gardiner offered to do all she and her husband could to provide their son with a stable environment on release, to keep him in touch with parole and help him get medical and psychiatric assistance. She said they would report any breaches of parole conditions.

27. Mr Gardiner of his own volition sent letters of apology to Kings Cross Police and his victims. He says in those letters he is determined to live a proper life-style and to always do the right thing. He admits his behaviour was disgraceful. While not on oath I am prepared to accept that drug free and medicated he is remorseful and shows some insight. The test will come on release.

28. Mr Gardiner’s criminal record is primarily for offences similar in nature to the break and enter offence. He has no offences of violence on his record. Obviously he cannot be treated as a first offender. The first offence occurred while on bail for similar offences. I cannot ignore the fact that previous non-custodial and custodial sentences and parole have failed to prevent reoffending. While consideration must be given to protection of the community and specific deterrence it is also clear that Mr Gardiner must be released into the community. If there is no change there will be further offending.

Mental State

29. When seen by a Clinical Nurse consultant on 6 May 2014 Mr Gardiner was noted to have poly substance abuse. He was dishevelled with pressure of speech and religious themes and in an unstable mental state: Ex B. He told a Doctor at that time. “I am falsely accused...Satan has planned this”: Dr Neilssen, exhibit 3 p 5.

30. On 16 June 2015 he was seen by Professor Greenburg a senior consultant psychiatrist who prepared a report for the Local Court: exhibit B. He found Mr Gardiner to be a reluctant historian who was refusing psychiatric medication but requesting pain killers for his neck ache. Professor Greenberg reviewed his medical records. He noted a history of drug addiction and “ruminations” on a need for pain killers. He found no evidence of psychotic illness or psychotic phenomena. He recommended abstinence and counselling.

31. In August 2014 a CT scan revealed Mr Gardiner‘s neck pain had an organic origin in disc degeneration and a pinched nerve. The nursing notes concluded “Lastly, he looks terrible.” Pain killers were prescribed: Exhibit 4.

32. By October 2014 Mr Gardiner was found to be floridly psychotic with religious and persecutory delusions. He went to the Corrective Services’ Mental Health Support Unit at the Remand Centre at Silverwater gaol, but they recommended a Community Treatment Order in order to force treatment. On 28 October 2014 he was made an involuntary patient at the mental health facility at Long Bay hospital: s 55 Mental Health (Forensic Provisions) Act. By the end of November 2014 he was much improved and settled and no longer warranted involuntary treatment: Dr Nguy, Justice Health (exhibit 2).

33. Dr Nielssen saw Mr Gardiner in late October 2014. Gardiner told him that immediately prior to the offence he had a “hot shot” and felt “possessed”. While Dr Nielssen agrees that Mr Gardiner suffers from a substance abuse disorder, unlike Professor Greenburg he also diagnoses Chronic Schizophrenia. He based this diagnosis on his examination of Mr Gardiner and a long history of “typical first rank” symptoms, bizarre explanations for those symptoms and chronic disorder of thought forms.

34. He notes “Schizophrenia is a disabling form of mental illness affecting the frontal lobes of the brain, often accompanied by gross impairment in social judgement, planning and decision making.”

35. He also noted his concern that having served his previous sentence Mr Gardiner was released in 2014 on a sub-therapeutic dose of antipsychotic medication and without provision of his pain relief medication, which is very likely to have resulted in uncomfortable withdrawal symptoms. He suggests the illicit drugs taken prior to the crimes triggered a more acute phase of his psychiatric illness contributing to his behaviour at the time. While this, he says, would have affected his decision making and capacity for self-control Mr Gardiner was not completely deprived of the ability to recognise his actions were both morally and legally wrong or to form the intent to commit the offences.

36. In his opinion Mr Gardiner requires lifelong treatment with an adequate dose of anti-psychotic medication, probably by long acting injection treatment. This needs to be supervised by a mental health service and a Community Treatment Order would be required. Post release attendance at a methadone programme is also indicated.

37. While I have great respect for Professor Greenburg, the offender’s history and the events of October 2014 lend considerable support to Dr Neilssen’s opinions, which, on balance, I prefer and accept.

Purposes of Sentencing

38. Mr Gardiner’s mental illness did play a part in the commission of these offences. I cannot however ignore the concurrent or dual diagnoses of substance abuse disorder, shared by Dr Neilssen and Professor Greenburg. It is well recognised that a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any offence, and of itself is not a matter of mitigation: see Henry (1999) at [273].

39. Mr Gardiner’s drug problem however goes hand in glove with his mental health problem. It helps explain the impulsivity of the offence and together with that illness affected his capacity to exercise proper judgment. When he is restored to the community this problem must be overcome, justifying a finding of special circumstances.

40. A court must, in any sentencing exercise, have regard to the principles of general and specific deterrence: s 3A Crimes (Sentencing Procedures) Act 1999. I must however also take into account the fact that Mr Gardiner was not “fully aware of the consequences of his or her actions”: s 21A(3)(j) Crimes (Sentencing Procedure) Act. The relevant principles were discussed and conveniently summarised in NSW DPP (Cth) v Del la Rosa [2010] NSWCCA 194 at [177] – [178] and in Victoria in R v Verdins [2007] VSCA 102 at [3].

38. As Hunt CJ at CL noted in R v Wright (1997) 93 A Crim R 48 at [50], while general deterrence should often be given little weight where an offender suffers a mental disorder, such moderation need not be great if the offender acts with knowledge of what he is doing and knowledge of the gravity of his actions. In R v Paliijan [2010] NSWCCA 142 at [27] this point was made again; the need for any reduction in sentence will depend on the circumstances of each case.

39. In Potts v R [2012] NSWCCA 229 the CCA reaffirmed that protection of society from a potentially dangerous offender was a relevant matter which, while it could not lead to a sentence disproportionate to the gravity of the offence, could offset potentially mitigating factors. But as Basten JA in R v Windle [2012] NSWCCA 222 reminded us there is also a potential for ‘unprincipled sentencing’ under the guise of community protection, particularly where mental illness operates to reduce an offender’s culpability. That judgment recognised that the criminal law is not the appropriate mechanism for protecting society where the potential danger is as a result of a mental illness.

40. There are matters here that increase the importance of particular or specific deterrence and the need to protect the public: R v Engert (1996) 84 A Crim R 67 Gleeson CJ at [71]; R v Israil [2002] NSWCCA 255 at [24]; R v Henry [2007] NSWCCA 90 at [28]. Mr Gardiner must understand that any failure to take the assistance he needs can only result in return to custody. His need for life-long medication and careful supervision and management in the community, if possible while subject to a Community Treatment Order, provide more support for a substantial finding of special circumstances. The longer Mr Gardiner can be supervised the greater the chance of his rehabilitation into the community and the greater the chance of community protection.

41. The material before me also indicates that as a result of his illness, particularly in its delusional phases, his custodial sentence has weighed more heavily on him than the persons not so afflicted: Israil at [26]; Henry (2007) at [28].

42. That said, the armed robbery offence’s impact on Mr Wise, and the community in general, remain very important factors. As the majority of the High Court noted in Munda v Western Australia [2013] HCA 38, [52] to [58], the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The courts also have a long-standing obligation to vindicate the dignity of each victim of violence; to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state against repetition of violence.

43. In many cases the conflict between a requirement to take into account retribution or general deterrence or the impact on victims has a direct and counterproductive impact on those objectives which focus on rehabilitation and avoidance of recidivism or on the recognition by the courts that those with cognitive or mental health impairments require a particularly individualised approach. A court is not obliged to average out important and competing considerations; sometimes one can be determinative: R v Hopkins [2004] NSWCCA 105. Ultimately courts, while conscious always of the need to ensure the consistent and proper application of sentencing principles, recognise that the purpose of sentencing is community protection and to achieve that aim impose sentences appropriate to the offender and their crimes.

How then to balance these conflicting matters?

47. I am indebted to counsel for their submissions.

48. The break and enter offence alone, while serious and a continuation of a long pattern of offending, would have required a custodial sentence of some form. It if standing alone would not have justified further detention. But it does not stand alone. The armed robbery was a serious example of its type. The matter on the Form 1 must also be taken into account. Regardless of the matters raised on Mr Gardiner’s behalf a full time custodial sentence of some length is required. Release will be conditional. The State Parole Authority will have to decide that release will be in the public interest: s 135 Crimes (Administration of Sentences) Act 1999. It is imperative Mr Gardiner be supervised in the community for as long as possible. Before this is done the need to protect the safety of the community will require, in my view, a mental health treatment plan to be put in place. A copy of Dr Nielssen’s report should accompany the warrant so it can be provided to Justice Health.

Sentences

49. Sequence 004 Take/detain person - taken into account on a Form 1

50. Sequence 005 Break & Enter etc do indictable off (not steal/damage)-SI

You are convicted and sentenced to a term of imprisonment of 18 months, consisting of a non parole period of 9 months, to commence on 5 November 2014 and expire on 4 August 2015.

51. Sequence 003 Robbery armed with offensive weapon-SI

Taking into account a finding of special circumstances and the matter on the Form 1, you are convicted and sentenced to a term of imprisonment, to be partly consecutive on the sentence which has been imposed on you today, of 3 years 9 months, consisting of a non parole period of 1 year 9 months, to commence on 5 February 2015 and expire on 4 November 2016.

You will be eligible for consideration for release to parole on 4 November 2016 to serve the balance of term of 2 years to commence on 5 November 2016 and expire on 4 November 2018, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary.

52. The total effective sentence is 4 years to commence on 5 November 2014 and expire on 4 November 2018.

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Decision last updated: 11 June 2015