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

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…

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.

Keep reading for free

Create a free CaseChat account to read R v Jamie Dale Gardiner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWDC 90
Decision Date: 11 June 2015

CaseChat Overview and Summary

In the matter of R v Jamie Dale Gardiner, the defendant was charged with offences including break and enter, and robbery armed with an offensive weapon. The case was heard in the relevant court where the defendant's mental health was also considered. The defendant had previously been detained on a Form 1, indicating a need for mental health treatment, which was a factor in the sentencing considerations.

The court was required to address several legal issues, including whether the defendant's mental health condition warranted consideration under a Form 1, and how this should impact the sentencing for the offences. The court also needed to determine the appropriate sentences for the break and enter and robbery offences, taking into account the defendant's mental health and the special circumstances of the robbery.

The court found that the defendant's mental health condition warranted continued detention under a Form 1, which was taken into account in the sentencing. Regarding the offences, the court convicted the defendant of both break and enter, and robbery armed with an offensive weapon. The court imposed a sentence of 18 months imprisonment for the break and enter offence, with a non-parole period of 9 months. For the robbery offence, the court imposed an additional sentence of 3 years 9 months, with a non-parole period of 1 year 9 months, to be partly consecutive to the break and enter sentence. The total effective sentence was determined to be 4 years, to commence on 5 November 2014 and expire on 4 November 2018.

In summary, the court convicted the defendant on both charges and sentenced him to a total effective term of 4 years imprisonment, taking into account his mental health condition and the special circumstances of the robbery. The defendant was also required to serve the balance of his term under parole supervision.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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