Regina v Gardiner - [2001] NSWSC 1147

CITATION: Regina v Gardiner [2001] NSWSC 1147

FILE NUMBER(S): SC 70064/01

HEARING DATE(S): 26/11/01, 27/11/01, 28/11/01, 29/11/01, 30/11/01, 03/12/01, 06/12/01

JUDGMENT DATE:
6 December 2001

PARTIES :

Regina v Roger William GARDINER

JUDGMENT OF: Whealy J at 1

COUNSEL : Mr T Hoyle SC - Crown
Mr J. Stratton - Prisoner

SOLICITORS: Office of the Solicitor for Public Prosecutions
Legal Aid

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED: R v Isaacs (1997) 41 NSWLR 41 374 at 378
R v Olbrich (1998) 45 NSWLR 538 at 543
McDonald (NSWCCA unreported 12 December 1995)
R v Previtera (1997) 94 A Crim R 76
Bollen v R (1998) 99 A Crim R 510
Veen (No 2) (1998) 164 CLR 465 at 473 and 477-78
R v Oinonen (1999) NSWCCA 310
A. G's Application (No 1)
R v Ponfield (1999) 48 NSWLR 327
R v McGuire (NSWCCA unreported 30 August 1995)
Regina v Troja (NSWCCA unreported 16 July 1991)
R v Alexander (1994) 74 A Crim R 141 at 144
Camilleri (NSWCCA 8 February 1990 unreported)

DECISION: Roger William Gardiner, I sentence you to a head term of 7 years and 11 months imprisonment. The sentence is to commence on 17 July 2000. I set a non-parole period of 5 years commencing on 17 July 2000 and ending on 16 July 2005. The prisoner will be eligible to be released to parole on that day, 16 July 2005. I recommend that while in custody the prisoner receive appropriate counselling including psychiatric counselling and anger management counselling.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

WHEALY J

THURSDAY 6 December 2001

70064/01 - REGINA v Roger William GARDINER

SENTENCE

1 HIS HONOUR: The prisoner, Roger William Gardiner was indicted on 26 November 2001 at Lismore on a charge of murder. To this indictment he pleaded not guilty. The trial commenced before me and a jury of 12 on that date and continued until 30 November 2001, when the prisoner was re-arraigned at his request and that of the Crown. He pleaded guilty to the charge of manslaughter. As a consequence, the jury was discharged and the prisoner was convicted of the charge of manslaughter relating to the death of the deceased Anthony Selke. The sentence hearing commenced on that day and continued on Monday, 3 December 2001. The matter was then adjourned to Sydney to today, 6 December 2001 when the sentence hearing was completed.

2 The maximum penalty for the crime of manslaughter is imprisonment for 25 years.

3 I am required to find the facts relevant to sentencing. It is necessary that the facts I find must, so far as they relate to findings of facts against the prisoner, be findings arrived at beyond reasonable doubt (Regina v Isaacs (1997) 41 NSWLR 374 at 378). The onus of proof going to matters of mitigation is on the prisoner who must establish such matters on the balance of probabilities (Regina v Olbrich (1998) 45…

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 Regina v Gardiner

Details

AGLC: Regina v Gardiner [2001] NSWSC 1147
Case: [2001] NSWSC 1147
Decision Date: 6 December 2001

CaseChat Overview and Summary

The case of Regina v Gardiner involved the defendant, Roger William Gardiner, who was convicted of manslaughter following a fatal confrontation with the deceased, Anthony Selke. Gardiner had initially pleaded not guilty to murder but later pleaded guilty to manslaughter. The court, presided over by Whealy J, was tasked with determining the appropriate sentence for Gardiner, considering the circumstances of the crime and Gardiner's background. The court found that the incident was provoked by the deceased's abusive and aggressive behaviour towards Gardiner, which led to Gardiner losing control and fatally stabbing Selke with a knife. The court considered various factors, including the degree of provocation, the lapse of time before the loss of self-control, the presence of the knife, and Gardiner's criminal history and mental health issues. The court ultimately decided on a sentence of seven years and eleven months imprisonment, with a non-parole period of five years, taking into account mitigating factors such as Gardiner's guilty plea and his mental health needs. The court also recommended that Gardiner receive psychiatric and anger management counselling during and after his incarceration.

Orders