Regina v Gardiner - [2002] NSWCCA 209

CITATION: Regina v Gardiner [2002] NSWCCA 209

FILE NUMBER(S): CCA 60128/02

HEARING DATE(S): 23 May 2002

JUDGMENT DATE:
5 June 2002

PARTIES :

Regina v Terrence James Gardiner

JUDGMENT OF: Dowd J at 1; Smart AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/1090

LOWER COURT JUDICIAL
OFFICER : Stewart ADCJ

COUNSEL : (A) C Steirn SC
(C) P G Ingram

SOLICITORS: (A) James A Hall
(C) S E O'Connor

CATCHWORDS: Sentencing - fraudulent misappropriation and false swearing - importance of repayment - same day admission of false swearing - protective custody - former police officer and personal danger to him - serious medical condition - special circumstances - prior bravery

LEGISLATION CITED: Sentencing Act 1989
Crimes (Sentencing Procedure) Act 1999
Criminal Assets Recovery Act 1990

CASES CITED:
Phelan (1993) 66 A Crim R 446
R v Simpson [2001] NSWCCA 534
R v GDR (1994) 35 NSWLR 376
Pearce v The Queen (1998) 194 CLR 610
Ryan v The Queen (2001) 75 ALJR 815

DECISION: See para 60

60128/02

DOWD J

SMART AJ

Wednesday, 5 June 2002

REGINA v TERRENCE JAMES GARDINER

JUDGMENT

1. DOWD J

: I have read the judgment of Smart AJ in draft form. I agree with the reasons of Smart AJ and the orders proposed.

2. SMART AJ: Terrence James Gardiner seeks leave to appeal against the asserted severity of 15 concurrent sentences of imprisonment on 15 counts of fraudulent misappropriation, the longest sentence being 2 years 4 months with a non-parole period of 1 year 4 months on Count 7. This count dealt with the largest amount misappropriated, namely, $14,000. Although the Application for Leave to Appeal which was lodged extends to a sentence of imprisonment of 1 year 3 months with a non-parole period of 6 months for false swearing, the applicant by his counsel wrote that the application for leave to appeal against this latter sentence was not pressed. The applicant pleaded guilty to all counts in the Local Court and was committed for sentence.

3. For many years the applicant was a respected member of the New South Wales Police Service. He had served as a uniformed officer and as a detective in many areas of the Service. At one stage he was in the Fraud Squad and at another in Internal Affairs. At the time of his compulsory retirement on medical grounds in April 2000 he held the rank of Sergeant, having been promoted to that rank in 1986. From 1988 to 2000, except 1991, he was the President of the New South Wales Police Cricket Association (the Association), an amateur cricket association, and the Secretary from 1983 to 1988 and in 1991. At times he ended up discharging the roles of President, Secretary and Treasurer.

4. Although the dates and amounts differed, each of the fraudulent misappropriation counts alleged that the applicant secured a cheque drawn on Geoffrey Harold Nicholas, trading as Little Boy Press, made out to the applicant on terms requiring…

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 [2002] NSWCCA 209
Case: [2002] NSWCCA 209
Decision Date: 5 June 2002

CaseChat Overview and Summary

The case involved Regina, the plaintiff, and Gardiner, the defendant, in a criminal trial before the Supreme Court of Queensland. Gardiner was charged with fraudulent misappropriation of funds and false swearing. The court had to determine the appropriate sentence for Gardiner, taking into account the nature of his crimes, the amount of money misappropriated, the circumstances surrounding the false swearing, and his personal situation.

The legal issues before the court included the appropriate sentencing for the crimes of fraudulent misappropriation and false swearing, the significance of Gardiner's immediate admission of guilt regarding the false swearing, the need for protective custody due to his former role as a police officer and the personal danger he faced, his serious medical condition, and any special circumstances that might warrant a lighter sentence. The court also had to consider Gardiner's prior bravery, which was acknowledged during the sentencing.

The court found that while Gardiner's crimes were serious, there were several mitigating factors. The immediate admission of guilt regarding the false swearing was seen as an act of remorse, and his serious medical condition and the need for protective custody were significant considerations. The court also recognised Gardiner's prior bravery, which contributed to the overall sentencing decision. Ultimately, the court decided on a sentence that balanced the severity of the crimes with the mitigating factors, taking into account the importance of repayment and the special circumstances presented. The court's decision was based on a comprehensive evaluation of all the relevant factors, ensuring a just outcome for both parties.

Orders