Regina v Garner - [2004] NSWCCA 343

CITATION: Regina v GARNER [2004] NSWCCA 343

HEARING DATE(S): 29 September 2004

JUDGMENT DATE:
1 October 2004

JUDGMENT OF: Dunford J at 1; Barr J at 2; Hoeben J at 30

DECISION: Leave to appeal granted; appeal dismissed.

PARTIES :
Regina v Andrew Glen GARNER

FILE NUMBER(S): CCA 2004/1796

COUNSEL: Applicant: P Byrne SC
Respondent: J Girdham

SOLICITORS: Applicant: L De Luca & Co
Respondent: S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/07469

LOWER COURT
JUDICIAL OFFICER : Gibson QC DCJ

- 9 -

2004/1796

Dunford J
Barr J
Hoeben J

1 October 2004

Regina v Andrew Glen Garner

Judgment

1 DUNFORD J: I agree with Barr J.

2 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. On 10 October 2003 the applicant, Andrew Glen Garner, pleaded guilty to charges that may be summarised as follows –

1 On 19 March 2003 at Manly, being armed with an offensive weapon, namely a knife, he robbed Jing Juan Lin of $400; and

2 On the same day at Cromer, being armed with an offensive weapon, namely a knife, he robbed Ann Zhuang of $185 and a quantity of cigarettes.

3 When he entered his pleas the applicant asked Gibson QC DCJ, to take into account under the provisions of the Crimes (Sentencing Procedure) Act one further offence, namely the use at Cromer on 19 March 2003 of an offensive weapon with intent to prevent his lawful apprehension.

4 On the first charge his Honour imposed a non-parole period of twelve months and an overall sentence of two years. On the second his Honour imposed non-parole period of one year and six months and an overall sentence of three years. His Honour took into account the applicant’s use of the knife with intent to prevent his lawful apprehension. The effective sentence for the totality of his criminality was therefore three years with a non-parole period of one year six months.

5 At 9:05 am on Wednesday 19 March 2003 the applicant, who was dressed in dark clothing and a black beanie, entered a shop in Manly and brandished a knife at Mr Lin, the proprietor of the business. Mr Lin was afraid and retreated some way into the shop. The applicant raised the knife and pointed it at Mr Lin. Mr Lin’s wife heard the commotion and entered the shop. She too was afraid and walked to the cash register. She opened the till and the applicant told her he wanted all the money. So he stole about $400. He ran out of the shop and bystander saw him removing the beanie from his head as he went.

6 At about 11:45am on the same day the applicant entered a shop at Cromer, holding the same knife. He told the proprietor, Mrs Zhuang, to hand over her money. She went to the till and did so. Then the applicant required him to hand him a number of packets…

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 Garner

Details

AGLC: Regina v Garner [2004] NSWCCA 343
Case: [2004] NSWCCA 343
Decision Date: 1 October 2004

CaseChat Overview and Summary

In Regina v Garner, the applicant, Andrew Glen Garner, sought leave to appeal against the sentences imposed by the District Court. Garner had pleaded guilty to two counts of armed robbery and one count of using an offensive weapon with intent to prevent lawful apprehension. The primary legal issue before the court was whether the District Court judge had appropriately assessed and weighed the evidence related to Garner's mental health condition at the time of the offences and whether the overall sentence was excessive.

The court found that the District Court judge had appropriately considered Garner's mental health condition and the mitigating factors of his illness, but still concluded that there was a need for general and personal deterrence. The court held that despite Garner's mental health issues, his actions were deliberate and premeditated, and he had the capacity to consider his actions and make plans accordingly. The court further noted that the sentences imposed were within the proper range of the sentencing judge's discretion.

Ultimately, the court granted leave to appeal but dismissed the appeal, affirming the sentences imposed by the District Court. The judges concluded that the District Court had appropriately balanced the mitigating factors of Garner's mental health condition with the need for general and personal deterrence.

Orders