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Court of Criminal Appeal 11 April 2003

Regina v Guy Pierce Gardener

[2003] NSWCCA 2

Theft & propertyFirearms & weapons

Citation: Regina v Guy Pierce Gardener [2003] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 11 April 2003
Judges: Ipp JA, Hulme J, Bell J

Background

The respondent was sentenced in the District Court by Tupman DCJ following pleas of guilty to three counts of armed robbery. The offences were committed in close succession, involving separate incidents on 4 and 5 September 2001, with the respondent also having an additional offence (an attempted robbery and an offence against a victim identified as Miss Kerr) taken into account. The respondent began serving his sentence from 5 March 2002.

The Crown appealed against the sentences imposed, arguing they were manifestly inadequate. The respondent had an extensive criminal history beginning in his mid-teens, including numerous prior convictions for robbery, assault, and escape from custody. A 15% discount had been applied at first instance to reflect the pleas of guilty.

The District Court had imposed sentences that the Court of Criminal Appeal found failed to reflect the seriousness of the offending or the applicable sentencing principles established in this Court's own jurisprudence.

  • Whether the sentences imposed in the District Court were manifestly inadequate having regard to the nature of the offending and the respondent's criminal history.
  • Whether the Court of Criminal Appeal should apply the principle of restraint and the double jeopardy discount applicable to Crown appeals when resentencing.
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a departure from the statutory proportion between the non-parole period and the head sentence.
  • How partially accumulated sentences should be structured across three counts.

Decision

The Court of Criminal Appeal unanimously allowed the Crown appeal, finding that the sentences imposed at first instance reflected neither the criminality involved nor the Court's guidance in R v Henry (1999) 46 NSWLR 346. The majority (Ipp JA and Bell J) agreed on the approach to resentencing, while Hulme J agreed the appeal should be allowed but would have imposed higher non-parole periods.

Bell J, writing the leading judgment, proposed head sentences of eight years and six months on count 1 and six years and nine months on each of counts 2 and 3. These were themselves discounted from what would otherwise have been imposed at first instance, to reflect two considerations: the principle that a Crown appeal carries an element of double jeopardy for the respondent, and an element of restraint given the sentences imposed on a co-offender (Foster senior).

Bell J found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying non-parole periods below the standard 75% proportion. The special circumstances arose from the partial accumulation of the sentences on counts 2 and 3, and from the respondent's need for extended post-release supervision given his background and the nature of his offending.

Hulme J agreed the sentences were inadequate but dissented on the appropriate non-parole periods. In his view, no basis existed to reduce the non-parole periods below 75% of the head sentences absent the accumulation effect, and the starting dates of the second and third sentences should have been structured to extend the effective non-parole period by 12 months for each additional offence. He observed that the respondent's record showed no indication of a desire for change, and that sentences needed to reflect meaningful deterrence for successive offending.

Orders Made

  • Crown appeal allowed.
  • Sentences imposed in the District Court quashed.
  • In lieu thereof, the respondent sentenced as follows:
  • Count 1: Eight years and six months imprisonment from 5 March 2002, expiring 4 September 2010; non-parole period of five years and six months (earliest parole eligibility 4 September 2007, subject to counts 2 and 3).
  • Count 2: Six years and nine months imprisonment from 5 March 2004, expiring 4 December 2010; non-parole period of four years (earliest parole eligibility 4 March 2008, subject to count 3).
  • Count 3: Six years and nine months imprisonment from 5 September 2004, expiring 4 June 2011; non-parole period of four years from 5 September 2004 (earliest parole eligibility 4 September 2008).

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentences for armed robbery must reflect the seriousness of the statutory offences and align with the Court's established sentencing range guidance in R v Henry, even where a guilty plea discount has been applied.
  • In Crown appeals, two separate considerations reduce the sentence below what would have been imposed at first instance: the double jeopardy principle inherent in the appeal process, and the need for restraint in light of sentences imposed on co-offenders.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can arise from a combination of partial accumulation of sentences and the need for extended post-release supervision, even where the respondent's history might otherwise militate against leniency.
  • A dissenting judgment on quantum (Hulme J) illustrates that the Court may disagree on whether the accumulation of sentences alone provides sufficient justification for reducing non-parole periods below the statutory proportion, without any independent subjective basis for special circumstances.
  • An extensive juvenile and adult criminal record, while evoking sympathy where disadvantage is causally connected to offending, does not of itself reduce the need for sentences to reflect general and specific deterrence, particularly where the record shows no indication of rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Veen (No.2) v The Queen (1988) 164 CLR 465
- Everett v The Queen (1994) 68 ALJR 875
- Smith v The Queen [2001] HCA 50
- R v Baker [2000] NSWCCA 85
- R v Bragias (1997) 92 A Crim R 330
- R v Engert (1995) 84 A Crim R 67
- R v Diamond (unreported, NSWCCA, 18 February 1993)
- Regina v Guthrie [2002] NSWCCA 77
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Scognamiglio (1991) 56 A Crim R 81