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Court of Criminal Appeal 10 November 2005

Regina v Gardner

[2005] NSWCCA 383

Theft & property
SENTENCING REHABILITATION SENTENCE NOT SUSPENDED SENTENCING JUDGE'S DISCRETION NO ERROR.

Citation: Regina v Gardner [2005] NSWCCA 383
Court: New South Wales Court of Criminal Appeal
Date: 10 November 2005
Judge(s): McClellan CJ at CL, Hislop J, Rothman J

Background

In December 1999, a residence at Cherrybrook was broken into while both elderly owners were absent due to illness and hospitalisation. Antique items exceeding $15,000 in value were stolen and damage was caused to the property. The applicant was linked to the offence by a fingerprint found on a window, and none of the stolen items were ever returned.

The applicant pleaded guilty to break, enter and steal contrary to s 112(1) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment. She was sentenced in the District Court on 4 April 2005 to two years imprisonment with a non-parole period of one year. By the time of the appeal, she had already begun serving that sentence.

Sentence was passed more than five years after the offence. By that time, the applicant had ceased offending and drug use since 2002, had formed a stable relationship, and had two young children. Her counsel had argued for a suspended sentence to encourage her ongoing rehabilitation.

  • Whether the sentencing judge erred by imposing full-time custody rather than a suspended sentence, given evidence of significant rehabilitation
  • Whether the sentencing judge's assessment of objective seriousness impermissibly relied on an aggravating factor not charged (commission in company), contrary to R v De Simoni
  • Whether the sentencing judge failed to properly consider the applicant's mental illness at the time of sentencing
  • Whether insufficient weight was given to the staleness of the offence and the applicant's rehabilitation
  • Whether the sentencing judge failed to adequately account for hardship to the applicant's children
  • Whether the Crown's submission at first instance was misleading and influenced the sentencing outcome

Decision

The Court of Criminal Appeal dismissed the appeal on all grounds, finding no error in the sentencing judge's exercise of discretion. Hislop J (with whom McClellan CJ at CL and Rothman J agreed) confirmed that sentencing involves a discretionary judgment and that no single sentence is correct. The sentencing judge had, in fact, made numerous favourable findings about the applicant's rehabilitation, remorse, and changed circumstances.

Hislop J reaffirmed that rehabilitation, while an important consideration, does not automatically take precedence over deterrence, retribution, and punishment. All relevant factors must be weighed together. Given the objective seriousness of the offence, the applicant's criminal history, and the fact that the offence was committed while she was on conditional liberty, the sentencing judge was entitled to conclude that full-time custody was the only appropriate option.

On the De Simoni ground, the Court found that while the fact sheet referred to the possibility of the offence being committed in company, it had not been established that the sentencing judge actually sentenced the applicant on that basis. The potential error had even been flagged by defence counsel at first instance, making it improbable the judge overlooked it.

The remaining grounds were also rejected. No error was established in the judge's treatment of the applicant's mental illness, the staleness of the offence, or hardship to the children. The Court was equally unpersuaded that the Crown's submission at first instance had misled the judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Rehabilitation is a relevant and significant sentencing consideration, but it does not override other purposes of sentencing such as deterrence, retribution, and punishment, all of which must be balanced together.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the decision whether to suspend a sentence is a matter falling wholly within the sentencing judge's discretion, and appellate intervention requires a demonstrated error.
  • No error was established simply because a sentencing judge declined to suspend a sentence despite making positive findings about an offender's rehabilitation, remorse, and changed personal circumstances.
  • Where a fact sheet referred to a potentially aggravating circumstance not charged, the Court declined to infer error in the absence of evidence that the sentencing judge actually relied on that circumstance.
  • A Crown submission at first instance that a non-custodial sentence would fall outside the range did not constitute a ground of appeal where the applicant could not demonstrate the judge was misled by it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)

Cases
- Mallet v Mallet (1983-1984) 156 CLR 605
- Markarian v The Queen (2005) 215 ALR 213
- R v De Simoni (1981) 147 CLR 383
- R v MA (2004) 145 A Crim R 434
- R v Molina (1984) 13 A Crim R 76
- R v Simpson (2001) 53 NSWLR 704
- R v Tait (1979) 46 FLR 386
- R v Togias (2001) 127 A Crim R 23
- R v Zamagias [2002] NSWCCA 17