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Supreme Court 30 March 2011

R v Gardiner (No 2)

[2011] NSWSC 240

Assault & violence
CRIMINAL LAW SENTENCE

Citation: R v Gardiner (No 2) [2011] NSWSC 240
Court: Supreme Court of New South Wales
Date: 30 March 2011
Judge: Buddin J

Background

The offender, a young Aboriginal man, pleaded guilty to remaining in a building with intent to commit assault, contrary to an indictment alleging conduct on 8 November 2007. The offence carried a maximum penalty of seven years imprisonment. The guilty plea was entered after the Crown discontinued the other counts on the original indictment, which had included a more serious charge.

The offence arose from an incident in Ultimo in the early hours of 8 November 2007. The offender, along with two others, entered the private veranda of a ground-floor unit. When confronted by the occupant, the offender removed his jumper, jumped the fence, and headbutted the victim in the abdomen. A physical struggle followed inside the unit before the offender escaped. Police later identified and apprehended him nearby, and DNA evidence linked him conclusively to the scene.

The sentencing proceeded in the Supreme Court because the matter had been transferred from the District Court to be heard alongside a separate murder charge. Earlier on the same day as sentencing, Buddin J acquitted the offender of murder by reason of mental illness and made consequential orders under the Mental Health (Forensic Provisions) Act 1990. The offender was, at the time of sentencing, being held in a psychiatric facility operated by Corrective Services NSW.

  • What weight should be given to the offender's guilty plea, given that a mental illness defence was available to him at the time of the plea?
  • What effect should the offender's chronic schizophrenia, present at the time of the offence, have on the sentence?
  • What sentence was appropriate in light of the significant delays in the proceedings and the offender's personal circumstances?
  • Should the sentence be backdated, and was it appropriate to set a non-parole period?

Decision

Buddin J identified several factors operating in the offender's favour. The guilty plea was accorded weight, though its value was assessed in context. The court noted that the plea was entered in circumstances where a mental illness defence was available and could have resulted in a complete legal acquittal. Psychiatric reports from two experts (Dr Roberts and Dr Nielssen) confirmed that the offender was suffering from chronic schizophrenia at the time of the offence to a degree that a mental illness defence under the M'Naghten test would have been available.

The significant delay between the offence (November 2007) and the finalisation of proceedings (March 2011) was also treated as a mitigating factor. That delay arose partly because police were awaiting DNA results, with the offender not listed as a wanted person on the police database until August 2009.

Both the offender's counsel and the Crown agreed that it was appropriate to backdate the commencement of the sentence to 24 December 2007, the date on which the offender had been sentenced for other offences committed around the same period. This was described as appropriate given the highly unusual circumstances of the case. No non-parole period was set, as any such period would have already expired by the time of sentencing.

Orders Made

  • The offender was sentenced to 9 months imprisonment, commencing 24 December 2007 and expiring 23 September 2008.
  • No non-parole period was set, as any such period would have already expired and would serve no useful purpose.

Key Takeaways

  • A guilty plea entered where a complete defence (such as mental illness under the M'Naghten test) was available still carries mitigating weight at sentence, though the circumstances of the plea are relevant to the degree of that discount.
  • Chronic schizophrenia present at the time of an offence is a recognised mitigating factor in sentencing, particularly where expert psychiatric evidence establishes its severity.
  • Significant procedural delay in bringing proceedings to finality is a mitigating consideration in sentencing, separate from any question of the offender's conduct.
  • The Supreme Court backdated the sentence to align with an earlier sentence for related offences, treating this as appropriate in the highly unusual circumstances where both matters arose from the same period and the offender had already served custody.
  • Under the Criminal Procedure Act 1986, an offender may elect to be tried by judge alone, and the Crown's consent to that course is required.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 128(2), 132(1)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- M'Naghten's Case (1843) 8 ER 718 (the M'Naghten test for the mental illness defence, referenced but not cited by formal citation in the judgment)