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District Court 11 June 2015

R v Jamie Dale GARDINER

[2015] NSWDC 90

Assault & violenceTheft & propertyPublic order & justice offences
BREAK & ENTER ROBBERY ARMED WITH OFFENSIVE WEAPON MENTAL HEALTH. FORM 1 COMMUNITY PROTECTION.

Citation: R v Jamie Dale Gardiner [2015] NSWDC 90
Court: District Court of New South Wales
Date: 11 June 2015
Judge: Judge A Haesler SC DCJ

Background

The offender, a man born in 1971 with a lengthy criminal history dating to his appearance before the Children's Court in 1988, was sentenced for offences committed on 5 May 2014, shortly after his release from custody. He had received no post-release supervision, as he had served his previous sentence in full. He had longstanding mental health, drug, and alcohol problems, and while on remand for these matters was scheduled as an involuntary patient under the Mental Health (Forensic Provisions) Act 1990.

In the early hours of 5 May 2014, the offender broke into a conference centre in Kent Street, Sydney, hiding inside until the morning. On leaving, he entered a nearby car park, approached a lone motorist, and threatened to kill him while armed with a knife he had taken from the conference centre. He took $70 and the man's car keys before forcing the victim to drive him to Kings Cross, where he detained the victim for over an hour while seeking ATM access, ultimately taking a further $200.

The offender pleaded guilty to break and enter, and to robbery while armed with an offensive weapon. A further charge of taking and detaining a person was placed on a Form 1 (a procedural mechanism allowing additional offences to be taken into account in sentencing without a separate conviction being recorded for them).

  • What was the appropriate sentence for the break and enter and armed robbery offences, having regard to their objective seriousness?
  • How should the offender's mental illness affect the sentencing exercise, including the application of the principles from R v Verdins [2007] VSCA 102?
  • What weight should be given to the offender's guilty pleas, given the delay caused by the need to assess his fitness to plead?
  • What discount applied for the guilty pleas?
  • How should the Form 1 matter (taking and detaining the victim) affect the sentences for the principal offences?
  • Were there special circumstances justifying a departure from the standard ratio of non-parole period to total sentence under the Crimes (Sentencing Procedure) Act 1999?
  • How should the need to protect the community be balanced against the offender's personal circumstances, including mental illness and a prospect of rehabilitation?

Decision

Judge Haesler held that the armed robbery was objectively a very serious offence. The victim was confronted alone in what he believed to be a secure car park, threatened with a large knife by a man who was visibly disturbed and irrational. Drawing on the guideline judgment in Henry v R (1999) 46 NSWLR 346, his Honour emphasised that armed robbery is a crime against the person, not merely against property, and demands condign punishment. The Form 1 matter, involving the detention of the victim for over an hour under continued threat, further increased the appropriate penalty.

His Honour accepted that the offender's mental illness was a relevant consideration under the Verdins principles, but found that its application was complicated by the offender's history and the nature of his conditions. While mental illness could reduce the weight given to general deterrence and might moderate the assessment of moral culpability, it did not displace the need for a substantial custodial sentence. The offender's long history of reoffending, the circumstances of these offences, and the identified risk to the community all pointed firmly toward full-time imprisonment.

A 25% discount was applied to reflect the guilty pleas. Although they were not entered at the earliest possible opportunity, the delay was attributable to the need to obtain a forensic psychiatric assessment of fitness to plead, and the Crown accepted that the pleas had considerable utilitarian value. Special circumstances were found to exist, justifying an extension of the parole period beyond the statutory norm, primarily to ensure the offender could be supervised in the community for as long as possible following release. His Honour directed that a copy of the psychiatric report accompany the warrant so it could be provided to Justice Health, with the expectation that a mental health treatment plan be in place before release.

Orders Made

  • Break and enter (Sequence 005): 18 months imprisonment, comprising a non-parole period of 9 months commencing 5 November 2014 and expiring 4 August 2015.
  • Robbery armed with offensive weapon (Sequence 003): 3 years 9 months imprisonment, comprising a non-parole period of 1 year 9 months commencing 5 February 2015 and expiring 4 November 2016, partly consecutive on the first sentence; balance of term of 2 years to run from 5 November 2016 to 4 November 2018.
  • Form 1 (taking and detaining a person, Sequence 004): Taken into account; no separate sentence imposed.
  • Total effective sentence: 4 years, commencing 5 November 2014 and expiring 4 November 2018, with eligibility for parole on 4 November 2016 subject to supervision by Community Services NSW.

Key Takeaways

  • Mental illness is a relevant but not determinative factor in sentencing: where an offender poses a demonstrated risk to the community and has a prolonged history of reoffending, the need for community protection can outweigh the mitigating effect of mental health considerations under the Verdins principles.
  • A guilty plea entered after a fitness-to-plead assessment, though not at the earliest opportunity, may still attract a substantial discount (here 25%) where the delay is attributable to the assessment process and the plea has genuine utilitarian value.
  • Under the Form 1 mechanism in the Crimes (Sentencing Procedure) Act 1999, no conviction is recorded for the listed offence, but the sentencing court may increase the penalty for the principal offence to reflect the additional criminality; the decision to use the Form 1 rests with the Director of Public Prosecutions.
  • Special circumstances justifying an extended parole period can be found where prolonged community supervision is necessary for an offender with significant mental health needs, even where the offending history is extensive.
  • The District Court directed that psychiatric material accompany the sentence warrant to facilitate appropriate treatment planning by Justice Health, illustrating the court's capacity to make practical arrangements at the point of sentence in cases involving mental illness.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Henry v R (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- R v Verdins [2007] VSCA 102
- Munda v Western Australia [2013] HCA 38
- Postiglione v The Queen (1997) 189 CLR 295
- Weininger v The Queen (2003) 212 CLR 629
- R v Engert (1996) 84 A Crim R 67
- Cahyadi v R [2007] NSWCCA 1
- R v Israil [2002] NSWCCA 255
- R v Hopkins [2004] NSWCCA 105
- R v Knight (2005) 155 A Crim R 252
- R v M.A.K., R v M.S.K. [2006] NSWCCA 381
- Potts v R [2012] NSWCCA 229
- R v Paliijan [2010] NSWCCA 142
- DPP (Cth) v Del la Rosa [2010] NSWCCA 194
- R v Storey [1998] 1 VR 359
- R v Henry [2007] NSWCCA 90