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District Court 17 November 2017

R v Gardiner

[2017] NSWDC 409

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE FORM 1 FAILURE TO ATTEND ICO ASSESSMENT FURTHER OFFENDING TOTALITY

Citation: R v Gardiner [2017] NSWDC 409
Court: District Court of New South Wales
Date: 17 November 2017
Judge: Berman SC DCJ

Background

The offender appeared for sentencing on a charge of entering a dwelling house with intent to commit larceny, with a related larceny matter listed on a Form 1. At a first sentencing hearing in December 2016, the judge had been impressed by the offender's evidence and his apparent capacity for rehabilitation, and granted bail while ordering an assessment for an intensive correction order (ICO), a community-based custodial sentence typically available only where the head sentence is two years or less.

The offender failed entirely to engage with that process. He did not contact the Probation and Parole Service, could not be located, failed to appear, and a warrant was issued for his arrest. During the period he was at large, he committed a series of further offences including involvement in a police pursuit, taking and driving a conveyance, possessing a cutting weapon, receiving stolen property, and failing to appear on bail. He was dealt with for those matters in the Local Court and received a custodial sentence.

He returned before the District Court at age 21, having already spent over five months in presentence custody referable to the original offending.

  • Whether the original sentencing approach, oriented toward rehabilitation and an ICO, remained appropriate in light of the offender's failure to comply with the assessment order and his subsequent offending
  • Whether a finding of special circumstances was justified to extend the parole period beyond the statutory norm, given the offender's poor record of compliance
  • How the principle of totality should be applied when backdating the sentence to account for presentence custody

Decision

The court found that the basis on which it had originally contemplated a sentence of two years or less, namely the offender's apparent willingness and capacity to rehabilitate, had proven to be mistaken. The offender had not merely failed to cooperate with the ICO assessment; he had also committed further offences while on bail. As a result, the focus of the sentencing exercise shifted from rehabilitation to punishment, and the possibility of an ICO was no longer appropriate.

On the question of special circumstances, the court acknowledged that the offender's history of non-compliance weighed against such a finding. Nevertheless, the court made the finding, reasoning that any benefit to the community from reducing re-offending risk outweighed the concern. The extended parole period was characterised as a practical measure aimed at reducing future offending rather than an indulgence to the offender personally.

The court applied the principle of totality by backdating the sentence beyond the five months and three days of presentence custody already served in relation to this offence, to account for the overall sentencing picture. The offender's plea of guilty and the Form 1 matter were also taken into account in arriving at the final sentence.

Orders Made

  • Non-parole period of 18 months, commencing 17 February 2017 and expiring 16 August 2018
  • Head sentence of 3 years
  • The offender to be released to parole on 16 August 2018
  • The Form 1 larceny matter taken into account

Key Takeaways

  • Where an offender has been released for an ICO assessment and subsequently fails to comply and commits further offences, the original sentencing assumptions favouring rehabilitation may no longer hold, and a longer, purely custodial sentence can result.
  • A finding of special circumstances is not precluded by a poor compliance history, but the District Court here framed it in terms of community benefit rather than personal mitigation, reflecting a cautious approach to its application in such circumstances.
  • The principle of totality operated to backdate the sentence beyond the strictly calculated presentence custody period, ensuring the overall sentence remained proportionate when viewed alongside the Local Court penalties already imposed.
  • Referral for an ICO assessment carries an implicit judicial assessment that a sentence of two years or less is likely. That assessment is expressly conditional on the factual basis at the time, and changed circumstances can displace it entirely.
  • The decision illustrates that a grant of bail pending sentencing, extended on the basis of favourable impressions of an offender, is not insulated from subsequent reconsideration if the offender's conduct during that period undermines the court's original findings.

Legislation and Cases Referenced

Cases:
- R v Gardiner [2016] NSWDC 402 (the original sentencing remarks by the same judge)

Legislation:
No specific legislative provisions were identified by name in the judgment text. The decision references intensive correction orders (ICOs) as a sentencing option and the concept of special circumstances in the context of the standard non-parole period ratio, both of which are governed by the Crimes (Sentencing Procedure) Act 1999 (NSW).