Citation: Gardiner v R [2018] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 5 March 2018
Judges: Simpson JA (principal judgment); Fullerton J and McCallum J (agreeing)
Background
The appellant pleaded guilty in the District Court at Bathurst to robbery in company under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years imprisonment. The offence occurred on 4 November 2015, when the appellant and a co-offender entered a rural service station armed with a golf club and a knife and stole approximately $200 to $300 in cash and cigarettes. A third co-offender drove the vehicle.
The sentencing judge, Bennett DCJ, imposed a total term of three years imprisonment with a non-parole period of 18 months, commencing 26 August 2016. The appellant was 20 years old at the time of the offence, had no prior criminal history, and had undertaken a residential drug and alcohol rehabilitation program at Triple Care Farm while on bail.
Two co-offenders were sentenced separately. Adam Bourke was sentenced by Bennett DCJ at the same time as the appellant, and Jesse Jepson received an identical sentence to the appellant from a different judge. The appellant sought leave to appeal on the grounds that the sentencing judge failed to account for time spent in quasi-custody, misapplied the guilty plea discount, and imposed a sentence that left him with a justifiable sense of grievance compared to his co-offenders.
Legal Issues
- Whether the sentencing judge gave adequate credit for the period the appellant spent at Triple Care Farm, a residential rehabilitation facility, as quasi-custody under the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the principles in R v Thomson; R v Houlton (2000) were correctly applied in assessing the guilty plea discount
- Whether the appellant had a justifiable sense of grievance arising from disparity with co-offender sentences, given that his circumstances were more favourable than those of his co-offenders
Decision
Quasi-custody: Simpson JA found that the sentencing judge failed to adequately account for the period the appellant spent at Triple Care Farm. The residential program was conducted on an isolated rural property under strict conditions, with no ability for the appellant's family to visit due to distance. This qualified as a period of quasi-custody that should have been reflected in the sentence.
Guilty plea discount: The Court found that the 25 per cent discount for the guilty plea, which was common ground between the parties, had not been properly applied in the final sentence. The Thomson and Houlton principles require a transparent and identifiable reduction, and the sentencing judge's approach did not adequately demonstrate that this had occurred.
Parity with co-offenders: This ground was upheld on the basis that the appellant's subjective circumstances were more favourable than those of both co-offenders. He had no prior criminal history, demonstrated genuine remorse, and had taken significant steps toward rehabilitation. Imposing an identical sentence, without acknowledging these distinctions, left the appellant with a justifiable sense of grievance. The Court noted that care was still required to ensure the sentence adequately reflected the objective gravity of the offence.
Resentencing: The Court exercised its own sentencing discretion. It acknowledged the offence fell within the Henry guideline profile for robbery but held that the appellant's rehabilitation efforts warranted a significant downward departure. Special circumstances were found under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, maintaining the same non-parole to balance-of-term ratio as the original sentence.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed in the District Court on 26 August 2016 set aside
- In lieu thereof, the appellant sentenced to imprisonment comprising a non-parole period of 14 months commencing 22 July 2016 and expiring 21 September 2017, with a balance of term of 14 months expiring 21 November 2018
- Appellant entitled to immediate release
Key Takeaways
- A residential rehabilitation program conducted on an isolated property under strict conditions can constitute quasi-custody, and a failure to give adequate credit for such a period is an error on sentence.
- Where a 25 per cent guilty plea discount is agreed, the Thomson and Houlton principles require that discount to be transparently applied; a sentence that does not demonstrably reflect the reduction is liable to correction on appeal.
- Parity principles require that co-offenders not be sentenced identically where one has materially more favourable subjective circumstances; an identical sentence in such circumstances may give rise to a justifiable sense of grievance.
- Significant genuine rehabilitation efforts undertaken between offending and sentencing can warrant a meaningful downward departure from a guideline sentence, even where the offence is of serious objective gravity.
- Delays in prosecuting a sentence appeal can have real consequences: the Court noted that the appellant served five months more in custody than he should have because of the delayed filing of the Notice of Appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 50, 53A, 86
Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Edwards v R [2017] NSWCCA 160
- Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48
- Lambert v R [2015] NSWCCA 22
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49