Gardener v R [2015] NSWCCA 170

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gardener v R [2015] NSWCCA 170 Hearing dates: 23 June 2015 Decision date: 29 June 2015 Before: Price J at [1]; R A Hulme J at [2]; Davies J at [83] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – armed robbery – carried in conveyance – whether sentencing judge erred in approach to issue of mental illness – relevance of general deterrence – whether specific deterrence, prospects of rehabilitation, custodial conditions and protection of the community properly weighed – where applicant has extensive criminal history and drug and alcohol abuse issues – applicant from deprived and dysfunctional background – where rehabilitation important but applicant's prospects poor – no error established in approach of sentencing judge

CRIMINAL LAW - appeal against sentence – armed robbery – carried in conveyance – whether sentencing judge erred in principle in refusing deferral of sentence pursuant to s 11 Crimes (Sentencing Procedure Act) 1999 (NSW) – no error in principle – not an appropriate case for deferral of sentence

CRIMINAL LAW – appeal against sentence - fresh evidence – new evidence – general principles – whether applicant can rely on material as fresh evidence - proper grounds not established – material only relevant in event of re-sentencing

CRIMINAL LAW - appeal against sentence – armed robbery – carried in conveyance – whether sentence manifestly excessive – where applicant in company – where offence planned – applicant on parole and with extensive criminal history including offences of violence – sentence not unreasonable or unjust – lesser sentence not warranted Legislation Cited: Crimes Act 1900 (NSW) ss 97, 154A Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 11 Criminal Appeal Act 1912 (NSW) s 6 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Brown [2009] NSWCCA 6; 193 A Crim R 574 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Farrell [2014] NSWCCA 30 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Trindall [2002] NSWCCA 364; 133 A Crim R 119 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Category: Principal judgment Parties: Guy Pearce Gardener (Applicant) Regina (Respondent) Representation: Counsel: Mr D Dalton SC (Applicant) Ms S Dowling SC (Crown)