District Court New South Wales Medium Neutral Citation: R v Gardiner [2017] NSWDC 409 Hearing dates: 17 November 2017 Date of orders: 17 November 2017 Decision date: 17 November 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 18 months with a head sentence of 3 years. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Enter dwelling house with intent to commit larceny – Failure to attend ICO assessment – Further offending – Totality – No reason that sentence of 2 years or less should be imposed following failure to attend for ICO assessment. Cases Cited: R v Gardiner [2016] NSWDC 402 Category: Sentence Parties: The Crown Jake Gardiner Representation: Counsel: R Khalilizadeh – The offender Solicitors: Director of Public Prosecutions Legal Aid Commission File Number(s): 2016/13767; 2016/71523 Judgment 1. HIS HONOUR: When Mr Gardiner first appeared before me on 14 December 2016 he was in custody awaiting sentence on a charge of entering a dwelling house with intent to commit larceny. There was also a matter on a Form 1 of larceny. 2. 2 I was impressed by Mr Gardiner. He gave evidence, as did his mother. It appeared to me that Mr Gardiner was intending to, and capable of, turning his life around. I was wrong. 3. 3 Impressed by Mr Gardiner as I was I granted him bail and ordered that he be assessed for his suitability to serve a sentence of imprisonment by means of an intensive correction order. Mr Gardiner simply failed to comply with my order. He did not contact Probation and Parole Service, they could not find him, and so when the matter came back before me he did not appear and I issued a warrant for his arrest. He was at liberty for some time before he was arrested. He now appears before me to be sentenced for his offending. 4. 4 One matter needs to be immediately observed. When I referred him for an ICO assessment I considered, obviously, that a sentence of imprisonment of two years or less was likely. That assessment as to the length of the sentence, and the means by which it should be served was based on my false understanding of what Mr Gardiner was capable of doing. It is regrettable that Mr Gardiner has demonstrated that he is unwilling or unable to do what is best for himself. He not only abused the offer of leniency that I offered to him but committed further offences. He was involved in a police pursuit. He took and drove a conveyance. He was found to be in possession of a cutting weapon upon his apprehension. He received stolen property and he failed to appear on bail. He was dealt with those matters in the Local Court and received a sentence of imprisonment. So I regret to say that Mr Gardiner's prospects for rehabilitation are extremely guarded. 5. 5 Mr Gardiner was only 19 at the time of the offence which I described in my original remarks on sentence, R v Gardiner [2016] NSWDC 402. 6. 6 He is now 21 years of age. He has spent a significant time in custody already. Five months and three days of that time in custody is solely referrable to this offending. He has been attempting to engage with rehabilitation programs whilst in custody but as often happens, as he is being moved around the prison system opportunities sometimes disappear. 7. 7 On the last occasion I saw Mr Gardiner, or at least in December 2016, his mother and stepfather were present in Court. As I mentioned, his mother even gave evidence on his behalf. No member of his family is in Court today, but I am told that is not because his mother has abandoned him, it is because she is recovering from an operation. 8. 8 What I was focussing on when I contemplated an ICO for two years or less was Mr Gardiner's rehabilitation. Because of what has occurred since then I am now focussing on his punishment. Leniency did not work and so what I will be doing is imposing a sentence upon Mr Gardiner which will demonstrate to him in very concrete terms the consequences of criminal offending. If he continues to commit criminal offences he will continue to go to gaol. He will see people who started out their criminal careers just like him, people whose lives have effectively been wasted, people who measure out their lives in Court dates and release dates. Mr Gardiner must know that if he wishes not to be one of those people he has to take action to change his life. Cooperating with the Probation and Parole Service upon his release from custody might be a start. 9. 9 Although, as I mentioned, five months and three days of his presentence custody has been referrable to this offence. I am going to backdate the sentence I will shortly announce beyond that to take account of the principle of totality. 10. 10 A submission was made that I would make a finding of special circumstances. As the Crown accurately pointed, out the problem with that is that Mr Gardiner has not taken advantage of opportunities that were available to him before. On the other hand if there is to be any hope for Mr Gardiner's future that can really only come about if after Mr Gardiner makes the decision that he wants to do something about his life, assisted by the Probation and Parole Service. Not without some hesitation I will make a finding of special circumstances in Mr Gardiner's favour, but that is not done particularly as a favour to Mr Gardiner, it is done to reduce the chances of him committing further offences in the future. If that happens of course then the community and its members benefit, as well as Mr Gardiner personally. 11. 11 The sentence I impose consists of a non-parole period of 18 months to date from 17 February 2017 and a head sentence of three years. 12. 12 The non-parole period will expire on 16 August 2018 on which day Mr Gardiner is to be released to parole. 13. 13 I should indicate that in imposing that sentence I have taken into account the matter on the Form 1 and of course Mr Gardiner's plea of guilty, a matter to which I made reference in my earlier remarks on sentence on 14 December 2016. ********** Amendments 19 February 2018 - Spelling error cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2018