Gardiner v R [2018] NSWCCA 27

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gardiner v R [2018] NSWCCA 27 Hearing dates: 23 February 2018 Date of orders: 23 February 2018 Decision date: 05 March 2018 Before: Simpson JA at [1]; Fullerton J at [64]; McCallum J at [65] Decision: (1) Leave to appeal granted;

(2) Appeal allowed

(3) Sentence imposed in the District Court on 26 August 2016 set aside;

(4) In lieu thereof, the applicant is sentenced to imprisonment made up of a non-parole period of 14 months, commencing on 22 July 2016 and expiring on 21 September 2017, with a balance of term of 14 months which will expire on 21 November 2018.

(5) The applicant is entitled to immediate release. Catchwords: SENTENCING – relevant factors on sentence – period spent in quasi custody – whether quasi custody taken into account by sentencing judge

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether justifiable sense of grievance exists

SENTENCING – mitigating factors – plea of guilty – whether Thomson and Houlton principles were applied in sentencing Legislation Cited: Crimes Act 1900 (NSW), s 97(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 50, 53A, 86 Cases Cited: 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 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lambert v R [2015] NSWCCA 22 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Brady Roy Gardiner (Applicant) Regina (Respondent) Representation: Counsel: S Fraser (Applicant) B Hatfield (Respondent)