David Hugh Gardner v The Queen

The Court of Appeal of the Australian Capital Territory heard an appeal by David Hugh Gardner against a conviction and sentence imposed by a single judge of the Supreme Court of the Australian Capital Territory. The appeal was conceded to be primarily against sentence.

The legal issues before the Court of Appeal included whether the trial judge should have directed the jury in accordance with the principles established in *KBT v R*, concerning the requirement for jury agreement on specific sexual acts for a conviction of maintaining a sexual relationship. The court also considered whether the sexual acts had been sufficiently separated from other charges and whether the sentence imposed was manifestly excessive.

The Court reasoned that the *KBT v R* direction was unnecessary because the evidence against the appellant, primarily a video he admitted to being in, provided sufficient evidence of the alleged facts, and the appeal was against sentence, not conviction. The court found that the trial judge had appropriately determined the acts constituting the sexual relationship for sentencing purposes, giving the appellant the benefit of any reasonable doubt. The court also determined that the sexual acts had been sufficiently separated from other charges, and even if there had been duplicity, it would not have affected the sentence for the primary offence. The court found the sentence of eight years imprisonment with a four-year non-parole period to be within range, considering the appellant's predatory behaviour towards a vulnerable 14-year-old girl, involving drugs and money.

The Court of Appeal dismissed the appeal, ordering that the appeal be dismissed.