R v Gardner

[2020] ACTSC 278

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Gardner

Citation:

[2020] ACTSC 278

Hearing Date:

12 October 2020  

DecisionDate:

12 October 2020

Before:

Elkaim J

Decision:

See [20]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – occasioning grievous bodily harm – early guilty plea

Legislation Cited:

Crimes Act 1900 (ACT) s 25

Parties:

The Queen (Crown)

Jaiden Dale Gardner (Offender)

Representation:

Counsel

C Wanigaratne (Crown)

S Lynch (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

ACT Aboriginal Legal Service (Offender)

File Numbers:

SCC 77 of 2020; SCC 78 of 2020

ELKAIM J:

1. On 17 August 2020 the offender pleaded guilty to a single count of occasioning grievous bodily harm (SCCAN126/2020) in an indictment dated 13 August 2020. This offence is contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty is 5 years’ imprisonment.

1. These are the facts behind the offence: On the afternoon of 7 February 2020 Jake Elliott was at home in Theodore in the ACT. His sister, Rachel Elliott, resided at the same address. Ms Elliott’s boyfriend, Mr Zachary Norton, came to the house. He told Mr Elliott that he wished to see Ms Elliott. She was not home. Mr Elliott rang Ms Elliott and told her that Mr Norton was awaiting her arrival. She soon arrived which seems to have generated an argument with Mr Norton in Mr Elliott’s bedroom. Mr Elliott tried to stem the discord.

1. The offender came into the house. He took hold of a baseball bat. It is a little unclear but he may have originally arrived with Ms Elliott. He had previously been in a relationship with Ms Elliott which had produced a child. He saw the ongoing argument. Mr Elliott tried to withdraw his sister from the bedroom. She resisted by punching her brother in the mouth.

1. The offender approached the arguing trio. Mr Norton threw items at him. He evaded the assorted missiles and approached Mr Elliott.

1. Acting in defence of Ms Elliott the offender struck Mr Elliott on the side of his forehead with the baseball bat. This reaction was somewhat excessive. Mr Elliott temporarily lost consciousness and suffered a laceration to his forehead.

1. Mr Norton, perhaps not appreciating the extent of the injury to Mr Elliott, asked Mr Elliott to call the police. The offender and Ms Elliott sat in a vehicle. Mr Elliott was taken to Canberra hospital. The wound was sealed with sutures.

1. The offender, in evidence today, said that he went “over the top and was not thinking”.

1. It is a little difficult to work out the precise length of time the offender has been in prison so far due to this offence. To some extent by way of compromise, I intend to backdate his prison term by three months.

1. The offender was clearly acting in defence of his former partner and mother of his child. His act of chivalry however was well exceeded by the nature of his attack. Nevertheless his motive is relevant to the assessment of objective seriousness. The injury to Mr Elliott is also relevant. I have seen photographs of the extensive laceration. The blow was strong enough to cause a short period of loss of consciousness. Fortunately there was no fracture to Mr Elliott’s skull. A CT scan of his brain did not reveal any abnormality. I do not know if he has suffered permanent scarring.

1. In particular because of the motive for the attack, I assess the objective seriousness of the offence as just below medium for this type of crime.

1. The offender has a criminal record. It includes acts of violence.

1. The offender is of indigenous origin. He was born in 1995. He had a very unsettled upbringing, sometimes being in protected circumstances, due to the violence of his stepfather. His stepfather has since passed away and the offender maintains a supportive relationship with his mother.

1. Besides the child, who is now seven years of age, emanating from the relationship with Ms Elliott, the offender has a current partner and they have a one year old child.

1. The offender left school as a teenager because he was placed in juvenile detention. His literacy level is low but he has found various jobs, including furniture removal, gardening work and construction work.

1. The offender has a long-standing history of problems with alcohol and illicit drugs. In particular he has been using methamphetamine since he was 18 years of age. He thinks he has become an addict and uses drugs to help deal with his painful memories. He attended a rehabilitation centre some years ago but that has not seemed to cure his addictions.

1. The offender now has a bed at Oolong House to participate in a rehabilitation program. There is a letter from this institution which confirms his placement. The letter includes this paragraph:

Mr Jaiden Gardiner had expressed great excitement to be given this opportunity for placement in our program. I can confirm that Mr Gardner has been in contact with our service on [a] weekly basis since his assessment.

1. It is important that the offender be given the opportunity to engage in rehabilitation.

1. I also note that the offender told me today that he recognises he needs help and he wishes to become a better person both for himself and for his daughters.

1. The offender is entitled to a discount for his pleas of guilty, which I assess at approximately 25%.

1. I make the following orders:

(a)For the offence of occasioning grievous bodily harm (SCCAN126/2020), the offender is sentenced to 12 months’ imprisonment (reduced from 15 months’) to commence 12 July 2020 and end on 11 July 2021. The imprisonment is suspended with immediate effect on condition that the offender enter a Good Behaviour Order for a period of 12 months on the core conditions, and, in addition, the following conditions:

(i)That the offender enter, remain and successfully complete the 16 week residential rehabilitation program at Oolong House.

(ii)That the offender accept supervision of ACT Corrective Services and obey all directions and attend any programs and counselling as directed.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.

Associate:

Date: 12 October 2020