R v Gardner (No 2)

[2023] ACTSC 89

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Gardner (No 2)
Citation:	[2023] ACTSC 89
Hearing Date:	21 April 2023
Decision Date:	21 April 2023
Before:	McCallum CJ
Decision:	(1) Grant bail on the following conditions:

(a) applicant not to be released until 27 April 2023;

(b) to reside at [REDACTED] and remain there from 9pm to 7am unless in the company of his mother, [REDACTED];

(c) not to consume illicit substances or cannabis;

(d) to accept the supervision of ACT Corrective Services;

(e) to participate in an assessment with Directions ACT for

the Arcadia House Residential Program on 28 April 2023

and, if found suitable, do all things reasonably necessary

to be admitted to that program;

(f) to consult a medical practitioner at Winnunga Nimmityjah

Aboriginal Health and Community Service within 3 days

of his release;

(g) on the day of his release, 27 April, to report to

Corrective Services.

(2) List the matter on 2 May 2023 at 9:15am before McCallum CJ

for sentence hearing.

Catchwords:	CRIMINAL LAW – BAIL – Presumption of bail – where applicant to be dealt with for breach of a good behaviour order – desirability of residential rehabilitation – where timely assessment of
suitability for residential rehabilitation unavailable to persons in
custody – risk of reoffending – strong family support
Cases Cited:	Gardner v Chief Magistrate Walker [2023] ACTSC 96 R v Gardner [2020] ACTSC 278 R v Gardner [2022] ACTSC 36
Parties:	The Queen (Crown)
Jaiden Dale Gardner (Offender)
Representation:	Counsel
S Bargwanna (Crown)
P Edmonds (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Canberra Criminal Lawyers (Offender)
File Numbers:	SCC 77 of 2020 SCC 78 of 2020
McCALLUM CJ:

1.       This is an application for bail by Jaiden Gardner who is before the Court only in relation

to the breach of a good behaviour order imposed as an aspect of a sentence passed by

Elkaim J some two and a half years ago: R v Gardner [2020] ACTSC 278.

2.       The detailed history of Mr Gardner’s experience with the criminal justice system in the

ACT was recited by me yesterday in a judgment given ex tempore in a different context:

Gardner v Chief Magistrate Walker [2023] ACTSC 96 at [5]-[14].

3.       Since yesterday, Mr Gardner has completed the unsuspended portion of a sentence

imposed by Norrish AJ: R v Gardner [2022] ACTSC 36. He has also learned that he can

be assessed for suitability for a residential rehabilitation program on 28 April 2023 and

seeks bail today on conditions that would see him subject to a night-time curfew, a

condition requiring him to reside with his mother, a prohibition on the consumption of

illicit substances, a requirement to accept the supervision of ACT Corrective Services

and a proposed reporting requirement. If he remains in custody he will have to wait

significantly longer for an assessment.

4.       I note that the application faces a presumption in favour of bail and that is a strong

consideration.

5.       The Crown quite properly draws the Court’s attention to a single risk if bail is granted:

that is the risk that the applicant would re-offend if granted bail. The existence of such a

risk is amply supported by the applicant’s criminal history. Also to be taken into account

are the circumstances of offences alleged to have been committed in New South Wales.

Those were the subject of the application yesterday to which I have referred, in which

the Court was asked to consider the validity of an arrest warrant from that jurisdiction

which was the basis for an extradition order made last year by the Chief Magistrate.

6.       The New South Wales offences are based on allegations which are very serious indeed.

A police officer was severely injured in the course of his duties when he was driven at by

the driver of a stolen Audi. It is important to note, however, that it is not alleged that the

applicant was the driver of that vehicle and he is not charged with any driving offence

other than complicity in what is colloquially referred to as “joyriding” and failing to stop

after the accident. The offender has not yet been before the New South Wales courts in

relation to those matters and will have to face them upon the completion of these breach

proceedings, however they may resolve.

7.       Whilst those matters cause me to have some concern, I am moved by the terms of a

letter from the applicant’s mother which was tendered before Norrish AJ when his Honour

sentenced the applicant. She explains the extremely challenging upbringing the applicant had in circumstances where she was in a relationship with a violent man who

is now deceased. I do want to record one matter in relation to her letter. She states in

relation to the difficulties the applicant faced during that period of her life that it is her

fault. I strenuously urge her not to think that way. It is well understood that relationships

of that kind are not the fault of the victim but the product of manipulative and difficult

relationships and pressures exerted by perpetuators.

8.       In any event, happily, the applicant’s mother is now free of that relationship and involved

in a more functional relationship which, among other things, involves her having

successfully addressed her own issues with alcohol and substance abuse. She is now

a teetotaller and staunchly maintains that regime in her household, where the applicant

would reside if granted bail.

9.       Whilst I am concerned at the risk that if the offender falls back into the use of illicit drugs

he will also revert to unlawful conduct, I am persuaded by the submissions of Mr

Edmonds that it is appropriate to give him this opportunity to engage in residential

rehabilitation as a way of dealing with the single matter that is actually before me, being

the breach of a good behaviour order by the possession of a taser.

10.     I think, however, that it would be safer if he were not released until the day before the

date scheduled for the assessment for residential rehabilitation. I do not see the need

for a reporting condition for that period because I think the offender should rather be

focusing on addressing his medical needs and supervision requirements.

11.     The orders of the Court are:

(1)	Bail is granted on the following conditions:
(a) applicant not be released until 27 April 2023;
(b) Reside at [REDACTED] and remain there from 9:00pm to 7:00am, unless in

the company of his mother, [REDACTED];

(c) Not to consume illicit substances or cannabis;

(d) Accepts the supervision of ACT Corrective Services;

(e) Participates in an assessment with Directions ACT for the Arcadia House

Residential Program on 28 April 2023 and, if found suitable, do all things

reasonably necessary to be admitted to that program;

(f) Consult a medical practitioner at Winnunga Nimmityjah Aboriginal Health

and Community Service within 3 days of his release;

(g) On the day of his release, 27 April, he report to Corrective Services.

(2)	List the matter on 2 May 2023 at 9:15am before McCallum CJ for sentence
hearing.

I certify that the preceding eleven [11] numbered

paragraphs are a true copy of the Reasons for

Judgment of her Honour Chief Justice McCallum

Associate:

Date: 21 August 2023