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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gardner (No 2)

Details

AGLC: R v Gardner (No 2) [2023] ACTSC 89
Case: [2023] ACTSC 89
Decision Date

CaseChat Overview and Summary

This case involved an application for bail by Jaiden Dale Gardner, who was before the Supreme Court of the Australian Capital Territory in relation to a breach of a good behaviour order imposed as part of a sentence for a previous offence. The court had to decide whether to grant bail to Gardner, considering his criminal history, the nature of the alleged breach, and the desirability of residential rehabilitation. The Crown argued against bail due to the risk of reoffending, while Gardner's legal representative argued in favour of bail, emphasising the potential benefits of residential rehabilitation and strong family support.

The court considered the presumption in favour of bail and the risk of reoffending, which was supported by Gardner's criminal history and the allegations of serious offences in New South Wales. However, the court was persuaded by the strong family support, particularly from Gardner's mother, who had addressed her own issues with alcohol and substance abuse and maintained a substance-free household. The court also noted that timely assessment for residential rehabilitation was unavailable to those in custody. The court was convinced that granting bail would provide Gardner with the opportunity to engage in residential rehabilitation, addressing the breach of the good behaviour order.

After weighing these considerations, the Chief Justice granted bail to Gardner on specific conditions. These conditions included a night-time curfew, residing with his mother, a prohibition on consuming illicit substances, acceptance of supervision by ACT Corrective Services, and participation in an assessment for residential rehabilitation. The court also scheduled a sentence hearing for 2 May 2023. The decision balanced the risks of reoffending with the potential benefits of rehabilitation and the support from Gardner's family.

The final orders of the court were to grant bail to Gardner on the specified conditions and to list the matter for a sentence hearing on 2 May 2023.

Orders