R v Gardner (No 3)

[2023] ACTSC 229

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Gardner (No 3)
Citation:	[2023] ACTSC 229
Decision Dates:	13 June 2023; 11 August 2023
Reasons Date:	21 August 2023
Before:	McCallum CJ
Decision:	Stand the matter over until the completion of the offender’s
rehabilitation program.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of good behaviour order – Griffiths remand – deferred sentence –
appropriateness of prioritising rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT) ss 19, 25 Crimes (Sentence Administration) Act 2005 (ACT) ss 110, 107(2)
Cases Cited:	Griffiths v The Queen [1977] HCA 44; 137 CLR 293 R v Gardner (No 2) [2023] ACTSC 89 R v Gardner [2020] ACTSC 278 R v Gardner [2022] ACTSC 36 R v KS [2022] ACTSC 133; 18 ACTLR 160
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.    Jaiden Gardner has come before the Court to be dealt with for breach of a good behaviour

order after pleading guilty in the Magistrates Court to an offence committed during the term

of the order.

Circumstances in which the breach was referred to this Court

2.    It is helpful to consider the breach in the context of Mr Gardner’s recent criminal history in

the Australian Capital Territory. On 7 February 2020, Mr Gardner committed an offence of

occasioning grievous bodily harm contrary to s 25 of the Crimes Act 1900 (ACT). That

offence carries a maximum penalty of imprisonment for five years. In due course he was

sentenced by Elkaim J for that offence: R v Gardner [2020] ACTSC 278. That is the

sentence that included the good behaviour order of which Mr Gardner is now in breach.

3.    The circumstances of the offence as set out in the judgment of Elkaim J at [2]-[10] were, in

short, that Mr Gardner attended the house of his former partner, with whom he shares a

child, at a time when she and her boyfriend were having a heated argument also involving

her brother. Mr Gardner grabbed a baseball bat and approached the three, while the

boyfriend threw items at him. Mr Gardner then struck the brother on the side of his

forehead with the baseball bat. Mr Gardner then left with his ex-partner.

4.   Justice Elkaim accepted that Mr Gardner was “clearly acting in defence of his former

partner” but said his “act of chivalry however was well exceeded by the nature of his attack”:

at [9]. The victim was left temporarily unconscious and with a laceration that required

sutures.

5.   On 28 March 2020, while Mr Gardner was on remand for that offence at the Alexander

Maconochie Centre, he committed the more serious offence of intentionally inflicting

grievous bodily harm contrary to s 19 of the Crimes Act. That offence carries a maximum

penalty of imprisonment for 20 years.

6.    On 12 October 2020, Mr Gardner was sentenced by Elkaim J for the earlier offence. His

Honour imposed a sentence of imprisonment for a period of 12 months backdated to

commence on 12 July 2020 and ending on 11 July 2021. That sentence was suspended

with immediate effect (Mr Gardner having already served 3 months of the sentence) with

a good behaviour order for a period of 12 months on conditions that included a requirement

to undertake a 16-week course of residential rehabilitation. The 12-month period of the

good behaviour order commenced on 12 October 2020 and expired on 11 October 2021.

7.   Mr Gardner successfully completed the residential rehabilitation component of the

sentence. However, on 4 September 2021, just five weeks short of the expiration of the good behaviour order, he breached the order by committing an offence of possessing a

prohibited weapon (a taser). As I will explain, the circumstances of that offence indicate

that, by that time, Mr Gardner had fallen back into his former drug habit.

8.    On 24 November 2021, Mr Gardner pleaded guilty to the offence of intentionally inflicting

grievous bodily harm committed in the Alexander Maconochie Centre. He was sentenced

for that offence on 4 March 2022 by Norrish AJ: see R v Gardner [2022] ACTSC 36. His

Honour imposed a sentence of imprisonment for a period of three years backdated to

commence on 21 October 2021, reduced from three years and six months to reflect the

utilitarian value of the plea. His Honour suspended that sentence from 21 April 2023 (that

is, after Mr Gardner would have served 18 months of the sentence) upon his entering into

a good behaviour order for a period of 18 months commencing on 21 April 2023 and

expiring on 20 October 2024.

9.    On 6 December 2022, Mr Gardner pleaded guilty to the taser offence. The facts of that

offence were not serious. Police attended a residence after a reported medical incident

where they administered first aid to Mr Gardner. During that attendance, they discovered

a taser-like device hidden in a pot plant. There is no evidence of its use by Mr Gardner.

10. Mr Gardner was sentenced for the taser offence in the Magistrates Court by Magistrate

Taylor. Her Honour imposed a term of imprisonment for three months wholly backdated

and accordingly wholly concurrent with the sentence imposed by Norrish AJ. At the same

time, as required by s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT), her

Honour committed Mr Gardner to this Court to be dealt with for the breach of the good

behaviour order made by Elkaim J.

History of the breach proceedings

11. The breach proceedings first came before me on 27 February 2023. By then, Mr Gardner

had served the whole of the sentence imposed for the taser offence and most of the

unsuspended portion of the sentence imposed by Norrish AJ for the offence of intentional

infliction of grievous bodily harm. Leaving aside the requirement that he be dealt with for

the breach, Mr Gardner was then eligible for release from custody on 21 April 2023.

12. In light of the fact that Mr Gardner had already spent such significant periods in custody

and his earlier history of successful engagement with rehabilitation treatment, I accepted

the submission of his solicitor, Mr Edmonds, that a sentence that focussed on rehabilitation

rather than a further period of imprisonment would be appropriate. For that reason, I

adjourned the proceedings to enable Mr Edmonds to explore residential rehabilitation

options for Mr Gardner.

13. The proceedings came back before me on 21 April 2023, the day on which, but for the

breach proceedings, Mr Gardner was eligible for release from custody. On that occasion

it appeared that, if granted bail, Mr Gardner would be able to be assessed for suitability for

a residential rehabilitation program on 28 April 2023, significantly earlier than if he

remained in custody. I granted conditional bail to allow Mr Gardner to be released on 27

April 2023, the day before the scheduled assessment.

14. The proceedings came back before me on 13 June 2023. By then, Mr Gardner had been

assessed as suitable for the residential rehabilitation program at Arcadia House.

Unfortunately, no bed was then available and Mr Gardner had been placed on a waitlist.

There was nonetheless every indication that Mr Gardner was progressing well while at

liberty. He had been attending weekly sessions with SMART Recovery, a self-help group

for people struggling with addiction. His mother confirmed that he had been helping her

and his younger family members and there was no suggestion of relapse into drug use. In

light of that further information, I determined to adjourn the proceedings for eight weeks, in

effect by way of Griffiths remand: cf R v KS [2022] ACTSC 133; 18 ACTLR 160.

15. On 5 July 2023, Mr Gardner was admitted to the Arcadia House Residential Program, a

four-stage treatment program consisting of 12 weeks residential stay followed by a four-

week “step-down” requiring attendance Monday to Friday from 9am to 4pm. Mr Gardner

is expected to complete the Program on 27 September 2023.

16. The proceedings came back before me again on 11 August 2023. On this occasion, a court

duty report and two letters from Arcadia House (one confirming his admission date and the

other updating on his progress since this date) were tendered.

Rehabilitation

17. It is appropriate to explain my reasons for giving substantial weight to the object of

rehabilitation in determining this matter. Mr Gardner is an Aboriginal man, now 27 years

old. He has had an extremely difficult life. Aspects of his personal history were discussed

by Norrish AJ in R v Gardner [2022] ACTSC 36 at [26]-[38]. There is no doubt, as Norrish

AJ noted, that Mr Gardner’s childhood abuse, early introduction to substance abuse and

other hardships warrant the application of Bugmy principles. Further, his background goes

some way to explaining his addictive use of drugs. The pre-sentence report explained “his

use of illicit substances as being the only way he has been able to forget recurring

memories of the traumas”.

18. Mr Gardner has an extensive criminal history, including outstanding charges to be dealt

with in New South Wales. I noted aspects of that history in my judgment granting bail: R v

Gardner (No 2) [2023] ACTSC 89 at [5]-[6]. As implied by the good behaviour order conditions imposed by Elkaim J and recognised in my bail decision, the risk of reoffending

is enlivened when Mr Gardner resumes abuse of illicit substances.

19. It is now well understood that drug addiction is a medical condition and that, even with

appropriate treatment and support, persons undertaking rehabilitation can suffer setbacks.

It may also be accepted that a setback does not necessarily spell the end of a course of

rehabilitation. As already noted, Mr Gardner has previously successfully completed

lengthy courses of residential rehabilitation: a 13-week program in 2017 and a 16-week

program in 2021 (in accordance with the condition imposed by Elkaim J).

20. It is clear enough that, at least as at the date of the taser offence (4 September 2021), Mr

Gardner had lapsed into his former addition. The circumstance that led to the discovery of

the taser was that help was called when he overdosed on methylamphetamine.

21. However, there is evidence to suggest that, since that time, Mr Gardner has been

successful in resuming his rehabilitation. There have been no reports of any breaches

while Mr Gardner was on strict conditional bail. Mr Gardner’s compliance with the

conditions of his bail was supported by his mother who, having successfully overcome the

impact of trauma in her own life, is now committed to providing a stable and supportive

environment for Mr Gardner which, on her own account, she was previously unable to

provide. As very fairly observed by the prosecutor, it is also relevant to note that Mr

Gardner successfully completed most of the term of the good behaviour order imposed by

Elkaim J. Furthermore, the breach, when it occurred, did not involve any actual violence.

22. The author of the pre-sentence report noted Mr Gardner’s “desire to live a drug free life”

and recorded the steps Mr Gardner has initiated to achieve that goal. The

acknowledgement of an addiction is a difficult and important step.

23. The court duty report states “Mr Gardner’s response to his most recent period of

supervision [being the grant of bail since April this year] appears to have improved

significantly to his previous supervision periods”. The report also spoke of Mr Gardner’s

willingness to engage in rehabilitation and mental health counselling.

24. The letter from Arcadia House states that Mr Gardner has progressed well during the first

weeks of the program. The author states:

Mr Gardner has settled into the residential program, he participates well in all aspects and has built great rapport with other participants and staff. His contribution to the therapeutic and educational groups has been excellent. Jaiden recently progressed to stage 2 of the program, this involved sitting before a panel of his peers and staff. He shows good insight and awareness of the need to change and the areas in which he can improve. Over the coming months Mr Gardner will be working on developing relapse prevention skills and strategies, emotional regulation and conflict resolution, along with individual treatment goals that will help maintain abstinence from substance use and lead to positive improvements in all aspects of life. It is my opinion that Jaiden has the ability and motivation to complete the program and this is evident in the work he has done thus far here at Arcadia House.

Orders

25. Section 110 of the Crimes (Sentence Administration) Act provides that, in the case of

breach of a good behaviour order made as part of a suspended sentence, the Court must

cancel the good behaviour order and either impose the suspended sentence imposed for

the offence or re-sentence the offender for the offence.

26. In light of the lengthy periods of time Mr Gardner has already spent in prison for other

offences, the very strong case of rehabilitation demonstrated by him and the constructive

support he now has from his mother and through the programs offered at Arcadia House,

I consider it appropriate to continue the Griffiths remand until a period after Mr Gardner’s

completion of the residential rehabilitation program.

27. As noted, Mr Gardner’s expected completion date is 27 September this year. Accordingly,

I stood the matter over until after this date.

I certify that the preceding twenty-seven [27]

numbered paragraphs are a true copy of the Reasons

for Sentence of her Honour Chief Justice McCallum

Associate:

Date: 21 August 2023