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…

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 3)

Details

AGLC: R v Gardner (No 3) [2023] ACTSC 229
Case: [2023] ACTSC 229
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Jaiden Dale Gardner faced proceedings for breaching a good behaviour order, which was part of a suspended sentence. The order was initially imposed by Elkaim J for a grievous bodily harm offence committed on 7 February 2020. The breach occurred when Gardner possessed a taser on 4 September 2021, indicating a relapse into drug use. The case raised legal issues regarding the appropriateness of prioritizing rehabilitation over further imprisonment, especially given Gardner's history of successful rehabilitation and his current progress in treatment.

The court examined the circumstances of the breach in the context of Gardner's extensive criminal history, which includes a history of drug addiction and previous successful rehabilitation efforts. Gardner's background, marked by childhood abuse and early exposure to substance abuse, was considered in light of the Bugmy principles. The court acknowledged Gardner's efforts to overcome his addiction, including his participation in SMART Recovery and his current enrollment in a residential rehabilitation program at Arcadia House. The court emphasized the importance of rehabilitation, especially given Gardner's demonstrated commitment and the support from his family and rehabilitation programs.

Given these considerations, McCallum CJ decided to stand the matter over until after Gardner's completion of the residential rehabilitation program, expected on 27 September 2023. The court determined that further imprisonment would not be in the best interest of justice, given Gardner's progress and the likelihood of successful rehabilitation. This decision reflects the court's commitment to addressing the root causes of criminal behavior and supporting rehabilitation efforts.

The court's final orders included standing the matter over until after Gardner's completion of the rehabilitation program, providing him the opportunity to continue his recovery without the additional burden of imprisonment. This decision underscores the court's focus on rehabilitation and the potential for Gardner to reintegrate into society as a law-abiding citizen.

Orders