R v Gardner (No 4)

[2023] ACTSC 275

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Gardner (No 4)

Citation: 

[2023] ACTSC 275

Hearing Date: 

29 September 2023

Decision Date: 

29 September 2023

Before:

McCallum CJ

Decision: 

(1)    Cancel the good behaviour order made by Elkaim J on 12 October 2020.

(2)    Resentence the offender for the offence of occasioning grievous bodily harm to eight months imprisonment, commencing 29 September 2023 and ending 28 May 2024.  The imprisonment is suspended with immediate effect on condition that the offender enter a good behaviour order for a period of eight months on the core conditions and the following additional conditions:

(a)  Complete stage four of his residential program, being the Arcadia House Day Program, which he is expected to complete on 26 October 2023;

(b)  To accept supervision of ACT Corrective Services and obey all directions; and

(c)   Attend any programs and counselling as directed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of good behaviour order – deferred sentence – cancellation of good behaviour with imposition of suspended sentence – time spent in residential rehabilitation – where the offender has embraced the therapeutic process

Cases Cited: 

Akoka v The Queen [2017] VSCA 214

Hughes v R [2008] NSWCCA 48; 185 A Crim R 155

R v Eyles (No 3) [2017] ACTSC 1

R v Gardner (No 3) [2023] ACTSC 229

R v Gardner [2020] ACTSC 278

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.  Mr Gardner has come before me in respect of the breach on a number of occasions.

2․The circumstances relevant to dealing with the breach are set out in my earlier judgment in R v Gardner (No 3) [2023] ACTSC 229. In that judgment at [21] and following, I explained my reasons for in effect dealing with the matter by way of Griffiths remand until Mr Gardner completed a residential rehabilitation program to which he had been admitted.

3․There is before the Court today a letter from Mick Miller, the senior case manager at Arcadia House dated today, which tells an extremely heartening story of Mr Gardner's experience of the residential rehabilitation program.  Mr Miller states that Mr Gardner has successfully completed the residential component of the program and addresses, in some detail, the extent to which Mr Gardner engaged with the therapeutic purposes of that program.  Mr Miller says:

Jaiden is motivated to change his life in order to be a better father figure for his children, he has worked on becoming more principled and understands the importance of surrounding himself with people who role-model appropriate behaviours.  Jaiden has demonstrated a strong commitment to the program and has actively engaged in the therapeutic process, consistently participating in all aspects of treatment.  I have witnessed Mr Gardner hold himself and others accountable and embrace the principles of recovery.  It has been a pleasure to watch Jaiden make such positive behavioural and lifestyle changes and to witness the sincere desire to do so.  I honestly believe that Jaiden has a newfound sense of purpose and determination to lead a productive life and remain abstinent.

4․Based on my own observations of Mr Gardner during the course of these proceedings, as limited as they have been, I also have observed him appear to embrace the therapeutic process and engage with the processes of the Court in a constructive and apparently positive way. 

5․For those reasons, I am satisfied, as submitted by Mr Edmonds on his behalf, that it is appropriate to finalise the proceedings today.  Finalisation of the proceedings today will, I think, give Mr Gardner the reward and positive endorsement he deserves for the hard work he has done in undertaking residential rehabilitation, which is well understood to be a difficult path.

6․Mr Edmonds submits that the Court could finalise the proceedings today by imposing a further suspended sentence.  The original partially suspended sentence imposed by Elkaim J was for a period of 12 months.  I am obliged in considering the term of any further suspended sentence to have regard to any time in custody.  As observed by Elkaim J in R v Gardner [2020] ACTSC 278 at [8], it is difficult to work out the precise length of time Mr Gardner spent in prison solely referable to the offence for which his Honour sentenced the offender and which is the offence for which I am now resentencing him.

7․His Honour allowed a period of about three months.  In addition to that period, the offender has spent five days in custody between the time when he completed another sentence imposed subsequently by Norrish AJ and when I granted bail.  He has also spent the period of 12 weeks in the residential rehabilitation program.

8․In that context, Mr Edmonds drew my attention to the decision of Refshauge J in R v Eyles (No 3) [2017] ACTSC 1 at [103]-[105], where his Honour noted the practice of this Court of recognising time spent in specialist residential drug rehabilitation as time to be taken into account. That approach has been adopted in both neighbouring jurisdictions in New South Wales in the decision of the New South Wales Court of Criminal Appeal in Hughes v R [2008] NSWCCA 48; 185 A Crim R 155, and in Victoria in the decision of Akoka v The Queen [2017] VSCA 214 at [104].

9․Having regard to the period of 12 weeks Mr Gardner spent in residential rehabilitation which, as previous correspondence and the correspondence provided today from Arcadia amply demonstrates, must have involved significant hard work on Mr Gardner's part, I propose to allow a further period in the suspended sentence to be imposed today, although there will of necessity be a measure of rough calculation in that respect.

10․In all the circumstances, having regard to Mr Gardner's exemplary progress in his path of rehabilitation treatment, I propose to finalise the proceedings today with the following orders:

(1)Cancel the good behaviour order made by Elkaim J on 12 October 2020.

(2)Resentence the offender for the offence of occasioning grievous bodily harm to eight months imprisonment, commencing 29 September 2023 and ending 28 May 2024.  The imprisonment is suspended with immediate effect on condition that the offender enter a good behaviour order for a period of eight months on the core conditions and the following additional conditions:

(a)Complete stage four of his residential program, being the Arcadia House day program, which he is expected to complete on 26 October 2023;

(b)To accept supervision of ACT Corrective Services and obey all directions; and

(c)Attend any programs and counselling, as directed.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum

Associate:

Date: 22 November 2023