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…

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 4)

Details

AGLC: R v Gardner (No 4) [2023] ACTSC 275
Case: [2023] ACTSC 275
Decision Date

CaseChat Overview and Summary

In the case of R v Gardner (No 4), the Supreme Court of the Australian Capital Territory addressed the issue of resentencing for Jaiden Dale Gardner, who had breached a good behaviour order after previously pleading guilty to the offence of occasioning grievous bodily harm. The court was required to determine an appropriate sentence that would reflect Mr Gardner's participation in a residential rehabilitation program and his commitment to rehabilitation. This involved considering the time spent in the program and any relevant time in custody, as well as the principles of sentencing and the need to provide an appropriate reward for his rehabilitation efforts.

The court examined Mr Gardner's engagement with the therapeutic process and the positive changes he had made, as evidenced by a letter from the senior case manager at Arcadia House. The court acknowledged Mr Gardner's motivation to change his life and his active participation in the rehabilitation program. The decision also took into account the precedents set by similar cases in other jurisdictions, which recognised time spent in rehabilitation as part of the sentence. In light of these factors, the court decided to cancel the existing good behaviour order and impose a new suspended sentence, recognising the time spent in rehabilitation and the progress made by the offender.

The court ordered the cancellation of the good behaviour order made by Elkaim J on 12 October 2020 and resentenced the offender for the offence of occasioning grievous bodily harm. The new sentence was eight months imprisonment, suspended with immediate effect, on the condition that the offender enter a good behaviour order for a period of eight months with specific conditions, including completing the residential program, accepting supervision, and attending any programs and counselling as directed. This decision aimed to provide Mr Gardner with a reward for his efforts in rehabilitation and to support his continued progress.

Orders