R v Gunner (No 2)

[2021] ACTSC 300

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Gunner (No 2)

Citation:

[2021] ACTSC 300

Hearing Date:

18 November 2021

DecisionDate:

18 November 2021

Before:

Elkaim ACJ

Decision:

See [9]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of intensive correction order – intensive correction order expired – decision not to cancel

Legislation Cited:

Crimes (Sentence Administration) Act2005 (ACT) s 65

Cases Cited:

Madeleine Kubler v Christopher Michael Gunner [2020] ACTMC 6
R v Gunner [2018] ACTSC 372
R v Dimitrov (No 2) [2020] ACTSC 54

Parties:

The Queen ( Crown)

Christopher Michael Gunner ( Offender)

Representation:

Counsel

D Swan ( Crown)

M Kukulies-Smith ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Kamy Saeedi Law ( Offender)

File Numbers:

SCC 271 of 2017; SCC 276 of 2017

ELKAIM ACJ:

1. On 5 November 2018 Burns J sentenced the offender to a total of 17 months’ imprisonment commencing that day and expiring on 4 April 2020. His Honour further ordered that this term of imprisonment be served by way of an Intensive Correction Order (an ICO) (R v Gunner [2018] ACTSC 372). The offences dealt with by his Honour concerned narcotics.

1. The offender breached his ICO on 12 November 2019 when he was found in possession of a prohibited firearm. He was charged with possessing the firearm and, as a separate offence, carrying the firearm on premises in a manner likely to cause reasonable fear of the infliction of injury.

1. The firearm offences were dealt with by Magistrate Morrison on 23 April 2021 (Madeleine Kubler v Christopher Michael Gunner [2020] ACTMC 6). Mr Gunner had defended these charges, but they were found to be proven by the Magistrate. He was sentenced on 5 November 2021 and received a Good Behaviour Order for a period of 12 months in respect of each offence.

1. The question that now arises is what is to be done about breach of the ICO. The firearm offences were committed during the ICO but the ICO has now expired.

1. Similar issues were discussed by Mossop J in R v Dimitrov (No 2) [2020] ACTSC 54. It seems that the options that are available to me under s 65 the Crimes (Sentence Administration) Act 2005 (ACT) are to cancel, or alternatively not to cancel, the ICO. The latter course may only be taken if it is in the interest of justice.

1. It is very apparent from the decision of Burns J that the intent of the ICO was to assist Mr Gunner in dealing with drug issues. I have been informed that in respect of his drug taking, the ICO has been successful.

1. It is to be noted that the firearms offences have nothing to do with narcotics and a reading of the Magistrate’s reasons for finding the offences proved, significantly limit the severity of those offences. That is also reflected in the sentences that were imposed.

1. A cancellation of the ICO may not lead to any further sanction. However there is also a possibility that there may be some consequences arising. If that were to happen the good work achieved by the ICO could well be put at risk. For a person like Mr Gunner rehabilitation is a primary objective. I have come to the conclusion that it is in the interests of justice for me not to cancel the ICO because, as I have already said, it might otherwise be a backwards step in the continuing rehabilitation of Mr Gunner.

1. Accordingly, I decline to cancel the ICO and note that the ICO has now in any event expired. I also add that the Crown, in a clear expression of fairness, has not suggested that I take any other course.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim

Associate:

Date: