The Queen v PM (No 2)

[2015] ACTSC 358

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Gardner (No 5)
Citation:	[2025] ACTSC 41
Hearing Date:	18 February 2025
Decision Date:	18 February 2025
Before:	Taylor J
Decision:	See [51].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour orders attached to suspended sentence orders –– offender on pathway to rehabilitation – breach offences of low objective seriousness – family considerations – offender is full- time carer for young daughter – illicit substance use – good behaviour orders cancelled – offender resentenced to
suspended terms of imprisonment
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 107(2),
110
Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA
Cases Cited:
2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 R v BC [2020] ACTSC 308 R v Gardner (No 3) [2023] ACTSC 229 R v Gardner (No 4) [2023] ACTSC 275 R v Gardner [2020] ACTSC 278 R v Gardner [2022] ACTSC 36 R v Kelly (No 2) [2021] ACTSC 253 Saga v Reid [2010] ACTSC 59 Tanner v Brown [2011] TASSC 59
The Queen v PM (No 2) [2015] ACTSC 358
Parties:	Director of Public Prosecutions (Crown)
Jaiden Dale Gardner (Offender)
Representation:	Counsel
E Bayliss (DPP)
S Lynch (Offender)
Solicitors
ACT Director of Public Prosecutions
Aboriginal Legal Service (Offender)
File Numbers:	SCC 77 of 2020 SCC 153 of 2021
TAYLOR J:

REVISED EX TEMPORE REASONS

Introduction

1․	On 18 December 2024, the offender, Jaiden Dale Gardner was sentenced in the ACT
Magistrates Court for two offences committed on 17 January 2024, namely possessing
a drug of dependence and attempting to take a motor vehicle without consent. Those
sentences were imposed after the offender appeared before the Galambany Circle
Sentencing Court.
2․	For the drug offence, the offender was fined. For the attempted theft of a motor vehicle,
a fully suspended period of imprisonment was imposed upon the offender entering an
undertaking to be of good behaviour for 12 months.
3․	Both offences place the offender in breach of two sentencing orders from this Court. In
addition to sentencing the offender, the Magistrate committed the offender to this Court
for the breaches to be dealt with.
4․	It is useful to set out some of the history to clarify what is necessary for these proceedings
to resolve.
5․	On 12 October 2020 in R v Gardner [2020] ACTSC 278 (‘Gardiner (No 1)’), Elkaim J
sentenced the offender for the offence of occasioning grievous bodily harm
(SCCAN126/2020) committed on 7 February 2020. On that occasion, Elkaim J
sentenced the offender to 12 months of imprisonment to commence on 12 July 2020 and
end on 11 July 2021. The sentence of imprisonment was suspended immediately on
condition that the offender enter a GBO for a period of 12 months from 12 October 2020
and accept the supervision of ACT Corrective Services.
6․	On 4 September 2021, the offender committed the offence of possessing a prohibited
weapon, which was in breach of the GBO imposed by Elkaim J. This offence was dealt
with by me in the Magistrates Court on 6 December 2022, a matter to which I will return.
7․	On 4 March 2022, Norrish AJ dealt with the offender in R v Gardner [2022] ACTSC 36
(Gardiner (No 2)) for the offence of intentionally inflicting grievous bodily harm
(SCCAN113/2021). This offence occurred on 28 March 2020 while the offender was on
remand in the Alexander Maconochie Centre awaiting sentence for the offence dealt with
by Elkaim J in Gardiner (No 1).
8․	Acting Justice Norrish sentenced the offender to three years of imprisonment
commencing on 21 October 2021. The period of imprisonment was partially suspended
from 21 April 2023 after the offender had served 1 year, 6 months and 1 day on condition that the offender comply with a GBO and accept supervision from ACT Corrective
Services for 18 months.
9․	Returning to the offence of possessing a prohibited weapon committed by the offender
on 4 September 2021. When I sentenced the offender on 6 December 2022, in addition
to sentencing the offender to a period of imprisonment for three months imposed
concurrently with the sentenced imposed by Norrish AJ, pursuant to s 107(2) of the
Crimes (Sentence Administration) Act 2005 (ACT), I committed the offender to this Court
to be dealt with for the breach of the GBO imposed by Elkaim J in Gardner (No 1).
10․	On 29 September 2023 McCallum CJ dealt with the offender’s breach of the GBO
imposed by Elkaim J: R v Gardner (No 4) [2023] ACTSC 275. Her Honour had previously
adjourned the breach proceedings to allow for the offender to complete a residential
rehabilitation program to which he had been admitted: R v Gardner (No 3) [2023] ACTSC
229.
11․	In Gardner (No 4) McCallum CJ made the following orders at [10]:

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.

12․	The effect of these orders was that the period of imprisonment imposed and suspended
by her Honour was to be served concurrently with the sentence of imprisonment imposed
and partially suspended by Norrish AJ.

Current breach action

13․	This brings me to the current proceedings.
14․	On 18 December 2024, the offender was convicted and sentenced in the Magistrates
Court for the two offences that I have identified which were committed on 17 January
2024.
15․	These offences (the breach offences) place the offender in breach of the Suspended
Sentence Orders (SSOs) imposed by Norrish AJ on 4 March 2022 in Gardner (No 2) and
McCallum CJ on 29 September 2023 in Gardner (No 4).
16․	Section 110(1) and (2) of the Crimes (Sentence Administration) Act sets out the court’s
task:

Cancellation of good behaviour order with suspended sentence order

(1) This section applies if—

(a) an offender’s good behaviour order was made under the Crimes

(Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the

offender’s conviction for an offence; and

(b) a court is satisfied the offender has breached any of the offender’s good

behaviour obligations.

(2) The court must cancel the good behaviour order and either—

(a) impose the suspended sentence imposed for the offence; or

(b) re-sentence the offender for the offence.

17․	In this jurisdiction, there is no presumption in favour of the imposition of a sentence that
was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC
308 at [35]. It is well recognised, however, that a failure by courts to act where there has
been a clear breach of the bond by which the offender avoided being subjected to full-
time imprisonment, is likely to bring suspended sentences into disrespect: Director of
Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23] cited in
The Queen v PM (No 2) [2015] ACTSC 358 at [19] and Saga v Reid [2010] ACTSC 59
at [99]-[101]. In The Queen v PM, Refshauge J highlighted the need for proportionality
and identified that justice may require a response that does not involve the imposition of
the sentence that was suspended, invoking the observation of Wood J in Tanner v Brown
[2011] TASSC 59 at [94]:

Ultimately, the question of whether it would be unjust to activate a suspended sentence will depend on an evaluation of the individual circumstances of each case. In assessing this

question of whether it would be unjust to activate the sentence “the objective of the suspended sentence option as reformative as well as penal” is to be borne in mind. Thus,

relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation. Some of the factors mentioned in the judgments in [R v Buckman (1988) 47 SASR 403] and [R v Marston (1993) 60 SASR 320] are indicative of this consideration: disproportion between the original offence and the breaching offence or offences; whether the nature of the offence suggested that the offender has lapsed into a non-law-abiding way of life; and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed. Allied to this consideration were the matters referred to in Buckman that the offender was making a genuine attempt at rehabilitation and that there had been an observance of the conditions of the suspended sentence for 18 months. In summary, relevant to the reformative aspects of the suspended sentence option is whether the suspended sentence is having its desired effect in terms of rehabilitation of the offender. See also Stanitzki v Higgins (1994) 63 SASR 309.

18․	In R v Kelly (No 2) [2021] ACTSC 253 at [15], Refshauge AJ identified the following
factors as relevant to the question of whether the suspended sentence should be
imposed or the offender re-sentenced:

(a)	the proportion of the GBO served before the breach occurred;
(b)	the rehabilitation achieved in the time during which the GBO has been served;
(c)	the prospects of further rehabilitation;
(d)	the relative seriousness of the offence, or offences, which constituted the

breach of the GBO, and, in particular, whether imposing the suspended

sentence would be disproportionate to that seriousness;

(e)	whether the breaching offence, or offences, is, or are, of similar conduct;
(f)	whether the breach is, or breaches are, so serious as to show a disregard of

the need to be of good behaviour;

(g) whether the offender has been warned of the breaches, especially if they are

not breaches constituted by further offending;

(h) the offender’s level of understanding of the obligations and the terms of the

GBO and of the consequences of the breach; and

(i)       the nature of judicial and community resources previously devoted to the

offender.

Consideration

19․	I am satisfied on the material before me that the offender is in breach of the GBOs made
as part of the SSOs imposed upon him in Gardner (No 2) and Gardner (No 4).

20․ Accordingly, I must determine whether to impose the suspended sentences or

re-sentence the offender. I have had regard to the facts of the original offences as

outlined in the sentencing remarks to which I have referred. I have also had regard to

the statement of facts for the breach offences.

21․	The breach offences occurred on 17 January 2024 almost 4 months into the 8-month
GBO imposed by McCallum CJ and some 9 months into the 18-month GBO imposed by
Norrish AJ. In effect, the breach offences occurred halfway through each order. The
GBOs in each case have now expired.
22․	The breach offences, being possession of a drug of dependence and attempting to take
a motor vehicle without consent, are offences of a substantially different nature to the
offences subject to the GBOs, which were both serious violent offences. Both parties accepted that the breach offences were not serious examples of either offence and were
of low objective seriousness.
23․	While subject to the GBOs, the offender demonstrated a commitment to his rehabilitation
by seeking assistance with his use of illicit substances at multiple residential
rehabilitation programs, including Arcadia, Ngunnawal Bush Healing Farm, Triple Care
Farm and Oolong House.
24․	Counsel for the offender highlighted a factor conceded by the prosecution to be relevant
and that is, when the breach offences were committed, the offender was experiencing a
particularly difficult period. At the end of 2023 and early 2024, the offender was homeless
and was unable to have contact with his children. These factors caused a significant
setback in his rehabilitative efforts, and he returned to drug use.
25․	Compounding those difficulties, on the day the breach offences were committed, the
offender’s 14-year-old brother was involved in a fatal motor vehicle collision where a 19-
year-old passenger died. The offender’s brother was hospitalised and sadly, also died
in August 2024.
26․	Upon reviewing the transcript from his appearance before the Galambany Circle Court
on 18 December 2024, it was apparent that the offender was frank with the Elders Panel
and demonstrated insight into the reasons for his relapse. The offender also expressed
shame at having returned to using illicit substance use despite having successfully
completed several residential rehabilitation programs.
27․	Since the breach offences and the devastating event of his brother’s death, a number of
positive changes have occurred in the offender’s life. He has had stable accommodation
since October 2024, with the assistance of the St Vincent de Paul. He also now has full-
time care of his youngest daughter and is focused on achieving stability for her, which
includes ensuring she attends school and extra-curricular activities.
28․	A letter tendered from the school his daughter attends reported that she now has a 76
per cent attendance rate, and the offender has “developed a positive relationship with
the school, attending [his daughter]’s learning journey and seeking parenting resources”.
29․	The material before me included a Pre-Sentence report (PSR) dated 5 November 2024.
No updated report was sought. The author of the report recorded that the offender
appeared to “have had a shift in perception and goals” following the traumatic loss of his
brother and since becoming full-time carer for his daughter. The report further noted that
“[the offender’s] desire to give his daughter a better childhood had influenced him to
cease ties with anti-social friends and associations”.
30․	The PSR recorded that the offender has returned “positive” results to urinalysis, though
in each instance the substance detected was authorised by a medical prescription. The
offender gave evidence, to which I will come, indicating that he is now clean and sober.
There was no challenge to that evidence. In support of this, the offender has remained
under ACT Corrective Services’ supervision until very recently, and no breaches were
alleged, including with respect to urinalysis results.
31․	The PSR also noted that the offender has taken positive steps towards addressing his
use of illicit substances since the breach offence, including participating in Narcotics and
Alcoholics Anonymous groups, the SMART recovery program at Yeddung Mura, and
continuing drug and alcohol counselling with Directions Health Services and Karralika.
32․	Letters were tendered authored by staff from Yeddung Mura dated 4 November 2024,
18 November 2024 and 14 February 2025. The letters confirmed that the service
continued to offer counselling to the offender to address alcohol and drug issues as well
as counselling for his grief and loss. The letters also outlined the significant hours the
offender has spent engaging with services at Yeddung Mura. In February 2025, the
offender commenced a Certificate III in Community Services at Canberra Institute of
Technology, Yurauna Centre, which includes a drug and alcohol education component.
33․	The offender is now 29 years of age and first commenced drug use at 13 years of age.
It is unsurprising, in those circumstances, that addiction has plagued him. It is also
unsurprising that maturity may have assisted him to develop insight into the effect drug
use has had on his life and his relationships. A view consistent with the evidence he gave
in the proceedings.
34․	The offender is a First Nations man and appears to have a wide extended family.
Although he reported limited cultural connection, he expressed a desire to foster greater
connectivity with his family and his heritage revealed in his ongoing connection with
specific services for First Nations people in the ACT.
35․	Mr Gardner gave evidence confirming his awareness of the seriousness of these breach
proceedings and that he understood they raise the prospect of a return to full-time
imprisonment. He described having made, in more recent times the “most progress” he
has ever achieved in his adult life, notwithstanding the devastation he experienced from
the death of his brother. He has enrolled in study. He is now medicated after being
diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The offender has not
ever been medicated for this disorder, and he described it as making a significant positive
difference to his overall wellbeing; so too a prescription for medicinal cannabis, which he
explained is assisting him to remain abstinent from the use of other illicit substances.
36․	The offender set out a plan for his future which included that he hopes his study will equip
him to work with people experiencing drug and alcohol challenges. In addition, the
offender highlighted the significant supports he is receiving from Yeddung Mura and
described the difference this support is making to his everyday life. He confirmed that
he now has stable ongoing accommodation where he lives with his daughter.
37․	The offender’s daughter remains in his full-time care. He unexpectedly came into that
role soon after the death of his brother. He identified his daughter as providing him with
purpose and a sense of responsibility which he said, “he needed”.

38․ The offender attends Narcotics Anonymous meetings regularly, having come to

appreciate the positive effects of accessing that support. He described the ease he felt

engaging with Yeddung Mura explaining, “when I share at NA meetings, especially at

Yeddung Mura, I feel more comfortable”. The offender outlined his daily routine which

is largely focused on his daughter’s needs and extra-curricular activities and his own

commitment to study. The offender identified that the kind of purpose and routine in his

life currently has not ever been a feature of his adult life and that “he needs to stick to

this course” to be able to “stay away from court”.

39․	The offender has a criminal history consistent with long-term illicit substance use and
demonstrative of, it must be acknowledged, a capacity for violent offending. The criminal
history reveals that he has had mixed success with community-based sentences in the
past. His difficulty complying in the past with community-based sentences is a relevant
consideration.
40․	The current breach offences are significantly less serious than the original offences and
less serious than breaching conduct in which he has engaged in the past. Despite the
offender’s mixed success, he has consistently sought out opportunities to pursue
rehabilitation and a return to full-time custody would undoubtedly jeopardise the progress
I acknowledge he has made in more recent times. It is useful to recall McCallum CJ’s
observations in Gardner No 3 at [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).

41․	I am not satisfied that the breach offences from January 2024 evince complete disregard
by the offender of the need to be of good behaviour. Rather, the breaching conduct was
reflective of the ongoing challenge that illicit substance use presented to the offender,
influenced by the instability and tragedy he experienced at the time. Abstinence is an honourable aspiration, but it would be naive to think it easily achieved. If managing an
addiction was an easy feat, the volume of matters in this Court’s criminal jurisdiction
would be significantly reduced. The hold of addiction is powerful; something those in the
throes of it know too well. The breaching conduct occurred over a year ago now and
there has been no further offending. This is a significant factor that weighs in favour of
a resentence.
42․	A determination that the sentences should be imposed on the offender would result in
significant hardship for his young daughter, who now relies on the offender entirely. It is
a significant matter to the offender’s credit that he has been assessed as suitable to
assume full parental responsibility for her. I am satisfied that a return to full-time custody
would have significant detrimental effect upon the offender’s daughter and I have taken
this into account.
43․	The prosecution did not submit that the suspended sentences should be imposed.
Indeed, they supported the submission that having regard to the recent and significant
positive changes in the offender’s life, his role as primary carer for his daughter, as well
as the passage of time since the original and the breach offending, the imposition of the
suspended periods of imprisonment would be a disproportionate outcome. This is a
position which also recognised the ongoing challenges the offender continues to face in
relation to his use of illicit substances, the significance of the death of his brother and the
incremental progress he has made notwithstanding those challenges.
44․	The offender presents with strong protective factors which were not present at the time
of the breach offences including responsibility for his daughter which he appears to be
discharging with care, significant engagement with support services, future goals and
stable accommodation.
45․	The offender has now been under some form of supervision, either by ACT Corrective
Services or by the court through the requirement to comply with bail undertakings for a
significant period. The original offences occurred in 2020. [Redacted].
46․	I am satisfied that the offender has many supports in place designed to assist him. Those
supports are not only critical to his compliance with community-based sentencing orders,
but they are also placing him in the best possible position to remain a full-time parent to
his daughter. It may well be a fortunate and timely coincidence that the changes the
offender must maintain in his life to have his daughter remain in his care, are the very
same changes required for him to disengage from the criminal justice system.
47․	The responsibility of caring for his daughter is clearly a powerful motivation for the
offender. I am satisfied that the opportunity for the offender to be the parent he acknowledged his daughter deserves is driving the progress he has made. Should the
offender continue to approach his life driven by that opportunity, his prospect for
successful rehabilitation will only improve.
48․	I am of the view that requiring the offender to continue to engage with ACT Corrective
Services for supervision for a further lengthy period is not warranted. The ongoing
scrutiny of child protection authorities will require that he consistently demonstrate his
suitability as a parent which will include demonstrating that he is managing his use of
illicit substances appropriately.
49․	In my view, this scrutiny is sufficient to guard against the offender slipping into past
behaviours that have ushered him into offending conduct. In circumstances where he
has been the subject of supervision for some years now, and until recently demonstrated
ongoing compliance (significantly in relation to substance use) and he is actively and
consistently engaged with support services, it is appropriate to release him without the
requirement for him to accept supervision from ACT Corrective Services.
50․	I do not intend to deviate from the intention of the Chief Justice when she imposed the
period of imprisonment concurrently with the period of imprisonment imposed by Norrish
AJ.

Orders

51․ For those reasons, the following orders are made:

(1)	The good behaviour order made by McCallum CJ on 29 September 2023 is
cancelled.
(2)	The good behaviour order made by Norrish AJ on 4 March 2022 is cancelled.
(3)	The offender is resentenced in relation to the offence of occasioning grievous
bodily harm (SCCAN126/2020) to 8 months of imprisonment. The period of
imprisonment is suspended immediately on condition that the offender enter a
good behaviour order for 12 months.
(4)	The offender is resentenced in relation to the offence of intentionally inflicting
grievous bodily harm (SCCAN113/2021) to 3 years of imprisonment
suspended today, the offender having served 1 year, 6 months and 1 day on
condition that the offender enter a good behaviour order for 18 months.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor.

Associate: S Zhang

Date: 3 March 2025