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Gordon v R

Gordon v R

Case [2018] NSWCCA 54 28 March 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Gordon v R [2018] NSWCCA 54
Hearing dates: 30 January 2018
Decision date: 28 March 2018
Before: Simpson JA at [1]; R A Hulme J at [87]; Hidden AJ at [108]
Decision:
1.   Leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Quash the sentence imposed in the District Court on 13 December 2016.
4.   In lieu, sentence the offender to an aggregate term of imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months. The sentence will date from 18 June 2015. The non-parole period will expire on 17 March 2018 and so the offender is now eligible for release on parole.
Catchwords:
SENTENCING – mitigating factors – plea of guilty – where plea is entered – where aggregate sentence is imposed

SENTENCING – appeal against sentence – sentence contrary to law – where error has occurred – Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 – whether identified error is discrete or whether it has affected the sentencing process

SENTENCING – relevant factors on sentence – Form 1 offences – where discount applied for a plea of guilty – whether timing of an offender’s plea of guilty to offences on Form 1 affects the discount for utilitarian value applied to the primary offence
SENTENCING – appeal against sentence – post-sentence conduct – where resentenced – whether improved prospects of rehabilitation to be considered in sentencing process
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 32, 33, 44, 47, 53A, Pt 3 Div 3, Pt 4 Div 1A
Crimes Act 1900 (NSW), ss 35(4), 59(1), 86(1), 315A, 319, 323, 439
Criminal Appeal Act 1912 (NSW), ss 6, 166
Criminal Procedure Act 1986 (NSW), ss 91, 93, 166, 167
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Daniels v R [2016] NSWCCA 35
Glare v R [2015] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Martin v R [2016] NSWCCA 104
O’Connell v R [2016] NSWCCA 43
R v Bao [2016] NSWCCA 16
R v Borkowski (2009) 195 A Crim R 152; [2009] NSWCCA 102
R v Cahill [2015] NSWCCA 53
R v Dib [2003] NSWCCA 117
R v Harmouche (2005) 158 A Crim R 357; [2005] NSWCCA 398
R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355
R v SY [2003] NSWCCA 291
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Category: Principal judgment
Parties: Leonard Malcolm Gordon (Applicant)
Regina (Respondent)
Representation:
Counsel:
A…

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 Gordon v R

Details

AGLC: Gordon v R [2018] NSWCCA 54
Case: [2018] NSWCCA 54
Decision Date: 28 March 2018

CaseChat Overview and Summary

Gordon was before the court for sentencing in relation to a series of offences. The respondent, the Crown, was appealing the sentence imposed on Gordon, arguing that the original sentence was contrary to law. Gordon, on the other hand, argued that the sentence was fair and appropriate given the circumstances. The court was tasked with determining the appropriate sentence for Gordon and assessing the appeal against the sentence by the Crown.

The legal issues that the court had to decide included whether the error in the original sentencing process was discrete or if it had affected the overall sentencing. The court also had to consider whether the timing of Gordon's plea of guilty to the offences on Form 1 affected the discount for the utilitarian value applied to the primary offence. Another issue was whether improved prospects of rehabilitation should be considered in the sentencing process.

The court found that there was an error in the original sentencing process, but it was discrete and did not affect the overall sentencing. The court also found that the timing of Gordon's plea of guilty did not affect the discount for the utilitarian value applied to the primary offence. The court held that improved prospects of rehabilitation could be considered in the sentencing process. The court resentenced Gordon to an aggregate sentence of five years and eight months imprisonment, with a non-parole period of three years and four months. The court found that this sentence was appropriate given the circumstances and the mitigating factors presented.

In summary, the court found that the original sentence was not contrary to law and that the error in the sentencing process was discrete. The court also found that the timing of Gordon's plea of guilty did not affect the discount for the utilitarian value applied to the primary offence. Finally, the court held that improved prospects of rehabilitation could be considered in the sentencing process. The court resentenced Gordon to an aggregate sentence of five years and eight months imprisonment, with a non-parole period of three years and four months.

Orders