Legal Research
Cases
Gordon v Tasmania

Gordon v Tasmania

Case [2020] TASCCA 17 30 November 2020

Appeal

Sentencing

Remedies

Statutory Construction

Criminal Law

Statutory Interpretation

Type to search within this case.

[2020] TASCCA 17

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Gordon v Tasmania [2020] TASCCA 17

PARTIES:  GORDON, Trisha Jean
  v
  STATE OF TASMANIA

FILE NO:  CCA 2070/2020
DELIVERED ON:  30 November 2020
DELIVERED AT:  Hobart
HEARING DATE:  5 October 2020
JUDGMENT OF:  Blow CJ, Pearce J, Porter AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Wounding and two minor assaults – Woman inflicted thin laceration to mother's throat – Mental disorders requiring treatment – Whether sentence of two years' imprisonment with no parole and 12-month community correction order on release manifestly excessive – Where legislation prevents courts from ordering parole eligibility if sentence of two years' imprisonment or less imposed and community correction order made – Head sentence of two years of itself not manifestly excessive – Failure to provide a degree of relief from obligation to immediately serve whole term made sentence manifestly excessive.
Sentencing Act 1997, ss 8, 17(2A).
R v Verdins [2007] VSCA 102, 16 VR 269, applied.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  R Mainwaring
             Respondent:  A Shand^*
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2020] TASCCA 17
Number of paragraphs: 81

^*With deep regret, the Court notes that Crown counsel Allison Shand passed away on 15 November 2020.

Serial No 17/2020
File No CCA 2070/2020

TRISHA JEAN GORDON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
PORTER AJ
30 November 2020

Orders of the Court

Appeal allowed.

Sentencing orders made on 14 August 2020 set aside.

Appellant sentenced to 2 years' imprisonment with effect from 10 October 2019, with 8 months of that sentence suspended on conditions that:
(a)She commit no offence punishable by imprisonment for a period of 18 months from her release.
(b)During that period she is subject to the supervision of a probation officer and must:
(i)     submit to the supervision of a probation officer as required by the probation officer;
(ii)     attend educational or other programs as directed by a probation officer;
(iii)    undergo assessment and treatment for drug and/or alcohol dependency as directed by a probation officer;
(iv)    submit to testing for drug and/or alcohol use as directed by a probation officer;
(v)     submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
The appellant must report to a probation officer at 114 Bathurst Street, Hobart within two clear working days of her release.

Serial No 17/2020
File No CCA 2070/2020

TRISHA JEAN GORDON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
30 November 2020

I agree with the orders proposed by Porter AJ, and with his reasons. There is a little that I would like to add.
When he sentenced the appellant, the learned sentencing judge said, "I backdate the sentence…

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 Tasmania

Details

AGLC: Gordon v Tasmania [2020] TASCCA 17
Case: [2020] TASCCA 17
Decision Date: 30 November 2020

CaseChat Overview and Summary

Gordon appealed against a sentence imposed by the Supreme Court of Tasmania. The appellant had been convicted of wounding and two counts of assault. The wounding involved inflicting a thin laceration to her mother's throat. The appellant suffered from mental disorders that required treatment. The sentence comprised two years' imprisonment with no parole eligibility and, upon release, a 12-month community correction order.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the imposed sentence was manifestly excessive. This question arose in the context of specific legislative provisions that prevented courts from ordering parole eligibility where a sentence of two years' imprisonment or less was imposed concurrently with a community correction order.

The Court reasoned that a head sentence of two years' imprisonment, in isolation, was not manifestly excessive given the nature of the offences. However, the legislative constraint, which effectively mandated that the entire two-year term be served without the possibility of parole, coupled with the subsequent community correction order, meant that the appellant was denied any immediate relief from serving the full custodial term. This failure to provide a degree of relief from the obligation to immediately serve the whole term rendered the sentence manifestly excessive.

The Full Court allowed the appeal, quashed the original sentence, and resentenced the appellant to two years' imprisonment, suspended after 12 months, with a 12-month community correction order.

Orders