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Gordon v The Queen

Gordon v The Queen

Case [2017] NSWCCA 199 23 August 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gordon v R [2017] NSWCCA 199
Hearing dates: 9 August 2017
Decision date: 23 August 2017
Before: Gleeson JA at [1]
Harrison J at [58]
Button J at [59]
Decision:
(1) Grant leave to appeal against sentence.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – late plea of guilty to two offences of supplying prohibited drugs – where total effective sentence of 2 years, 8 months with non-parole period of 1 year, 10 months – where applicant sought to tender new evidence to establish father’s terminal illness – where applicant was aware of father’s illness before sentence but did not raise the matter with his legal representative or in evidence – where no complaint of incompetent legal representation – whether Court should exercise discretion to admit new evidence – whether miscarriage of justice – whether sentence imposed was manifestly excessive.
Legislation Cited: Confiscation of Proceeds of Crime Act 1989 (NSW), s 18
Crimes Act 1900 (NSW), s 193C(1)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Drug Misuse and Trafficking Act 1985, s 25(1)
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: Bonett v R [2013] NSWCCA 234
Cornwell v R [2015] NSWCA 269
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Goodwin v R (1990) 51 A Crim R 328
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2015] NSWCCA 330
Kanaan v R [2006] NSWCCA 109
Khoury v R [2011] NSWCCA 118
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
Luu v R [2008] NSWCCA 285
R v Fordham (1997) 98 A Crim A 359
R v Jones [2002] NSWCCA 494
R v Maslen and Shaw (1995) 79 A Crim R 199
R v Smith (1987) 44 SASR 587
Turkmani v R [2014] NSWCCA 186
Vaiusu v R [2017] NSWCCA 71
Zreika v R (2012) A Crim R 460; [2012] NSWCCA 44
Category: Sentence
Parties: Blake Anthony Gordon (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant (Self-represented)
M Cinque SC (Respondent)
Solicitors:
N/A (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/207906
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 May 2016

Before:

Judge D Arnott SC

File Number(s):

2014/207906

Judgment

GLEESON JA: The applicant, Blake Anthony Gordon, pleaded guilty upon his arraignment for trial in the District Court on 25 January 2016 to two offences of supplying prohibited drugs contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1). Count 1 involved 39.7 grammes of 3,4-methylenedioxyamphetamine (MDMA or ecstacy). Count 2 involved 3.47 grammes of crystalline methylamphetamine (ice). Each offence carries a maximum penalty of 15 years imprisonment. There is no prescribed standard non-parole period.
He was sentenced by Judge Arnott SC in the District Court on 27 May 2016 to a term of imprisonment on each count as follows:

count 2:…

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 The Queen

Details

AGLC: Gordon v The Queen [2017] NSWCCA 199
Case: [2017] NSWCCA 199
Decision Date: 23 August 2017

CaseChat Overview and Summary

In Gordon v The Queen, the applicant, Gordon, appealed against the sentence imposed by the Court of Appeal for his conviction of two offences of supplying prohibited drugs. Gordon had pleaded guilty to the charges but did so late in the proceedings. The sentence was a total of 2 years and 8 months, with a non-parole period of 1 year and 10 months. Gordon sought to introduce new evidence to demonstrate that his father was terminally ill, a fact he was aware of prior to sentencing but had not raised with his legal representative or in evidence. Despite this, Gordon did not argue that his legal representation was inadequate. The central issues before the court were whether the Court should exercise its discretion to allow the new evidence, if Gordon had suffered a miscarriage of justice, and whether the sentence was excessively severe.

The court examined the circumstances under which Gordon became aware of his father’s terminal illness and considered whether this constituted exceptional circumstances warranting the admission of new evidence. The court held that Gordon's awareness of his father’s illness prior to sentencing and his failure to communicate this to his legal representative or in evidence meant that it was not an exceptional circumstance. Furthermore, the court found that there was no miscarriage of justice, as Gordon had not demonstrated that the outcome of the proceedings would have been different if the new evidence had been known. The court also assessed the severity of the sentence and concluded that it was not manifestly excessive given the nature and circumstances of the offences.

In light of the above, the court dismissed Gordon’s application for leave to appeal against his sentence. The court determined that the sentence was within the range appropriate for the offences committed and that there was no basis for the Court to exercise its discretion to admit new evidence. The court’s decision underscored the importance of timely communication between a defendant and their legal representative, especially regarding potentially mitigating factors such as family circumstances.

Orders