R v Gordon (a pseudonym) (Unreported, County Court of Victoria, Judge Wilmoth, 7 December 2012)
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CRIMINAL LAW – Application for leave to appeal against sentence imposed in December 2012 – Sexual offences – Serious sexual offender – Applicant under sentence imposed in November 2011 for similar offending – Part cumulation of sentences, and part cumulation of total effective sentence upon total effective sentence earlier imposed – New overall head sentence of 19 years and 6 months imprisonment – New non-parole period of 15 years imprisonment, to commence December 2012 – Non-parole period effectively 16 years and one month – Whether judge erred by discounting utilitarian value of guilty plea because of gravity of offending – Non-exceptional case – Whether new head sentence and/or new non-parole period infringed totality principle – Whether judge erred by stating that regard had to ‘principle of totality in order to avoid a crushing sentence’ – Relationship between totality principle and s6E, Sentencing Act 1991 – Whether new non-parole period manifestly excessive – Correct concession by Crown that non-parole period proportionately too great – Other errors inconsequential – Application granted – Appeal allowed in part – Appellant re-sentenced in respect of non-parole period only.
John Gordon,[1] (conveniently, ‘the applicant’) having pleaded guilty to three charges of sexual penetration of a child under 10, was sentenced in the County Court on 7 December 2012 to five years’ imprisonment on each charge. Two years of the sentence on each of Charges 2 and 3 were cumulated on each other and on the sentence on Charge 1. The total effective sentence was thus nine years’ imprisonment. The applicant was then serving a total effective sentence of 14 years and six months imprisonment for other sexual offences. In respect of that sentence, imposed on 9 November 2011, the judge had fixed a non-parole period of 11 years imprisonment. The judge on 7 December 2012 cumulated five years of the sentence which she imposed on the sentence which the applicant was then undergoing. The overall total effective sentence thus became 19 years and six months’ imprisonment. The judge fixed a new non-parole period of 15 years’ imprisonment, to commence on 7 December 2012 — that is, the date on which she sentenced the applicant. Because the applicant had by then been under sentence of imprisonment for…
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.
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Details
AGLC
Gordon v The Queen [2013] VSCA 343
Case
[2013] VSCA 343
Decision Date
CaseChat Overview and Summary
Gordon applied for leave to appeal against the sentence imposed by the Supreme Court of Victoria, following his conviction for a series of sexual offences. Gordon had previously been sentenced in November 2011 for similar offences and was now serving a sentence at the time of his latest sentencing hearing in December 2012. The Crown accepted that the non-parole period of 15 years imposed for the new offences was disproportionately high, and that the total effective sentence amounted to 16 years and one month. The central issues for the court to determine were whether the judge erred by discounting the utilitarian value of Gordon's guilty plea due to the gravity of his crimes, whether the new head sentence and non-parole period breached the totality principle, and if the new non-parole period was manifestly excessive.
The court considered that the judge's discounting of the utilitarian value of Gordon's guilty plea was not an error, as the case was not exceptional. The court further held that the new head sentence and non-parole period did not infringe the totality principle, despite the judge's statement that he had regard to the principle to avoid a crushing sentence. The court clarified that the totality principle and section 6E of the Sentencing Act 1991 work in tandem, and that the principle does not override the need to ensure an appropriate sentence is imposed. The court found that the new non-parole period was manifestly excessive, and that the Crown's concession on this point was correct. The court found the other errors inconsequential and granted Gordon leave to appeal. The appeal was allowed in part, and Gordon was re-sentenced in respect of the non-parole period only.