SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
R v Gordon
Citation:
[2022] ACTCA 48
Hearing Date:
17 May 2022
DecisionDate:
30 September 2022
Before:
Mossop, Loukas-Karlsson and Rangiah JJ
Decision:
The appeal is dismissed.
Catchwords:
APPEAL – CRIMINAL LAW – Crown appeal against sentence – offences committed in prison – whether sentencing judge erred in the application of ss 64 and 72 of the CS Act and s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) – whether the sentencing judge erred in inviting counsel to submit on a proposed sentence – consideration of the principle in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 – whether sentencing judge erred in applying a 25 percent guilty plea discount – whether sentence manifest inadequacy – residual discretion exercised – appeal dismissed
This is a Crown appeal against a sentence imposed by a judge of the Supreme Court (the primary judge): R v Gordon
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
R v Gordon [2022] ACTCA 48
Case
[2022] ACTCA 48
Decision Date
CaseChat Overview and Summary
This case concerns a Crown appeal against a sentence imposed by the Supreme Court of the Australian Capital Territory. The respondent offender was sentenced for recklessly inflicting grievous bodily harm and possessing a prohibited item, both offences committed while he was already serving a term of imprisonment. The primary judge imposed a sentence of two years and six months for the grievous bodily harm offence, and a wholly concurrent three-month sentence for the prohibited item offence. A key issue was how this new sentence should interact with the offender's existing sentence, particularly in light of legislative provisions that prevented the setting of a non-parole period for offences committed in custody and created a presumption that such sentences should be cumulative.
The legal issues before the appellate court included whether the sentencing judge erred in their application of sections 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) and section 118 of the Crimes (Sentence Administration) Act 2005 (ACT). Additionally, the court considered whether the sentencing judge had erred by inviting counsel to submit on a proposed sentence, contrary to the principle established in *Barbaro v The Queen*. The Crown also argued that the sentencing judge erred in applying a 25 percent guilty plea discount and that the overall sentence was manifestly inadequate.
The appellate court dismissed the Crown's appeal. It reasoned that the sentencing judge had correctly navigated the complex interplay of the relevant legislative provisions concerning sentences for offences committed in custody. The court found that the judge's approach, which involved suspending the sentence after a period of actual custody, was a permissible method to achieve an overall period of detention and allow for a period of community supervision, thereby mitigating the harsh consequences that would otherwise arise from the statutory restrictions on non-parole periods. The court also held that the judge's invitation to counsel to discuss a proposed sentence structure did not offend the principle in *Barbaro v The Queen*, as it was done in the context of understanding how to give effect to the statutory requirements and achieve a just outcome, rather than dictating a sentence. The court found no error in the application of the guilty plea discount or in the overall assessment of the sentence's adequacy.