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R v Gordon

R v Gordon

Case [2024] QCA 16 16 February 2024

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Gordon [2024] QCA 16

PARTIES:

R
v
GORDON, John Robert
(applicant)

FILE NO/S:

CA No 272 of 2022
DC No 72 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gladstone – Date of Sentence: 11 November 2022 (Clarke DCJ)

DELIVERED ON:

16 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2023

JUDGES:

Mullins P, Bond JA and Williams J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted of one count of wilful damage (count 1), burglary, in the night (count 3) and assault occasioning bodily harm, in company (count 4) – where the applicant was acquitted of malicious act with intent (count 2) but convicted of the alternative offence of grievous bodily harm – where the applicant was sentenced to imprisonment for seven years and six months for grievous bodily harm and lesser concurrent sentences for the other offences – where the applicant applies for leave to appeal against sentence – where the applicant had an extensive criminal history – where the prosecutor’s written submissions contained an error in summarising the applicant’s previous sentences for two offences – whether the sentencing judge erred in the finding made as to the nature and seriousness of the applicant’s criminal history

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant who was 37 years old at the date of the offending with an extensive and serious criminal history was convicted after trial of grievous bodily harm and was sentenced to imprisonment for seven years and six months – where a serious violent offence declaration was made – whether the serious violent offence declaration renders the sentence manifestly excessive – where the co-offender who was 19 years old at the date of the offending with no criminal history pleaded guilty to malicious act with intent was sentenced to seven years’ imprisonment without a serious violent offence declaration – where the sentencing judge had regard to the sentence imposed on the co-offender and the principles of parity – where the applicant offered to plead guilty to grievous bodily harm prior to trial – where the applicant did not plead guilty to grievous bodily harm at the trial – where the relevance of the cooperation of the applicant with the administration of justice by the offer to plead guilty prior to the trial was diminished by the conduct of the applicant in relation to the trial

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
R v Bryan; ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited
R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited
R v Lyon[2006] QCA 146,…

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 R v Gordon

Details

AGLC: R v Gordon [2024] QCA 16
Case: [2024] QCA 16
Decision Date: 16 February 2024

CaseChat Overview and Summary

The case of R v Gordon involved an appeal against sentence by the applicant, who was convicted of various offences including grievous bodily harm, burglary, and assault occasioning bodily harm. The applicant had an extensive criminal history and was sentenced to imprisonment for seven years and six months for grievous bodily harm, with lesser concurrent sentences for the other offences. The applicant applied for leave to appeal against the sentence, arguing that the sentencing judge erred in the finding made as to the nature and seriousness of their criminal history and that the sentence was manifestly excessive.

The court was required to decide whether the sentencing judge had erred in their assessment of the applicant’s criminal history and whether the sentence imposed was manifestly excessive. The court noted that the applicant had an extensive and serious criminal history and that the sentencing judge had considered the principles of parity in relation to the sentence imposed on the co-offender. The court also considered the applicant’s offer to plead guilty to grievous bodily harm prior to the trial, although this was diminished by the applicant’s conduct in relation to the trial. The court found that there was no error in the sentencing judge’s assessment of the applicant’s criminal history and that the sentence imposed was not manifestly excessive.

The court found that the serious violent offence declaration did not render the sentence manifestly excessive, as the sentencing judge had regard to the sentence imposed on the co-offender and the principles of parity. The court also found that the relevance of the applicant’s offer to plead guilty prior to the trial was diminished by their conduct in relation to the trial. The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Gordon [2024] QCA 16

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

The Queen v Phan
[2021] QCA 86 Para 17

…ame offences.[34] Accordingly, the issue of parity in sentences arises for consideration. [33] Green v The Queen (2011) 244 CLR 462 at [30]; R v Phan [2021] QCA 86 at [12]. [34]Mr Sadowski was charged with an additional Count 5 of wilful damage.…
R v Free; Ex parte
[2020] QCA 58

…A Crim R 489; [2003] QCA 18, cited R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited R v Lyon [2006] QCA 146, considered R v Marshall [1995] 1 Qd R 673; [1994] QCA 161, considered R v Noltenius [2014] QCA 303, cited Western Australia v Auckram (2015) 229 A Crim R 397; [2013] WASCA 2…
R v Noltenius
[2014] QCA 303 Para 3

…The comparative authorities referred to by the sentencing judge are R v Bryan; ex parte Attorney-General (Qld) [2003] QCA 18 and R v Noltenius [2014] QCA 303. The sentences imposed in those cases was six years and no serious violent offence declaration[52] and seven years with a serious violent offence declaratio…
The State of Western Australia v Auckram
[2013] WASCA 256

…ered R v Noltenius [2014] QCA 303, cited Western Australia v Auckram (2015) 229 A Crim R 397; [2013] WASCA 256, considered COUNSEL: J B Horne for the applicant S L Dennis for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent…
Green v The Queen; Quinn v The Queen
[2011] HCA 49

…y the conduct of the applicant in relation to the trial Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited R v Bryan; ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited R v Lyon [2006] QCA 146, consi…
R v Parker
[2011] QCA 198 Para 22

…ure age and relevant history, taking into account his conviction for a less serious offence and his lesser role in the offending.[42] [41] R v Parker [2011] QCA 198 at [36]; R v King & Morgan; ex parte Attorney-General [2002] QCA 376. [42]The applicant also refers to the applicant’s offer to plead guilty to that…
R v Lyon
[2006] QCA 146 Para 4

…The applicant relies on the approach in R v Lyon [2006] QCA 146 at [27]-[28] to the effect that an offender’s offer to plead guilty to the offence of which he was subsequently convicted is a relevant matter either as supportive of the offender’s cooperation with the administration of justice or as demonstration o…
R v Bryan; ex parte Attorney-General
[2003] QCA 18 Para 3

…The comparative authorities referred to by the sentencing judge are R v Bryan; ex parte Attorney-General (Qld) [2003] QCA 18 and R v Noltenius [2014] QCA 303. The sentences imposed in those cases was six years and no serious violent offence declaration[52] and seven years with a serious violent offence declarati…
R v King & Morgan; ex parte
[2002] QCA 376 Para 22

…a less serious offence and his lesser role in the offending.[42] [41] R v Parker [2011] QCA 198 at [36]; R v King & Morgan; ex parte Attorney-General [2002] QCA 376. [42]The applicant also refers to the applicant’s offer to plead guilty to that offence prior to trial. This factor will be discussed further later i…
Postiglione v the Queen
[1997] HCA 26 Para 18

…are to be considered, not just the head sentence.[35] Relevant differences may justify a disparity in the sentences.[36] [35] Postiglione v The Queen (1997) 189 CLR 295, 302. [36] Green v The Queen (2011) 244 CLR 462 at [31].…
R v Marshall
[1994] QCA 161

…80; [2020] QCA 58, cited R v Lyon [2006] QCA 146, considered R v Marshall [1995] 1 Qd R 673; [1994] QCA 161, considered R v Noltenius [2014] QCA 303, cited Western Australia v Auckram (2015) 229 A Crim R 397; [2013] WASCA 256, considered COUNSEL: J B Horne for the applicant S L Dennis for the respondent SOLICITO…
House v R
[1936] HCA 40 Para 5

…licant must show that a relevant mistake of fact was made by the sentencing judge in exercising the sentencing discretion: see House v The King (1936) 55 CLR 499, 505. Ground 1 is, in effect, an assertion that the sentencing judge made a mistake of fact as to the seriousness of the applicant’s criminal history due t…
House v The King
63 WN 176 Para 5

…le error, the applicant must show that a relevant mistake of fact was made by the sentencing judge in exercising the sentencing discretion: see House v The King (1936) 55 CLR 499, 505. Ground 1 is, in effect, an assertion that the sentencing judge made a mistake of fact as to the seriousness of the applicant’s criminal hi…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 5)

CITATION:	R v Gordon [2024] QCA 16
PARTIES:	R v GORDON, John Robert (applicant)
FILE NO/S:	CA No 272 of 2022 DC No 72 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gladstone – Date of Sentence: 11 November 2022 (Clarke DCJ)
DELIVERED ON:	16 February 2024
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2023
JUDGES:	Mullins P, Bond JA and Williams J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted of one count of wilful damage (count 1), burglary, in the night (count 3) and assault occasioning bodily harm, in company (count 4) – where the applicant was acquitted of malicious act with intent (count 2) but convicted of the alternative offence of grievous bodily harm – where the applicant was sentenced to imprisonment for seven years and six months for grievous bodily harm and lesser concurrent sentences for the other offences – where the applicant applies for leave to appeal against sentence – where the applicant had an extensive criminal history – where the prosecutor’s written submissions contained an error in summarising the applicant’s previous sentences for two offences – whether the sentencing judge erred in the finding made as to the nature and seriousness of the applicant’s criminal history CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant who was 37 years old at the date of the offending with an extensive and serious criminal history was convicted after trial of grievous bodily harm and was sentenced to imprisonment for seven years and six months – where a serious violent offence declaration was made – whether the serious violent offence declaration renders the sentence manifestly excessive – where the co-offender who was 19 years old at the date of the offending with no criminal history pleaded guilty to malicious act with intent was sentenced to seven years’ imprisonment without a serious violent offence declaration – where the sentencing judge had regard to the sentence imposed on the co-offender and the principles of parity – where the applicant offered to plead guilty to grievous bodily harm prior to trial – where the applicant did not plead guilty to grievous bodily harm at the trial – where the relevance of the cooperation of the applicant with the administration of justice by the offer to plead guilty prior to the trial was diminished by the conduct of the applicant in relation to the trial Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited R v Bryan; ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited R v Lyon[2006] QCA 146,…