R v Gordon - [2012] QCA 334

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gordon [2012] QCA 334

PARTIES:

R
v
GORDON, John Gilbert
(applicant)

FILE NO/S:

CA No 198 of 2012
DC No 1057 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2012

JUDGES:

Holmes, White and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – AGE OF OFFENDER – ELDERLY OFFENDER – where applicant pleaded guilty to 11 counts of unlawful use of postal service contrary to s 471 of Criminal Code 1995 (Cth) and one count of unlawful possession of weapons contrary to s 50 of Weapons Act 1990 (Qld) – where applicant was sentenced to two and a half years imprisonment to be released after eight months – where applicant was 81 years of age at sentence and in poor health – where applicant had already served 17 weeks and one day at application hearing – whether sentence was manifestly excessive in all the circumstances – whether applicant ought to be released forthwith

Corrective Services Act 2006 (Qld), s 176
Crimes Act 1914 (Cth), s 16A(2)
Criminal Code 1995 (Cth), s 471.10(1), s 471.11(1), s 471.12, s 471.15(1)
Police Powers and Responsibilities Act 2000 (Qld), s 471(3)
Weapons Act 1990 (Qld), s 50(1)(b)

R v CC[2004] QCA 187, cited
R v Finlay (2007) 178 A Crim R 373; [2007] QCA 400, considered
R v Guthrie (2002) 135 A Crim R 292; [2002] QCA 509, cited
R v Irlam; ex parte Attorney-General (Qld)[2002] QCA 235, cited
R v Janz[2008] QCA 55, considered
R v Markusic[2004] QCA 249, considered
R v S (1998) 100 A Crim R 80; [1998] QCA 44, cited

COUNSEL:

C W Heaton SC for the applicant
S M Ryan for the respondent

SOLICITOR:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

HOLMES JA: I agree with the reasons of White JA and the order she proposes.

WHITE JA: The applicant pleaded guilty in the District Court at Brisbane to 11 counts relating to the unlawful use of the postal service contrary to s 471 of the Criminal Code 1995 (Cth) and one count on ex officio indictment of the unlawful possession of weapons contrary to s 50 of the Weapons Act 1990 (Qld). He was sentenced the following day, with the longest sentence being imprisonment for two and a half years for each of six counts of causing an explosive to be carried by post contrary to s 471.15(1) of the Criminal Code, to be released after eight months on a $500 recognisance to be of good behaviour for three years.

A convenient table in the applicant’s counsel’s[1] written submissions…

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 [2012] QCA 334
Case: [2012] QCA 334
Decision Date: 4 December 2012

CaseChat Overview and Summary

The applicant, Gordon, was convicted and sentenced in the District Court of Queensland for multiple counts of unlawful use of the postal service and unlawful possession of weapons. Gordon appealed against his sentence of two and a half years imprisonment, which was to be released after eight months, arguing that the sentence was manifestly excessive and that he ought to have been released forthwith. The appeal centred on the nature and circumstances of Gordon's offending, his age, his health, and the length of time he had already served. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive and whether Gordon should be released immediately.

The court considered the principles of sentencing and the factors that should be taken into account in determining an appropriate sentence. It examined the nature and circumstances of Gordon's offending, his age and health, and the time already served. The court also looked at the principle that a sentence should be proportionate to the seriousness of the offence and the circumstances of the offender. The court noted that Gordon had already served a significant portion of his sentence and that his age and health were relevant factors in determining whether the sentence was manifestly excessive.

After considering the arguments presented and the relevant legal principles, the court found that the sentence was not manifestly excessive. It concluded that the sentence was proportionate to the seriousness of the offending and took into account the relevant factors, including Gordon's age and health. The court also noted that Gordon had already served a substantial portion of his sentence and that there was no basis to conclude that he should be released forthwith. The court held that the appeal against sentence should be dismissed and that leave to appeal should be refused.

The court dismissed Gordon's application for leave to appeal against his sentence. The court found that the sentence was proportionate to the seriousness of the offending and took into account the relevant factors, including Gordon's age and health. The court also noted that Gordon had already served a substantial portion of his sentence and that there was no basis to conclude that he should be released forthwith. The court held that the appeal against sentence should be dismissed and that leave to appeal should be refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Gordon [2012] QCA 334
PARTIES:	R v GORDON, John Gilbert (applicant)
FILE NO/S:	CA No 198 of 2012 DC No 1057 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2012
JUDGES:	Holmes, White and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – AGE OF OFFENDER – ELDERLY OFFENDER – where applicant pleaded guilty to 11 counts of unlawful use of postal service contrary to s 471 of Criminal Code 1995 (Cth) and one count of unlawful possession of weapons contrary to s 50 of Weapons Act 1990 (Qld) – where applicant was sentenced to two and a half years imprisonment to be released after eight months – where applicant was 81 years of age at sentence and in poor health – where applicant had already served 17 weeks and one day at application hearing – whether sentence was manifestly excessive in all the circumstances – whether applicant ought to be released forthwith Corrective Services Act 2006 (Qld), s 176 Crimes Act 1914 (Cth), s 16A(2) Criminal Code 1995 (Cth), s 471.10(1), s 471.11(1), s 471.12, s 471.15(1) Police Powers and Responsibilities Act 2000 (Qld), s 471(3) Weapons Act 1990 (Qld), s 50(1)(b) R v CC[2004] QCA 187, cited R v Finlay (2007) 178 A Crim R 373; [2007] QCA 400, considered R v Guthrie (2002) 135 A Crim R 292; [2002] QCA 509, cited R v Irlam; ex parte Attorney-General (Qld)[2002] QCA 235, cited R v Janz[2008] QCA 55, considered R v Markusic[2004] QCA 249, considered R v S (1998) 100 A Crim R 80; [1998] QCA 44, cited
COUNSEL:	C W Heaton SC for the applicant S M Ryan for the respondent
SOLICITOR:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Commonwealth) for the respondent