Legal Research
Cases
R v Gordon

R v Gordon

Case [2011] QCA 326 18 November 2011

Appeal

Sentencing

Manifestly Excessive or Inadequate Sentence

Parole Eligibility

Criminal Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gordon [2011] QCA 326

PARTIES:

R
v
GORDON, Alister Pentana
(applicant)

FILE NO/S:

CA No 114 of 2011
DC No 39 of 2011
DC No 142 of 2011
DC No 152 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

18 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2011

JUDGES:

Margaret McMurdo P and Fryberg and McMeekin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.    Appeal allowed.

3.    Set aside the sentence of five years imprisonment imposed on each count of armed robbery and the parole eligibility date set at 12 May 2012. Instead, substitute on each count of armed robbery a sentence of four years imprisonment and set the parole eligibility at 18 November 2011.

4.    The sentence is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of robbery in company with personal violence, two counts of armed robbery and further summary offences – where the applicant was sentenced to five years imprisonment for each count of armed robbery with lesser terms of imprisonment to be served concurrently for the remaining offences – where the applicant was 17 when he committed the offences and at sentence – where the applicant argued that the sentencing judge erred in not sufficiently taking into account mitigating factors and in wrongly considering there was an increasing prevalence of armed robbery in the Gold Coast area – whether the sentencing judge sentenced the applicant on the basis of an increasing prevalence of armed robbery in the Gold Coast area – whether the sentencing judge erred – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(3), s 9(4)

R v Abraham, unreported, District Court at Southport, Wall DCJ, 29 April 2011, considered
R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, cited
R v Kynaston [2005] QCA 322, cited
R v Lawley [2007] QCA 243, cited
R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, considered
R v Loveridge [2011] QCA 32, cited
R v Lui [2009] QCA 366, distinguished
R v Moss [1999] QCA 426, affirmed
R v Mules [2007] QCA 47, considered
R v Parker [1993] QCA 116, cited
R v Sharkey; ex parte A-G (Qld) (2009) 195 A Crim R 237; [2009] QCA 118, cited
R v Tuki [2004] QCA 482, cited

COUNSEL:

C F C Wilson for the applicant
R G Martin SC for the respondent

SOLICITORS:

Buckland Allen Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The applicant, Alister Pentana Gordon, pleaded guilty on 12…

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 [2011] QCA 326
Case: [2011] QCA 326
Decision Date: 18 November 2011

CaseChat Overview and Summary

In the case of R v Gordon, the applicant appealed against his sentence following a guilty plea to various criminal offences, including robbery in company with personal violence and armed robbery. The applicant was sentenced to five years imprisonment for each count of armed robbery, with lesser concurrent sentences for the other offences. The applicant contended that the sentencing judge had failed to adequately consider mitigating factors and had improperly taken into account an alleged increasing prevalence of armed robbery in the Gold Coast area when determining his sentence. The court was tasked with determining whether the sentencing judge had erred in his consideration of these factors and whether the sentence imposed was manifestly excessive.

The central legal issue before the court was whether the sentencing judge had erred in his assessment of the mitigating factors and the prevalence of armed robberies in the Gold Coast area. The court had to examine whether the sentence was manifestly excessive or inadequate, considering the totality of the circumstances and the principles of sentencing as outlined in relevant legislation and case law. The applicant argued that the sentencing judge had placed undue emphasis on the prevalence of armed robberies, which was not a relevant consideration in determining the individual culpability of the applicant.

The court found that the sentencing judge had indeed erred in considering the prevalence of armed robberies in the Gold Coast area, as this was not a proper factor for determining the sentence in this case. The court held that the sentence of five years imprisonment for each count of armed robbery was manifestly excessive given the mitigating factors present in the applicant's case, including his age at the time of the offences and his guilty plea. Consequently, the court allowed the appeal and reduced the sentence to four years imprisonment for each count of armed robbery, with parole eligibility set at 18 November 2011.

In light of the findings, the court granted leave to appeal against the sentence, allowed the appeal, set aside the original sentence, and substituted it with a sentence of four years imprisonment for each count of armed robbery, with parole eligibility at 18 November 2011. The sentences for the remaining offences were confirmed as previously imposed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentence of five years imprisonment imposed on each count of armed robbery and the parole eligibility date set at 12 May 2012. Instead, substitute on each count of armed robbery a sentence of four years imprisonment and set the parole eligibility at 18 November 2011.

4. The sentence is otherwise confirmed.

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 [2011] QCA 326

Most Recent Citation

R v Webster [2013] QCA 286

Cases citing this decision · 5 of 5 shown

Pearce v The Commissioner of Police
[2019] QDC 12

…[2004] QCA 171; R v McKeown [1993] QCA 262; R v Gordon [2011] QCA 326;…
R v Pearson
[2016] QCA 212 Para 1

…portation would create hardship for the applicant. No adjournment of the sentence hearing was sought to attain such evidence. [12][1999] QCA 426. [13][2011] QCA 326 which was cited at sentence. [14][2014] QCA 38.…
Namundja v Schaefe-Lee
[2015] NTSC 36

…y (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sullivan v The Queen (1987) 47 NTR 31; The Queen v Denyer [1995] 1 VR 186; The Queen v Gordon [2011] QCA 326; The Queen v Raymond McDonald (NTSC 20606334, 4 December 2006); Vartozokas v Zanker (1989) 51 SASR 277; Yardley v Betts (1979) 22 SASR 108, Referred to. REPRESENTA…
R v Webster
[2013] QCA 286

…The sentencing judge had been referred to R v Gordon [2011] QCA 326, which was also relied on by the respondent on this application. In that case, a 17 year old male had committed two successive armed robberies. He had no prior criminal history, but showed remorse and good prospects for rehabilitation. He was re-…
R v Knox
[2017] QCA 74 Para 13

…. He was sentenced to five years’ imprisonment for each count of armed robbery with concurrent periods of imprisonment for the other offences. [6][2011] QCA 326.…

View all 5 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Loveridge
[2011] QCA 32 Para 1

…emorse for and insight into his offending and its consequences for the victims. His prospects of rehabilitation seem promising. [11]See R v Loveridge [2011] QCA 32, [5]-[7].…
R v Lui
[2009] QCA 366 Para 1

…a particular offence can be relevant to the exercising of the sentencing discretion, but only where the statistics are established to be reliable. [6][2009] QCA 366. [7][1999] QCA 426.…
R v Sharkey; ex parte
[2009] QCA 118 Para 1

…this Court over the years: see for example R v Bird and Schipper [13]; R v Sharkey; ex parte A-G (Qld) [14]. [13](2000) 110 A Crim R 394 at [33]. [14][2009] QCA 118 at [12].…
R v Lawley
[2007] QCA 243 Para 1

…ules ; R v Lawley [10] and schedules of sentences for robbery offences to support the applicant's sentence. [8][1993] QCA 116. [9][2004] QCA 482. [10][2007] QCA 243.…
R v Kynaston
[2005] QCA 322 Para 1

…after serving a little over 16 months was appropriate on the offences of armed robbery, with lesser concurrent sentences on the remaining counts. [5][2005] QCA 322.…
R v Tuki
[2004] QCA 482 Para 1

…ki ;[9] Kynaston ; Mules ; R v Lawley [10] and schedules of sentences for robbery offences to support the applicant's sentence. [8][1993] QCA 116. [9][2004] QCA 482. [10][2007] QCA 243.…
R v Bird and Schipper
[2000] QCA 94

…am, unreported, District Court at Southport, Wall DCJ, 29 April 2011, considered R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, cited R v Kynaston [2005] QCA 322, cited R v Lawley [2007] QCA 243, cited R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, considered R v Loveridge [2011] QCA 32, cited R v Lu…
R v Moss
[1999] QCA 426 Para 1

…e can be relevant to the exercising of the sentencing discretion, but only where the statistics are established to be reliable. [6][2009] QCA 366. [7][1999] QCA 426.…
R v Lovell
[1998] QCA 36

…im R 394; [2000] QCA 94, cited R v Kynaston [2005] QCA 322, cited R v Lawley [2007] QCA 243, cited R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, considered R v Loveridge [2011] QCA 32, cited R v Lui [2009] QCA 366, distinguished R v Moss [1999] QCA 426, affirmed R v Mules [2007] QCA 47, considered R v Parker [1993…
[2007] QCA 47
[2007] QCA 47

…considered R v Loveridge [2011] QCA 32, cited R v Lui [2009] QCA 366, distinguished R v Moss [1999] QCA 426, affirmed R v Mules [2007] QCA 47, considered R v Parker [1993] QCA 116, cited R v Sharkey; ex parte A-G (Qld) (2009) 195 A Crim R 237; [2009] QCA 118, cited R v Tuki [2004] QCA 482, cited COUNSEL: C F C W…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
9(2)(a) 2 mentions (from Para 1)

CITATION:	R v Gordon [2011] QCA 326
PARTIES:	R v GORDON, Alister Pentana (applicant)
FILE NO/S:	CA No 114 of 2011 DC No 39 of 2011 DC No 142 of 2011 DC No 152 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	18 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2011
JUDGES:	Margaret McMurdo P and Fryberg and McMeekin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Set aside the sentence of five years imprisonment imposed on each count of armed robbery and the parole eligibility date set at 12 May 2012. Instead, substitute on each count of armed robbery a sentence of four years imprisonment and set the parole eligibility at 18 November 2011. 4. The sentence is otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of robbery in company with personal violence, two counts of armed robbery and further summary offences – where the applicant was sentenced to five years imprisonment for each count of armed robbery with lesser terms of imprisonment to be served concurrently for the remaining offences – where the applicant was 17 when he committed the offences and at sentence – where the applicant argued that the sentencing judge erred in not sufficiently taking into account mitigating factors and in wrongly considering there was an increasing prevalence of armed robbery in the Gold Coast area – whether the sentencing judge sentenced the applicant on the basis of an increasing prevalence of armed robbery in the Gold Coast area – whether the sentencing judge erred – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(3), s 9(4) R v Abraham, unreported, District Court at Southport, Wall DCJ, 29 April 2011, considered R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, cited R v Kynaston [2005] QCA 322, cited R v Lawley [2007] QCA 243, cited R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, considered R v Loveridge [2011] QCA 32, cited R v Lui [2009] QCA 366, distinguished R v Moss [1999] QCA 426, affirmed R v Mules [2007] QCA 47, considered R v Parker [1993] QCA 116, cited R v Sharkey; ex parte A-G (Qld) (2009) 195 A Crim R 237; [2009] QCA 118, cited R v Tuki [2004] QCA 482, cited
COUNSEL:	C F C Wilson for the applicant R G Martin SC for the respondent
SOLICITORS:	Buckland Allen Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent