R v Gordon - [2002] QCA 83

[2002] QCA 83

COURT OF APPEAL

McMURDO P
MUIR J
PHILIPPIDES J

CA No 330 of 2001

THE QUEEN

STEVEN WILLIAM GORDON

BRISBANE

..DATE 18/03/2002

JUDGMENT

MUIR J: The applicant pleaded guilty to unlawfully supplying the dangerous drugs methylamphetamine and cannabis sativa, receiving money from supplying dangerous drugs knowing the monies to have been obtained from the supply and to possession of electronic scales and spoons used in connection with the commission of the crime of supplying dangerous drugs, and was sentenced in the Supreme Court to terms of imprisonment of three years, two years and two years respectively.

All sentences were ordered to be served concurrently and to start from the end of the period of imprisonment presently being served by the applicant. It was recommended that the applicant be eligible for post-prison community based release on 18 November 2006.

At the time of sentencing, the applicant was serving a 10 year sentence for armed robbery, the term of which commenced on 15 March 1991. The applicant was recommended for immediate parole in respect of the sentences imposed on 15 March 1991 and released on parole on 26 July 1991. Parole was cancelled on 4 March 1996. He was granted parole again on 26 July 1999. The parole order was suspended on 17 November 2000 and cancelled on 6 December 2000.

The point of narrating this history is to note that the applicant is not eligible for remissions on his sentence which will be completed on 18 November 2005. He will then commence serving the sentences now directly under consideration.

The applicant was born in January 1968 and was thus 32 years of age at the time of the subject offences. He had a prior criminal history which in addition to the armed robberies already mentioned included convictions on 4 March 1996 for supplying dangerous drugs, possession of dangerous drugs, possession of a thing used in the commission of a crime and also for receiving. He was sentenced to one year's imprisonment for each of these offences which I note were committed whilst the applicant was on parole.

In September 2000, whilst the applicant was on parole, the police found 146.5 grams of cannabis sativa and 42.411 grams of powder containing 18.574 grams of methylamphetamine and $2823 in cash as well as electronic scales and syringes in a car driven by him.

The learned sentencing Judge found that there was a commercial element in the applicant's offences and Mr Moynihan, who appears for the applicant, does not contest this finding. It is common ground that his Honour was advised that pursuant to section 156A1(b)(ii) of the Penalties and Sentences Act 1992, the sentences to be imposed by him had to be cumulative on the sentences the applicant was then serving, that this advice was incorrect and that his Honour sentenced on this erroneous basis.

It seems that it was mistakenly thought that the offences for which the applicant were sentenced were offences in the schedule to the Penalties…

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 [2002] QCA 83
Case: [2002] QCA 83
Decision Date: 18/03/2002

CaseChat Overview and Summary

The case of R v Gordon was heard by the Queensland Court of Appeal, where the applicant, Steven William Gordon, sought to appeal against the sentences imposed on him by the Supreme Court. Gordon had pleaded guilty to charges of unlawfully supplying dangerous drugs, receiving money from supplying dangerous drugs, and possession of electronic scales and spoons used in connection with the commission of the crime. The Supreme Court had sentenced him to terms of imprisonment of three years, two years, and two years respectively, all to be served concurrently, and to start from the end of the period of imprisonment he was currently serving. Gordon's application for appeal focused on the incorrect advice provided to the sentencing judge regarding the imposition of cumulative sentences.

The primary legal issue before the Court of Appeal was whether the sentencing judge's discretion miscarried due to the incorrect advice about the applicability of section 156A(1)(b) of the Penalties and Sentences Act 1992 (Qld). The Court had to determine if it should re-sentence, exercising its own discretion afresh. The appellant's counsel argued that the sentence imposed was excessive and failed to consider the totality principle, which considers the combined seriousness of the offences and the totality of the sentences. The Crown conceded that the sentence was inappropriate but argued that it was justified considering the quantity of drugs involved and the applicant's history of drug-related offenses.

The Court of Appeal found that the sentencing judge's discretion miscarried due to the incorrect advice provided. The Court was free to re-sentence, exercising its discretion afresh. The Court agreed that the sentence imposed failed to consider the totality principle and was excessive. The Court also noted that the range of sentences for similar offenses, as disclosed by the review undertaken in R v. Crocker, suggested a more moderate sentence was appropriate. The Court of Appeal substituted the sentence with a term of 18 months' imprisonment, to be served concurrently with Gordon's existing sentence, and recommended that he be eligible for post-prison community-based release after 17 August 2006.

The Court of Appeal, consisting of Muir, President, and Philippides JJ, unanimously allowed the application, set aside the original sentence, and substituted it with a sentence of 18 months' imprisonment. The Court also made a recommendation for post-prison community-based release as required by section 157(3) of the Penalties and Sentences Act 1992 (Qld). The date proposed by Mr Justice Muir for eligibility for post-prison community-based release was deemed appropriate in the circumstances.

Orders