R v Gordon - [2024] NSWDC 519

District Court

New South Wales

Medium Neutral Citation: R v Gordon [2024] NSWDC 519
Hearing dates: 3 September 2024
Date of orders: 4 October 2024
Decision date: 04 October 2024
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1)   The Offender is convicted.
(2)   No action be taken for the breaches of the Community Corrections Orders.
(3)   The Offender is sentenced to a term of imprisonment of 2 years and 6 months, comprising a non-parole period of 1 year and 6 months.
(4)   The sentence commences on 14 June 2023 and will expire on 13 December 2025.
(5)   The non-parole period expires on 13 December 2024.
(6)   The Offender will be eligible for consideration for release to parole on 13 December 2024.
(7)   I direct the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of the service.
(8)   I make the following recommendations to Community Corrective Services:
(a)   The Offender regularly undertake review toward management of his Post-Traumatic Stress Disorder, anxiety, hypervigilance, Substance Abuse Disorder, unresolved conflicts and trauma issues, his emotional regulation capabilities and executive function impairments.
(b)   The Offender be assisted in completing his education and training for workplace engagement.
(c)   The Offender undergo residential drug rehabilitation for at least eight weeks.
(d)   The Offender attend Odyssey House, Narcotics Anonymous, and comply with any mental health plan provided by a medical practitioner and receive supervision to ensure compliance with his treatment plan.

Catchwords:
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm — Possess shortened firearms (other than a pistol) — Not part of a planned or organised criminal activity
SENTENCING — Aggravating factors — Breach of conditional liberty — Antecedent record
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Subjective considerations on sentence — Deprived background
SENTENCING — Special circumstances — Rehabilitation — Guarded prospects — Hardship in incarceration —Victim of assault whilst incarcerated
SENTENCING — Subjective considerations on sentence — Mental illness — Post-Traumatic Stress Disorder, depression, anxiety, hypervigilance, Substance Abuse Disorder

Legislation Cited:
Crimes Act 1900 (NSW), s 93G(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5AA), 44, 47(2)(a), 53A
Firearms Act 1996 (NSW), s 62(1)(b)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Crane v R [2024] NSWCCA 112
El Jamal v The Queen [2017] NSWCCA 243
R v Brown [2006] NSWCCA 249
R v Lizano [2021] NSWDC 54
R v Najem [2008] NSWCCA 32
R v Struik [2023] NSWSC 1548
R v Tanti [2021] NSWDC 381

Category: Sentence
Parties: Rex (Crown)
Kane Gordon (Offender)
Representation:
Counsel:
Ms Abby van der Velde (Solicitor Advocate for Crown)
Ms Rylie Hahn-Hamilton (Solicitor for Offender)
Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Marsdens Law Group (Offender)

File Number(s): 2023/00123307

Judgment

The Offender entered pleas of guilty and is to be sentenced for two counts of the offence pursuant to s 62(1)(b) of the Firearms Act 1996 (NSW) (‘Firearms Act’), possess shortened firearm not pistol without authority. The maximum penalty is 14 years imprisonment.…

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] NSWDC 519
Case: [2024] NSWDC 519
Decision Date: 04 October 2024

CaseChat Overview and Summary

The case of R v Gordon involved the defendant, Gordon, who was charged with firearms offences under the relevant Australian legislation. The specific charges related to Gordon's possession of a prohibited pistol and a shortened firearm, not as part of a planned or organised criminal activity. The case was heard and determined by a court in Australia, presumably at the trial level, given the nature of the outcomes detailed.

The court needed to address several legal issues, including whether Gordon was guilty of the firearms offences as charged, the appropriate sentence given the circumstances, and the consideration of both aggravating and mitigating factors in sentencing. In assessing the appropriate sentence, the court took into account Gordon's criminal history, the breach of conditional liberty, his mental health conditions such as Post-Traumatic Stress Disorder, depression, anxiety, hypervigilance, and Substance Abuse Disorder, as well as his deprived background and experiences of assault while incarcerated.

The court found Gordon guilty of the firearms offences but decided not to take any action for the breaches of the Community Corrections Orders. In determining the sentence, the court considered the aggravating factors, such as Gordon's criminal history and breach of conditional liberty, alongside the mitigating factors, including his plea of guilty and his deprived background. The court also weighed Gordon's mental health issues, including his Post-Traumatic Stress Disorder and Substance Abuse Disorder, alongside the special circumstances of his rehabilitation potential, the hardship of incarceration, and his victimisation while in custody. Consequently, the court sentenced Gordon to a term of imprisonment of two years and six months, with a non-parole period of one year and six months. The court also made several recommendations for Gordon's rehabilitation and management during his incarceration, including regular mental health reviews, participation in educational and vocational programs, and engagement in drug rehabilitation and support services.

Orders

Orders of the court

(1) The Offender is convicted.

(2) No action be taken for the breaches of the Community Corrections Orders.

(3) The Offender is sentenced to a term of imprisonment of 2 years and 6 months, comprising a non-parole period of 1 year and 6 months.

(4) The sentence commences on 14 June 2023 and will expire on 13 December 2025.

(5) The non-parole period expires on 13 December 2024.

(6) The Offender will be eligible for consideration for release to parole on 13 December 2024.

(7) I direct the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of the service.

(8) I make the following recommendations to Community Corrective Services:

(a) The Offender regularly undertake review toward management of his Post-Traumatic Stress Disorder, anxiety, hypervigilance, Substance Abuse Disorder, unresolved conflicts and trauma issues, his emotional regulation capabilities and executive function impairments.

(b) The Offender be assisted in completing his education and training for workplace engagement.

(d) The Offender attend Odyssey House, Narcotics Anonymous, and comply with any mental health plan provided by a medical practitioner and receive supervision to ensure compliance with his treatment plan.

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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Medium Neutral Citation:	R v Gordon [2024] NSWDC 519
Hearing dates:	3 September 2024
Date of orders:	4 October 2024
Decision date:	04 October 2024
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) The Offender is convicted. (2) No action be taken for the breaches of the Community Corrections Orders. (3) The Offender is sentenced to a term of imprisonment of 2 years and 6 months, comprising a non-parole period of 1 year and 6 months. (4) The sentence commences on 14 June 2023 and will expire on 13 December 2025. (5) The non-parole period expires on 13 December 2024. (6) The Offender will be eligible for consideration for release to parole on 13 December 2024. (7) I direct the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of the service. (8) I make the following recommendations to Community Corrective Services: (a) The Offender regularly undertake review toward management of his Post-Traumatic Stress Disorder, anxiety, hypervigilance, Substance Abuse Disorder, unresolved conflicts and trauma issues, his emotional regulation capabilities and executive function impairments. (b) The Offender be assisted in completing his education and training for workplace engagement. (c) The Offender undergo residential drug rehabilitation for at least eight weeks. (d) The Offender attend Odyssey House, Narcotics Anonymous, and comply with any mental health plan provided by a medical practitioner and receive supervision to ensure compliance with his treatment plan.
Catchwords:	CRIME — Firearms offences — Use/Possess prohibited pistol/firearm — Possess shortened firearms (other than a pistol) — Not part of a planned or organised criminal activity SENTENCING — Aggravating factors — Breach of conditional liberty — Antecedent record SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Subjective considerations on sentence — Deprived background SENTENCING — Special circumstances — Rehabilitation — Guarded prospects — Hardship in incarceration —Victim of assault whilst incarcerated SENTENCING — Subjective considerations on sentence — Mental illness — Post-Traumatic Stress Disorder, depression, anxiety, hypervigilance, Substance Abuse Disorder
Legislation Cited:	Crimes Act 1900 (NSW), s 93G(1)(c) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5AA), 44, 47(2)(a), 53A Firearms Act 1996 (NSW), s 62(1)(b)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Crane v R [2024] NSWCCA 112 El Jamal v The Queen [2017] NSWCCA 243 R v Brown [2006] NSWCCA 249 R v Lizano [2021] NSWDC 54 R v Najem [2008] NSWCCA 32 R v Struik [2023] NSWSC 1548 R v Tanti [2021] NSWDC 381
Category:	Sentence
Parties:	Rex (Crown) Kane Gordon (Offender)
Representation:	Counsel: Ms Abby van der Velde (Solicitor Advocate for Crown) Ms Rylie Hahn-Hamilton (Solicitor for Offender) Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Marsdens Law Group (Offender)
File Number(s):	2023/00123307