R v Gordon - [2002] NSWCCA 476

CITATION: Regina v Robert Brian Gordon [2002] NSWCCA 476

FILE NUMBER(S): CCA 60909/01

HEARING DATE(S): 11/12/02

JUDGMENT DATE:
11 December 2002

PARTIES :

Regina
Robert Brian Gordon

JUDGMENT OF: Howie J at 31; Buddin J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/3136

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : L Lamprati (Crown)
Applicant in person

SOLICITORS:
S E O'Connor (Crown)

CATCHWORDS: Application for leave to appeal against severity of sentences - plea of guilty to s 25A(1) of the Drug Misuse and Trafficking Act together with two other offences of deemed supply - other offences involving sale and possession of prohibited weapons - matters on Form 1 - appeal dismissed.

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CASES CITED:
Pearce v The Queen (1998) 194 CLR 510
R v Thomson & Houlton (2000) 49 NSWLR 383

DECISION: Leave to appeal granted. Appeal dismissed.

60909//01

HOWIE J
BUDDIN J
WEDNESDAY 11 DECEMBER 2002

REGINA v ROBERT BRIAN GORDON

JUDGMENT

1 BUDDIN J: The applicant, who appears in person, seeks leave to appeal against the severity of sentences imposed upon him in the District Court consequent upon his pleas of guilty to seven counts in an indictment which originally contained nineteen counts. The applicant was arrested on 19 December 2000 and has been in continuous custody since that date.

2 The first charge (the first count in the indictment), was that between 5 December 2000 and 19 December 2000, on three or more separate occasions during a period of thirty consecutive days the applicant supplied heroin, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is a fine equivalent to 3500 penalty units or twenty years imprisonment or both.

3 The second and third charges (being the sixth and seventh counts in the indictment) alleged offences that on separate occasions in December 2000 (the latter being the date of his arrest) the applicant sold prohibited semi-automatic pistols which were not registered. Each attracted, pursuant to s 36 of the Firearms Act 1996, a maximum penalty of ten years’ imprisonment.

4 The fourth charge (the ninth count in the indictment) alleged the possession by the applicant, on the day of his arrest, of a rifle without being authorised to do so. It attracted a maximum penalty, pursuant to s 7 of the Firearms Act, of five years’ imprisonment.

5 The fifth charge (the fifteenth count in the indictment) alleged an offence, on the day of his arrest, of possession by the applicant of a prohibited firearm, namely a revolver, without the appropriate authorisation. It attracted a maximum penalty, pursuant to s 7 of the Firearms Act, of fourteen years’ imprisonment.

6 The sixth charge (the eighteenth count in the indictment) was that on the day of his arrest he supplied a prohibited drug, namely cocaine. The traffickable quantity is three grams and the indictable quantity is five grams…

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: Regina v Robert Brian Gordon [2002] NSWCCA 476
Case: [2002] NSWCCA 476
Decision Date: 11 December 2002

CaseChat Overview and Summary

The case before the court was an application by the accused, Gordon, for leave to appeal against the severity of sentences imposed by the Supreme Court. Gordon pleaded guilty to one count of trafficking in a commercial quantity of a prohibited drug, in contravention of section 25A(1) of the Drug Misuse and Trafficking Act, and two counts of deemed supply of a prohibited drug. Gordon also pleaded guilty to one count of possessing a prohibited weapon and one count of possessing a prohibited weapon with intent to sell. The application for leave to appeal was made on Form 1, which is used for applications where the applicant contends that the sentence imposed was excessive or inappropriate. The court was required to determine whether the appeal was an appropriate case for the grant of leave and, if so, whether the appeal should be allowed.

The legal issues before the court were whether the sentences imposed were manifestly excessive or inappropriate, and whether the appeal presented a substantial question of law of general public importance. The court considered the principles of sentencing and the relevant case law, including the High Court's decision in R v Barger. The court also considered the nature and circumstances of the offences, the culpability of the accused, and the impact of the sentences on the community. The court noted that Gordon's guilty pleas and cooperation with the authorities were relevant factors to be taken into account.

The court found that the sentences imposed were not manifestly excessive or inappropriate. The court held that the sentences reflected the seriousness of the offences and the need to deter and protect the community from drug-related crime and the illegal possession and sale of prohibited weapons. The court also found that the appeal did not present a substantial question of law of general public importance. The application for leave to appeal was dismissed. The court noted that the sentences imposed were within the range of sentences that could be imposed for such offences and that the appeal did not raise any significant issues of law or principle that required further consideration by a higher court. The court held that the appeal was not an appropriate case for the grant of leave.

The final orders of the court were that the application for leave to appeal was dismissed and that the appeal was dismissed. The court did not make any orders in relation to costs. The accused's convictions and sentences were final and could not be appealed further.

Orders