R v Gordon (No 8) - [2017] NSWSC 574

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Gordon (No 8) [2017] NSWSC 574
Hearing dates: 21 April 2017
Date of orders: 12 May 2017
Decision date: 12 May 2017
Jurisdiction: Common Law - Criminal
Before: Campbell J
Decision:
The offender is sentenced to a term of imprisonment of 10 years, having a non-parole period of 6 years and 6 months commencing on 7 November 2013 and expiring on 6 May 2020 with an additional term of 3 years and 6 months commencing on 7 May 2020 and expiring on 6 November 2023. The offender will first be eligible for release on parole on the expiration of the non-parole period on 6 May 2020.

Catchwords: CRIMINAL LAW – sentence – offender charged with murder – offender convicted by jury of manslaughter – where the evidence is purely circumstantial – where the victim died from blunt force trauma to the head – where the offender and victim were grossly intoxicated – where a central issue of fact is the use of a motor vehicle and/or a boulder as a weapon – finding that the offender intentionally reversed the vehicle over the victim – whether the categorisation of manslaughter has any bearing on objective seriousness – held to be manslaughter by unlawful and dangerous act – finding of special circumstances
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: R v Baden-Clay (2016) 334 ALR 234
R v Bouggas [2015] NSWSC 914
Cheung v The Queen (2001) 209 CLR 1
The Queen v Hillier (2007) 338 CLR 618
R v Isaacs (1997) 41 NSWLR 374
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia (2013) 249 CLR 600
Category: Sentence
Parties: Regina (Crown)
Donald Neil Gordon (Accused)
Representation:
Counsel: B G Campbell (Crown);
J P Watts (Accused)
Solicitors: Director of Public Prosecutions (NSW)
Aboriginal Legal Service (Accused)

File Number(s): 2013/337128
Publication restriction: Nil

Judgment

The offender is to be sentenced for the manslaughter of Danial Cotter which occurred in the very early hours of 7 November 2013 at Collum Collum Station, about 80 kilometres northwest of Grafton.
The offender was arraigned on an indictment charging murder. After a trial commencing on 9 February 2017 at Grafton, the jury returned verdicts of not guilty of murder and guilty of manslaughter on 3 March 2017.
It should be said at the outset that the most significant issue in the trial was how the blunt force trauma to Mr Cotter’s head from the effects of which he died was inflicted by the offender. The Crown case was that the offender had both run over Mr Cotter with a Mitsubishi Magna motor vehicle and bludgeoned him three times about the head with a heavy boulder (Exhibit C) with the intention of either killing, or inflicting really serious injury upon, Mr Cotter. Alternatively it was put that the act causing…

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 (No 8)

Details

AGLC: R v Gordon (No 8) [2017] NSWSC 574
Case: [2017] NSWSC 574
Decision Date: 12 May 2017

CaseChat Overview and Summary

In the matter of R v Gordon, the defendant was convicted by a jury of manslaughter following a charge of murder. The victim died from blunt force trauma to the head, and the evidence presented was entirely circumstantial. Both the offender and the victim were heavily intoxicated at the time of the incident, and a pivotal issue was whether the offender used a motor vehicle and/or a boulder as the weapon. The jury concluded that the offender intentionally reversed the vehicle over the victim.

The legal issues before the court involved the classification of the offence and the appropriate sentence. Specifically, the court had to determine whether the categorisation of manslaughter had any bearing on the objective seriousness of the crime, and whether special circumstances existed to warrant a more severe sentence. The court also needed to consider the principles of sentencing in the context of manslaughter by unlawful and dangerous act.

The court found that the offender's actions constituted manslaughter by unlawful and dangerous act, with the special circumstance that the offender intentionally reversed the vehicle over the victim. The court emphasised that the use of a motor vehicle as a weapon in such a manner was particularly egregious. As a result, the court imposed a sentence reflecting the objective seriousness of the offence, taking into account the special circumstances identified.

The final orders of the court included a sentence for the offence of manslaughter by unlawful and dangerous act, with special circumstances. The court detailed the reasoning behind the sentence, ensuring that it appropriately reflected the gravity of the offender's actions and the harm caused to the victim.

Orders