R v Gordon

This case concerns a Crown appeal against a sentence imposed by the Supreme Court of the Australian Capital Territory. The respondent offender was sentenced for recklessly inflicting grievous bodily harm and possessing a prohibited item, both offences committed while he was already serving a term of imprisonment. The primary judge imposed a sentence of two years and six months for the grievous bodily harm offence, and a wholly concurrent three-month sentence for the prohibited item offence. A key issue was how this new sentence should interact with the offender's existing sentence, particularly in light of legislative provisions that prevented the setting of a non-parole period for offences committed in custody and created a presumption that such sentences should be cumulative.

The legal issues before the appellate court included whether the sentencing judge erred in their application of sections 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) and section 118 of the Crimes (Sentence Administration) Act 2005 (ACT). Additionally, the court considered whether the sentencing judge had erred by inviting counsel to submit on a proposed sentence, contrary to the principle established in *Barbaro v The Queen*. The Crown also argued that the sentencing judge erred in applying a 25 percent guilty plea discount and that the overall sentence was manifestly inadequate.

The appellate court dismissed the Crown's appeal. It reasoned that the sentencing judge had correctly navigated the complex interplay of the relevant legislative provisions concerning sentences for offences committed in custody. The court found that the judge's approach, which involved suspending the sentence after a period of actual custody, was a permissible method to achieve an overall period of detention and allow for a period of community supervision, thereby mitigating the harsh consequences that would otherwise arise from the statutory restrictions on non-parole periods. The court also held that the judge's invitation to counsel to discuss a proposed sentence structure did not offend the principle in *Barbaro v The Queen*, as it was done in the context of understanding how to give effect to the statutory requirements and achieve a just outcome, rather than dictating a sentence. The court found no error in the application of the guilty plea discount or in the overall assessment of the sentence's adequacy.