New South Wales. Court of Criminal Appeal. Gordon v R [2018] NSWCCA 54. Simpson JA, R A Hulme J, Hidden AJ. The Court of
Judgment Summary Supreme Court New South Wales Court of Criminal Appeal Gordon v R [2018] NSWCCA 54 Simpson JA, R A Hulme J, Hidden AJ The Court of Criminal Appeal has allowed an appeal brought by Mr Leonard Malcolm Gordon against a sentence imposed on him by the District Court in December 2016. From October 2014 to June 2015 Mr Gordon committed offences in three “clusters”. The first cluster occurred in October 2014 whilst Mr Gordon was living in a domestic relationship with the complainant in Goonellabah. An argument broke out between the two, and Mr Gordon physically assaulted the complainant. The second cluster occurred in May of 2015. Mr Gordon was again living with the complainant in Goonellabah when an argument broke out over the ownership of a motor vehicle. Mr Gordon physically assaulted the complainant again and detained her against her will for nearly a day. Mr Gordon was arrested on 18 June 2015, and was refused bail in the Local Court the following day. While in custody Mr Gordon telephoned the complainant on at least 10 occasions, and encouraged her to “drop the charges”. This constituted the third and final cluster of offending. Mr Gordon entered a plea of guilty on 13 October 2015 in relation to the first cluster of offences, after a committal hearing had been held and the complainant cross-examined. Subsequently, Mr Gordon entered a plea of guilty with respect to the third cluster of offences on 19 April 2016, the second cluster was placed on a Form 1 (Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3) to be taken into account in the sentence for that offence. Mr Gordon was sentenced on 13 December 2016 to an aggregate term of imprisonment of 4 years and 11 months, with a non-parole period of 3 years and 7 months, commencing on 18 August 2015. As required by the aggregate sentencing provisions, the judge specified the sentences she would have imposed in respect of the individual offences to which Mr Gordon pleaded guilty. A 10 per cent discount was incorporated in the sentence to reflect Mr Gordon’s guilty pleas. The main issue on appeal was whether the sentencing judge erred in characterising Mr Gordon’s guilty pleas as “late” and applying a lower discount as a result. The Court considered, first, whether it was irrelevant to the quantification of the reduction in sentence of the pleas of guilty that the complainant had been required to give evidence at committal proceedings; and, second, whether the procedural history of the offences listed on the Form 1 could be taken into account during the quantification of the reduction in sentence. On the first issue, the Court accepted that the quantification of the reduction in sentence stemming from a guilty plea is confined to the utilitarian value of the plea; that is to say the practical and economic effects manifested by the saving of court time and expense. Excluded from this, but not excluded from consideration on general sentencing principles, are other factors such as the humanitarian consideration of saving witnesses from the need to give evidence. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
On the second issue, the Court, by majority, held that the timing of Mr Gordon’s acceptance of responsibility for the offences listed on the Form 1 could not be taken into consideration with respect to the discount applied. Accordingly, the Court held that the sentencing judge had erred in her decision. It was therefore necessary for the Court to proceed to resentence: see Kentwell v Queen (2014) 252 CLR 601; [2014] HCA 37. In resentencing the Court accepted that Mr Gordon’s prospects of rehabilitation are now significantly more positive than they were when assessed by the sentencing judge. By majority, the Court held that the reckless wounding offence attracted a reduction of 15 per cent, and, again by majority, that the offence of acting with intent to pervert the course of justice attracted a reduction of 25 per cent. Accordingly, the Court set aside the District Court sentence and resentenced Mr Gordon to imprisonment for 4 years 6 months, with a non-parole period of 2 years and 9 months.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
