Citation: Regina v Robert Brian Gordon [2002] NSWCCA 476
Court: NSW Court of Criminal Appeal
Date: 11 December 2002
Judge(s): Buddin J; Howie J
Background
The applicant was arrested on 19 December 2000 and had remained in continuous custody since that date. Between early and mid-December 2000, he supplied heroin to an undercover police operative on multiple occasions, sold unregistered semi-automatic pistols, and was found in possession of further firearms and prohibited drugs at the time of his arrest.
The applicant pleaded guilty in the District Court to seven counts from an original nineteen-count indictment. The charges encompassed a course of conduct involving heroin supply under section 25A(1) of the Drug Misuse and Trafficking Act 1985 (that is, supply on three or more separate occasions within thirty consecutive days), two counts of selling prohibited semi-automatic pistols, possession of a rifle without authorisation, possession of a prohibited firearm (a revolver), and two counts of deemed supply of cocaine and methylamphetamine respectively. Two additional matters were taken into account on a Form 1 document, including a further pistol sale and a deemed supply of heroin.
The District Court, before Coleman DCJ, imposed a combination of fixed terms and a head sentence of six years with a four-year non-parole period for the principal drug supply offence, with partial accumulation across the various sentences. The applicant, appearing in person before the Court of Criminal Appeal, sought leave to appeal on the ground that the sentences were excessive.
Legal Issues
- Whether the sentencing judge erred by imposing partially accumulated, rather than wholly concurrent, sentences across the various drug and firearms offences
- Whether the sentencing judge gave adequate weight to the applicant's medical condition in fashioning the sentences
- Whether any error in the sentencing discretion was established that would warrant resentencing
Decision
The Court of Criminal Appeal found no error in the decision to accumulate the sentences in part. The applicant's submission that all offences should be treated as a single discrete episode of criminality and sentenced concurrently was rejected. The Court found it difficult to conceive how the sentencing judge could have arrived at any other conclusion, given the distinct character of the various offences, and noted that the degree of accumulation imposed was, in any event, modest.
On the medical condition ground, the Court noted that the sentencing judge had received and considered evidence about the applicant's health but had also found that the applicant had overstated its significance in some respects. The Court held that finding was well open on the material before the sentencing judge, and the challenge to this aspect of the sentencing process therefore failed.
The Court added that even if error had been established contrary to its findings, the extensive nature of the criminality involved meant it would have been a case where no lesser sentence was warranted in law, applying section 6(3) of the Criminal Appeal Act 1912. Material provided by the applicant concerning his conduct and progress in custody since sentencing was not received, as resentencing was not warranted.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that partial accumulation of sentences across distinct drug and firearms offences was clearly open to the sentencing judge where the offences occurred across multiple occasions and involved different types of serious criminality.
- A sentencing judge's finding that a defendant had overstated the medical significance of a health condition will be upheld on appeal where that finding was reasonably open on the evidence.
- Under section 6(3) of the Criminal Appeal Act 1912, even where some error is established, an appellate court may decline to impose a lesser sentence where the extent of an applicant's criminality plainly justifies the original sentence.
- Post-sentence material relating to an applicant's progress in custody is not admissible on an appeal unless the court first concludes that error has been established and that resentencing is appropriate.
- Offences spanning multiple discrete transactions over several weeks cannot readily be characterised as a single episode warranting wholly concurrent sentences.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1), 32
- Firearms Act 1996 (NSW), ss 7, 36
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Pearce v The Queen (1998) 194 CLR 510
- R v Thomson & Houlton (2000) 49 NSWLR 383