R v Gordon

This matter concerned an appeal against the sentence on two grounds. Of note was the contention, put forward by the applicant, that his offer to plead to an alternative count was a mitigating feature, relevant to his sentence, in circumstances where the offer was rejected, and the matter proceeded to trial where he was subsequently found guilty of that offence. Ultimately, the appeal was unsuccessful but in relation to an offer to plead before trial as a feature in mitigation Mullins P, with whom Bond JA agreed, held that given the way in which the trial was conducted and the positive case that was run which was not accepted by the jury, little weight should be given to the applicant’s offer.

Mullins P and Bond JA and Williams J

16 February 2024

The complainant was inside his home at the time of the offence with several acquaintances. The complainant saw the offenders and went outside and asked what they were doing there. The co-offender assaulted the complainant first, stabbing him in the shoulder blade. The applicant stabbed the complainant at least once: the injury to under his right armpit. Both the co-offender and the applicant were charged with malicious acts with intent. [78].

The applicant was sentenced following a trial in the District Court on 11 November 2022. The applicant was convicted of four counts, namely, wilful damage, grievous bodily harm, burglary in the night and assault occasioning bodily harm in company. A sentence of seven and a half years imprisonment with a serious violent offence declaration was imposed in respect of the grievous bodily harm charge, with lesser concurrent sentences on the other counts. [33].

Prior to trial, the applicant had made an offer to plead guilty to the lesser charge of grievous bodily harm in lieu of the malicious acts charge. [21]–[23].

The applicant sought leave to appeal on two grounds:

1.The learned sentencing judge’s assessment of the applicant’s criminal history was informed by error which made the criminal history appear to be more serious than it was; and

2.The serious violent offence declaration rendered the sentence manifestly excessive, having regard to the sentence imposed on the co-offender and the principles of parity and to the applicant’s offer to plead guilty to grievous bodily harm.

Ground 2: An offer to plead as a feature in mitigation

The applicant contended as a part of ground two that the sentencing judge failed to take into account his offer to plead guilty to the offence of grievous bodily harm prior to the trial. [21]. On 14 June 2022, the applicant’s trial counsel sent a submission to the prosecution offering a plea of guilty to the grievous bodily harm charge in substitution for the charge of malicious act with intent in conjunction with seeking factual amendments removing the allegation that the applicant was armed with a knife and that he stabbed the complainant. The submission was rejected and of note is that the applicant did not plead guilty to the alternative charge at the commencement of the trial. The trial was conducted on the basis that the prosecution could neither prove beyond reasonable doubt that he was armed with a knife when he attended the complainant’s residence with the co-offender nor that he stabbed the complainant. In submissions, his counsel argued that he should be acquitted of both charges. [22].

President Mullins, with whom Bond JA agreed, explained that an offer to plead guilty to the offence of which he was subsequently convicted is a relevant matter either as supportive of the offender’s cooperation with the administration of justice or as a demonstration of remorse to be brought into account in the exercise of the sentencing discretion, even if the offender did not plead guilty to that offence at the trial. [24]–[25], [32].

However, the weight to be given to such an offer to plead guilty may be affected by a variety of circumstances. [25]–[26], [32]. Whether the offer indicated cooperation with the administration of justice at the time that it was made, or remorse, it may be negated by the subsequent conduct of the offender in relation to the trial. [27], [32]. Therefore, while an offer is relevant, it must be balanced alongside how the trial was conducted.

Here, it carried little weight in circumstances where there was no remorse associated with the offer and the way in which the trial was conducted. It was relevant that the applicant sought to condition the offer on a factual basis that the applicant was not armed with a knife and did not himself stab the complainant, but on the evidence adduced at the trial, the sentencing judge found the applicant was armed with a knife and that he stabbed the complainant at least once himself. In the circumstances of the applicant’s trial, it was not surprising that the sentencing judge made no mention of the prior offer of the applicant to plead guilty to grievous bodily harm, as that offer was of little or no weight on account of cooperation with the administration of justice by the time the trial was concluded. [27], [32].

Williams J in dissent held that the sentence was manifestly excessive “as a result of the disparity between the sentences imposed” on the co-offenders. [111]. But her Honour agreed with President Mullins that little weight should be given to the offer to plea as a mitigating feature. [98]. As Justice Williams explained, “[t]his was not a case where an offer was made and the trial was conducted consistently with that offer, even though a formal guilty plea to the alternative count was not made at the commencement of the trial”. [98].

Disposition

In the result, the application for leave to appeal was refused. [31], [32].

K Mythen of Counsel