Col Thornton v The Queen - [2021] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0225

COL THORNTON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	3 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 39
JUDGMENT APPEALED FROM:	[2020] VCC 1214 (Judge D Sexton)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Applicant and co-accused assaulted and raped victim in prison – Applicant convicted of intentionally causing serious injury and rape – Total effective sentence 9 years 6 months’ imprisonment with non-parole period of 6 years 9 months – Whether judge failed to take into account delay in mitigation – Whether judge erred in considering erroneous factor in sentencing – Whether judge impermissibly sentenced applicant for an uncharged offence – Whether sentence, non-parole period and order for cumulation manifestly excessive – No reasonably arguable error in sentencing discretion – Leave to appeal refused.

PRACTICE AND PROCEDURE – Miscalculation in declaration of period reckoned as already served under s 18 Sentencing Act 1991 – Pre-sentence detention recorded as 295 days instead of 325 days – Order for correction to pre-sentence detention period – Sentencing Act 1991 s 104A(5A).

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APPEARANCES (on the papers):	Counsel	Solicitors
For the Applicant	Ms G F Connelly	Ann Valos Criminal Law
For the Respondent	Ms K Hamill	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

The applicant was charged on indictment with one charge of intentionally causing serious injury and one charge of rape. After a trial in the County Court, the applicant was found guilty of both charges. His co-offender, Stephen Down (‘Down’) was convicted of one charge of recklessly causing serious injury and one charge of rape.

After a plea that was presented on his behalf, the applicant was sentenced to a total effective term of 9 years and 6 months’ imprisonment, with a non-parole period of 6 years and 9 months. That sentence was constituted as follows:

Charge Offence Maximum Sentence Cumulation

1 Causing serious injury intentionally, s 16 Crimes Act 1958 20 years 6 years 2 years

3 Rape, s 38(1) Crimes Act 1958 25 years 7 years and six months Base

Total Effective Sentence: 9 years and 6 months’ imprisonment

Non-Parole Period: 6 years and 9 months’ imprisonment

Pre-Sentence detention 295 days

Other relevant orders: Nil

The applicant seeks leave to appeal against the sentence on the following grounds:

Ground 1:The sentencing discretion miscarried as a result of delay not being taken into account as a matter of mitigation.
Ground 2:The learned sentencing judge erred in sentencing on the basis that failure to use a condom reflected a complete disregard for the physical welfare of Mr Duncan in terms of the possibility of sexually transmitted disease.
Ground 3:The learned sentencing judge erred in aggravating the sentence imposed by reference to an aggravated burglary with which…

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 Col Thornton v The Queen

Details

AGLC: Col Thornton v The Queen [2021] VSCA 39
Case: [2021] VSCA 39
Decision Date: 3 March 2021

CaseChat Overview and Summary

The applicant, Col Thornton, sought leave to appeal against his sentence of 9 years and 6 months’ imprisonment, with a non-parole period of 6 years and 9 months, imposed by the County Court after being found guilty of intentionally causing serious injury and rape. The Court of Appeal considered four grounds of appeal: the delay in sentencing did not warrant a mitigating factor; the judge erred in considering the failure to use a condom as an aggravating factor; the judge erred in considering an uncharged offence; and the sentence was manifestly excessive. The Court of Appeal held that none of the grounds were reasonably arguable. The delay in sentencing was not a mitigating factor because the applicant's counsel did not submit it as such, and the delay did not result in significant unfairness. The judge did not err in considering the failure to use a condom as an aggravating factor because there was evidence that the applicant used his penis to penetrate the victim. The judge did not err in considering the premeditation of the assault because it was relevant to the gravity of the offending and not an uncharged offence. Finally, the sentence was not manifestly excessive because the offences were committed in circumstances of particular gravity, and the sentencing purposes of specific deterrence and protection of the community were required to be given particular weight. The Court of Appeal also corrected the pre-sentence detention period from 295 days to 325 days.

Orders