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Harlow v The Queen

Harlow v The Queen

Case [2017] VSCA 234 4 September 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0097

BONNIE KATE SAWYER-THOMPSON	Applicant
v
THE QUEEN	Respondent

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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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JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	4 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 234
JUDGMENT APPEALED FROM:	[2016] VSC 767 (Croucher J)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Defensive homicide – Sentence of 10 years’ imprisonment – Non-parole period of seven years – Plea of guilty –Objective gravity of the offending – Relationship of serious violence, humiliation, and psychological abuse – Dependent personality disorder, post-traumatic stress disorder, depression and anxiety, youth, low IQ – Threat to kill family unless victim killed – Innocent victim – Whether a finding of chance to flee ignored context of threat and vulnerability – Whether judge erred in categorising the offending as falling towards the upper end of the range of seriousness – Foregone chance of acquittal – Co-operation – Whether reasonably arguable that manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Victoria Legal Aid
For the Respondent	No appearance	Mr J Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Bonnie Kate Sawyer-Thompson (‘Sawyer-Thompson’), pleaded guilty to one charge of defensive homicide. She was sentenced in the Supreme Court of Victoria on 20 April 2017 as follows:[1]
[1]R v Sawyer-Thompson [2016] VSC 767 (‘Sentencing reasons’).

Charge Offence Maximum penalty Sentence Cumulation

1 Defensive homicide [Crimes Act 1958 s 9AD] 20 years’ imprisonment 10 years’ imprisonment -

Total effective sentence: 10 years’ imprisonment

Non-parole period: 7 years

Pre-sentence detention: 1,035 days

S 6AAA statement: 15 years’ imprisonment with a non-parole period of 11 years

Other orders: Forensic sample order

She now applies for leave to appeal this sentence on two grounds:

1.The learned sentencing judge erred in concluding that the offending fell towards the upper end of the range of seriousness.
2.The sentence of imprisonment and the non-parole period imposed were manifestly excessive, having regard to:
a.   The applicant’s reduced moral culpability;
b.   The applicant’s age and level of maturity;
c.   The applicant’s remorse and prospects of rehabilitation;
d.     The applicant’s limited antecedents;
e.   The delay between offending and sentence;
f.    The applicant’s plea of guilty and assistance to authorities;
g.   The applicant serving her sentence more onerously due to her status as a police informer; and
h.   Current sentencing practice.

The stabbing incident[2]

[2]This description of the offending has been summarised from the Prosecution Opening dated 14 November 2016 and the Sentencing reasons.

On Friday 20 June 2014 at approximately 3:30 am, Jack Nankervis (‘Nankervis’) broke into the home of Noel Patton (‘Patton’) by forcing open the back door. Patton is the father of Nankervis’ former partner, with whom he had one child. There was an altercation between Nankervis and Patton in Patton’s bedroom before Nankervis apologised…

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 Harlow v The Queen

Details

AGLC: Bonnie Kate Sawyer-Thompson v The Queen [2017] VSCA 234
Case: [2017] VSCA 234
Decision Date: 4 September 2017

CaseChat Overview and Summary

The appellant in Harlow v The Queen was sentenced to a term of 10 years' imprisonment, with a non-parole period of seven years, following a plea of guilty to a charge of defensive homicide. The appellant sought leave to appeal against the sentence imposed by the trial judge. The central issues for the court to address were the appropriateness of the sentence in light of the mitigating factors and the trial judge's assessment of the objective gravity of the offending.

The court examined whether the trial judge erred in considering the mitigating factors, such as the appellant's dependent personality disorder, post-traumatic stress disorder, depression and anxiety, youth, and low IQ, in the context of the serious violence, humiliation, and psychological abuse that the appellant had endured. The court also assessed if the trial judge failed to adequately account for the appellant's perception of a threat to his family if the victim was not killed and the appellant's vulnerability in that context. Furthermore, the court considered whether the trial judge erred in categorising the offending towards the upper end of the range of seriousness and whether the sentence was manifestly excessive, given the appellant's cooperation and the foregone chance of acquittal.

The court found that the trial judge had appropriately considered the mitigating factors and the context of the threat and vulnerability. The court held that there was no error in the trial judge's categorisation of the seriousness of the offending. Consequently, the appeal against sentence was dismissed, and leave to appeal was refused. The original sentence of 10 years' imprisonment, with a non-parole period of seven years, stood as imposed by the trial judge.

Orders