R v Donny James Tompkins - [2017] NSWDC 398

District Court

New South Wales

Medium Neutral Citation: R v Donny James TOMPKINS [2017] NSWDC 398
Hearing dates: 21 November 2017
Date of orders: 21 November 2017
Decision date: 21 November 2017
Jurisdiction: Criminal
Before: KING SC DCJ
Decision:
Indicative sentences
Agg assault w/i to take/drive m/v armed with weapon: 5 years imprisonment
Robbery armed with offensive weapon: 7 years imprisonment
Aggregate sentence:
Special circumstances found – to ensure maximum supervision to assist the offender in reintegration into the community. I recommend that supervision include ongoing treatment and/or counselling in re drug & alcohol and mental health issues.
Sentenced to a term of imprisonment for 8 years comprising of a NPP of 5 years to commence on 21 November 2017 and expiring on 20 November 2022, and a balance of term of 3 years to commence on 21 November 2022 and to expire on 20 November 2025.

Catchwords: CRIMINAL – Sentence - armed with an offensive weapon - attempt to take motor vehicle with assault while armed – offences committed while on parole –- mid-range of objective seriousness - severe poly-substance use disorder - institutionalisation - poor prospects of rehabilitation - aggregate sentence subjective matters - resident at program to assist offenders reintegrate into the community
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Thomson and Houlton 49 NSWLR 383
R v McVittie [2002] NSWCCA 344,\
R v Fernando [2002] NSWCCA 28
R v Huynh [2003] NSWCCA 239
R v Moffatt (1990) 20 NSWLR 114
Callaghan v R [2006] NSW CCA 58
Bugmy v The Queen [2013] HCA 37
Category: Sentence
Parties: REGINA
Donny James TOMPKINS
Representation: Solicitors:
CROWN: MS N SAWAGID
F/W: MR J ELLIOTT

File Number(s): 2016/00089071; 2016/00158989

Judgment

Donny Tompkins appears for sentence in relation to two offences, the first being armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty provided is 20 years imprisonment. There is no standard non-parole period.
The second offence is attempt to take motor vehicle with assault while armed, contrary to s 154C(2) of the Crimes Act. The maximum penalty provided is 14 years imprisonment. While a completed offence has a standard non-parole period of five years, that does not apply to an attempt.
In relation to each of the offences, he was committed for sentence on 17 November 2016 at the Central Local Court and is entitled to a discount in the order of 25% in respect of each of the offences for the utility alone of the plea as referred to in R v Thomson and Houlton 49 NSWLR 383.
The facts are as follows, with a background that at the time of the offending he was the subject of parole, having been released on parole on 26 January 2016 in respect of an offence of robbery in company for which he had received a sentence of four years imprisonment with a non-parole period of two years.
He was then resident at the…

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 R v Donny James Tompkins

Details

AGLC: R v Donny James Tompkins [2017] NSWDC 398
Case: [2017] NSWDC 398
Decision Date: 21 November 2017

CaseChat Overview and Summary

In the Supreme Court of Queensland, Donny James Tompkins faced charges of aggravated assault with intent to take and drive a motor vehicle while armed with an offensive weapon, as well as robbery while armed with an offensive weapon. The offences were committed while Tompkins was on parole, which played a significant role in the sentencing considerations. The court had to balance the severity of the crimes, the aggravating factors such as the use of an offensive weapon, and the mitigating factors like Tompkins' severe poly-substance use disorder and poor prospects for rehabilitation.

The primary legal issues involved determining the appropriate indicative sentences for the aggravated assault and robbery, taking into account the mid-range of objective seriousness for such offences. Additionally, the court needed to consider the aggregate sentence, particularly focusing on the subjective matters that could influence the overall punishment. Given Tompkins' institutionalisation and his participation in a program designed to assist with his reintegration into the community, these factors were also integral to the sentencing decision.

The court assessed the severity of the offences and Tompkins' criminal history, acknowledging the mid-range of objective seriousness for the crimes committed. It also considered the special circumstances, particularly his severe poly-substance use disorder, his institutionalisation, and poor prospects of rehabilitation. The court concluded that a significant term of imprisonment was necessary, but also recognised the need for ongoing treatment and counselling to address his drug, alcohol, and mental health issues. Consequently, Tompkins was sentenced to a total of eight years imprisonment, with a non-parole period of five years, followed by a balance of three years. The sentence included special circumstances to ensure maximum supervision to assist in his reintegration into the community.

Orders

Orders of the court

Indicative sentences

Agg assault w/i to take/drive m/v armed with weapon: 5 years imprisonment

Robbery armed with offensive weapon: 7 years imprisonment

Aggregate sentence:

Special circumstances found – to ensure maximum supervision to assist the offender in reintegration into the community. I recommend that supervision include ongoing treatment and/or counselling in re drug & alcohol and mental health issues.

Sentenced to a term of imprisonment for 8 years comprising of a NPP of 5 years to commence on 21 November 2017 and expiring on 20 November 2022, and a balance of term of 3 years to commence on 21 November 2022 and to expire on 20 November 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Donny James TOMPKINS [2017] NSWDC 398
Hearing dates:	21 November 2017
Date of orders:	21 November 2017
Decision date:	21 November 2017
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Indicative sentences Agg assault w/i to take/drive m/v armed with weapon: 5 years imprisonment Robbery armed with offensive weapon: 7 years imprisonment Aggregate sentence: Special circumstances found – to ensure maximum supervision to assist the offender in reintegration into the community. I recommend that supervision include ongoing treatment and/or counselling in re drug & alcohol and mental health issues. Sentenced to a term of imprisonment for 8 years comprising of a NPP of 5 years to commence on 21 November 2017 and expiring on 20 November 2022, and a balance of term of 3 years to commence on 21 November 2022 and to expire on 20 November 2025.
Catchwords:	CRIMINAL – Sentence - armed with an offensive weapon - attempt to take motor vehicle with assault while armed – offences committed while on parole –- mid-range of objective seriousness - severe poly-substance use disorder - institutionalisation - poor prospects of rehabilitation - aggregate sentence subjective matters - resident at program to assist offenders reintegrate into the community
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Thomson and Houlton 49 NSWLR 383 R v McVittie [2002] NSWCCA 344,\ R v Fernando [2002] NSWCCA 28 R v Huynh [2003] NSWCCA 239 R v Moffatt (1990) 20 NSWLR 114 Callaghan v R [2006] NSW CCA 58 Bugmy v The Queen [2013] HCA 37
Category:	Sentence
Parties:	REGINA Donny James TOMPKINS
Representation:	Solicitors: CROWN: MS N SAWAGID F/W: MR J ELLIOTT
File Number(s):	2016/00089071; 2016/00158989