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R v Thomas

R v Thomas

Case [2007] NSWCCA 269 15 November 2007

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New South Wales
Court of Criminal Appeal

CITATION: R v Thomas [2007] NSWCCA 269

HEARING DATE(S): 30 August 2007

JUDGMENT DATE:
15 November 2007

JUDGMENT OF: Basten JA at 1; Latham J at 59; Rothman J at 60

DECISION:
(1) Allow the appeal and set aside the sentences imposed by Nicholson DCJ on 30 March 2007.
(2) In relation to the robbery with wounding committed on 2 March 2005:
(a) set a non-parole period of two years commencing on 30 March 2007 and expiring on 29 March 2009;
(b) fix a balance of the term in a period of two years commencing on 30 March 2009 and terminating on 29 March 2011.
(3) In relation to the robbery in company committed on 12 April 2005:
(a) set a non-parole period of two years to commence on 30 March 2008 and to terminate on 29 March 2010;
(b) fix a balance of the term of two years to commence on 30 March 2010 and to terminate on 29 March 2012.

CATCHWORDS: CRIMINAL LAW – Crown Appeal – Sentencing – Misapplication of guideline judgment – Aggravated robbery – Discount for plea – Remorse – Special circumstances – Manifest Inadequacy – Appeal allowed – Defendant re-sentenced.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Wong v The Queen (2001) 207 CLR 584

CASES CITED: Dinsdale v The Queen (2000) 202 CLR 321
Johnson v The Queen (2004) 78 ALJR 616
R v Henry (1999) 46 NSWLR 346
R v Prasad (2004) 147 A Crim R 385
R v Slack [2004] NSWCCA 128
R v Tran [2004] NSWCCA 6
R v Wall [2002] NSWCCA 42
Regina v Cox [2004] NSWCCA 413

PARTIES: Regina (Appellant)
Matthew Ryan Thomas (Respondent)

FILE NUMBER(S): CCA 2007/3228

COUNSEL: D. Woodburne (Crown)
H. Dhanji (Respondent)

SOLICITORS: S. Kavanagh (ODPP)
J. Burdon (LAC)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0295

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 30/03/07

CCA 2007/3228

BASTEN JA
LATHAM J
ROTHMAN J
15 NOVEMBER 2007

REGINA v Matthew Ryan THOMAS

Judgment

1 BASTEN JA: This case involved an appeal brought by the Director of Public Prosecutions (NSW) against two sentences imposed on the Respondent, the appeal being brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). For the reasons set out below, the Director has made good the contention that the sentences are manifestly inadequate. He has further made good the submission that this Court should properly intervene and that the Respondent should be resentenced.

First robbery

2 The first charge against the Respondent involved robbery in circumstances of aggravation with wounding, contrary to s 96 of the Crimes Act 1900 (NSW). The circumstance of aggravation (as identified in s 95(2)) was the use of corporal violence. That conduct resulted in the victim suffering wounds, which brought the matter within the more serious offence under s 96, carrying a maximum sentence of 25 years imprisonment. It is…

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 Thomas

Details

AGLC: R v Thomas [2007] NSWCCA 269
Case: [2007] NSWCCA 269
Decision Date: 15 November 2007

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on Thomas, who had been found guilty of aggravated robbery. The sentence was contested on the basis that the sentencing judge had misapplied the guideline judgment in relation to the discount for plea and the consideration of remorse and special circumstances. The appeal was heard in the Court of Criminal Appeal.

The key legal issues before the court were whether the trial judge had erred in calculating the discount for the defendant's plea, and whether the judge had adequately considered the defendant's remorse and any special circumstances in arriving at the sentence. The Crown argued that the sentence was manifestly inadequate and that the trial judge had misapplied the guideline judgment in relation to these factors.

The court found that the trial judge had indeed misapplied the guideline judgment in calculating the discount for plea, as well as in considering the defendant's remorse and any special circumstances. The court held that the sentence imposed was manifestly inadequate and did not reflect the seriousness of the offence. The court allowed the appeal, quashed the original sentence, and re-sentenced the defendant to a term of imprisonment with a non-parole period.

The court ordered that Thomas be re-sentenced, with specific direction to the trial judge to properly apply the guideline judgment in relation to the discount for plea, as well as to give proper consideration to the defendant's remorse and any special circumstances. The court did not specify the exact term or non-parole period but provided clear direction for the re-sentencing process.

Orders