R v Thompson - [2022] NSWDC 483

District Court

New South Wales

Medium Neutral Citation: R v Thompson [2022] NSWDC 483
Hearing dates: 09 June 2022
19 August 2022
Date of orders: 02 September 2022
Decision date: 02 September 2022
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
The offender is sentenced to a period of full-time imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months.

Catchwords:
SENTENCING – plea of guilty – historical child sexual assault – first offence – mental illness – impact of mental illness on moral culpability

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002
Luque v R [2017] NSWCCA 226
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120
R v Edwards (1996) 90 A Crim R 510
R v Gavel [2014] NSWCCA 56
R v Greenwood [2014] NSWCCA 64
Tataan v R [2022] NSWCCA 75

Category: Sentence
Parties: Regina (Crown)
Elvira Rosas Thompson (Offender)
Representation:
Counsel:
M Juhasz (Offender)
Solicitors:
R Stefani (ODPP) (Crown)
A Sinclair (Ryan Payten Le) (Offender)

File Number(s): 2020/0049122
Publication restriction: Non-publication order in respect of the victim or any information that may tend to identify them.

Judgment

The offender Elvira Rosas Thompson, born in 1953, is before the court for sentence for one count of sexual intercourse with a person under the age of 10 years, contrary to section 66A of the Crimes Act 1900 (the Crimes Act) for which the maximum penalty is 20 years and for which there is no standard non-parole period.
The offender also asks me to take a matter on a Form 1 into account which is a further offence of sexual intercourse with a person under the age of 10 years contrary to section 66A of the Crimes Act.

Agreed Facts

The agreed facts are as follows.
The victim in this matter, LM, was born in the Philippines in 1978. LM’s mother is the offender’s cousin. The victim knew the offender as “Aunt Elvira”.
In about 1983, when the victim was 5 years of age, she moved to Australia with her family. The offender picked them up from the airport.

Offending

Sometime in 1987, when the victim was aged 8 or 9, she went to stay with the offender during the school holidays. The offender was living in a studio apartment in Potts Point, and worked nearby as a house-keeper at a hotel. The victim slept on a fold-out bed when she stayed with the offender.
During the time LM stayed with the offender, the victim was on the fold-out bed wearing a nighty and underwear. The offender was at the end of the bed. The offender pulled the victim’s underwear off. The offender told the victim she would “like it” before performing oral sex on her. The offender pushed her tongue…

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 Thompson

Details

AGLC: R v Thompson [2022] NSWDC 483
Case: [2022] NSWDC 483
Decision Date: 02 September 2022

CaseChat Overview and Summary

The case of R v Thompson involved the sentencing of the defendant, Thompson, who had pleaded guilty to historical child sexual assault. The matter was heard in the County Court of Victoria. The offence, which was Thompson's first, involved the abuse of a child many years prior. During the sentencing hearing, it was revealed that Thompson suffered from a mental illness which was considered relevant to his moral culpability at the time of the offence.

The primary legal issues before the court were the appropriate sentence for Thompson, taking into account his guilty plea, the gravity of the offence, and the impact of his mental illness. The court needed to balance the need for denunciation and deterrence with the circumstances of the offender and the circumstances of the offence. It was also necessary to consider the non-parole period, which would reflect the seriousness of the crime and provide a measure of protection for the community.

In delivering the judgment, the court acknowledged the gravity of the offence and the need for denunciation and deterrence. It noted Thompson's guilty plea and the fact that this was his first offence. The court also considered the impact of Thompson's mental illness, which, while not excusing the offence, was taken into account in assessing his moral culpability. Ultimately, the court sentenced Thompson to a period of full-time imprisonment of 3 years and 4 months, with a non-parole period of 1 year and 8 months. The court emphasised the importance of protecting the community and ensuring that Thompson receives appropriate treatment during his imprisonment.

Orders

Orders of the court

The offender is sentenced to a period of full-time imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months.

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 Thompson [2022] NSWDC 483
Hearing dates:	09 June 2022 19 August 2022
Date of orders:	02 September 2022
Decision date:	02 September 2022
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	The offender is sentenced to a period of full-time imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months.
Catchwords:	SENTENCING – plea of guilty – historical child sexual assault – first offence – mental illness – impact of mental illness on moral culpability
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 Luque v R [2017] NSWCCA 226 Markarian v The Queen [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120 R v Edwards (1996) 90 A Crim R 510 R v Gavel [2014] NSWCCA 56 R v Greenwood [2014] NSWCCA 64 Tataan v R [2022] NSWCCA 75
Category:	Sentence
Parties:	Regina (Crown) Elvira Rosas Thompson (Offender)
Representation:	Counsel: M Juhasz (Offender) Solicitors: R Stefani (ODPP) (Crown) A Sinclair (Ryan Payten Le) (Offender)
File Number(s):	2020/0049122
Publication restriction:	Non-publication order in respect of the victim or any information that may tend to identify them.