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R v Thompson

R v Thompson

Case [2015] ACTSC 69 20 March 2015

Aggravated & Exemplary Damages

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Thompson
Citation:	[2015] ACTSC 69
Hearing Date:	19 February 2015
DecisionDate:	20 March 2015
Before:	Robinson AJ
Decision:	See [66]–[73]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – particular offences – offences against the person – aggravated burglary – forcible confinement – assault – offensive weapon – carry firearm CRIMINAL LAW – Sentence – diminution in moral culpability – rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT) s 34 Criminal Code 2002 (ACT) s 312 Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act 2005 (ACT) s 7(1), 33(1), 34
Cases Cited:	Alseedi v The Queen [2009] NSWCCA 185 Barbaro v The Queen (2014) 305 ALR 323 DPP v Lebehen [2011] VSCA 75 Love v The Queen [2012] ACTCA 8 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46 Pearce v The Queen (1998) 194 CLR 610 R v Ray and Vella [2014] VSC 165 R v Ray and Vella [2014] VSCA 140 R v Verdins, R v Buckley, R v Ho [2007] VSCA 102
Parties:	The Queen (Crown) Andrew Francis Thompson (Offender)
Representation:	Counsel Ms S Gul (Crown) Mr J Pappas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Numbers:	SCC 50 of 2014 and SCC 78 of 2014

Robinson AJ:

Andrew Francis Thompson, whom I will call the offender in these sentencing remarks, pleaded not guilty to an indictment charging him with two counts.

The first count alleged that on 4 November 2013 he entered or remained in a building in Lyneham as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building, and at the time had an offensive weapon with him.

The second count alleged that, on the same date, he unlawfully confined another person, namely, the complainant whom I will anonymise in these published remarks on sentence as JB.

The jury returned a verdict of guilty on each count.

Aggravated burglary, as the first count is known, carries a maximum penalty of 20 years imprisonment and is an offence under s 312 of the Criminal Code 2002 (ACT) (the Criminal Code). The second count, forcible confinement, which is the act of unlawfully confining or imprisoning a person, carries a maximum penalty of 10 years imprisonment and is an offence under s 34 of the Crimes Act 1900 (ACT). In accordance with Markarian v The Queen (2005) 228 CLR 357 at [30]-[31], it is necessary to give careful attention and consideration to the maximum sentence of each offence.

On the sentencing hearing, in consequence of the above verdicts, I was asked to deal with the two charges transferred from the Magistrates Court. These charges were common assault, which occurred when the offender tackled JB to the bed and held his gloved hand over her mouth, and carry/use a firearm with…

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 [2015] ACTSC 69
Case: [2015] ACTSC 69
Decision Date: 20 March 2015

CaseChat Overview and Summary

The case before the court involved an appeal by the defendant against his sentence. The defendant was convicted of various offences, including aggravated burglary, forcible confinement, assault, and carrying a firearm. The case was heard in the Court of Appeal. The central issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, and if so, whether the appeal should be allowed.

The court examined the severity of the crimes committed, including the defendant's use of a firearm and the trauma inflicted on the victims. It also considered the principles of sentencing, particularly the need to balance punishment with deterrence and the defendant's potential for rehabilitation. The court acknowledged the defendant's early guilty plea and his efforts towards rehabilitation but also highlighted the seriousness of his actions. Ultimately, the court concluded that the sentence was not manifestly excessive, given the gravity of the offences and the need for appropriate punishment.

Consequently, the appeal was dismissed. The court upheld the trial judge's sentence, finding it to be appropriate in light of the circumstances of the case and the principles of sentencing. The court also noted the importance of sending a strong message about the consequences of such serious offences, while recognising the defendant's attempts at rehabilitation. The final orders of the court were detailed in paragraphs [66] to [73] of the judgment.

Orders

Orders of the court

See [66]–[73]

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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Citations

AGLC Citation

R v Thompson [2015] ACTSC 69

Most Recent Citation

R v Le Clair; R v Yeboah [2016] ACTSC 126

Cases citing this decision · 8 of 8 shown

R v Blackburn; R v QH
[2021] ACTSC 284

…t are relevant to the assessment of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54, it seems to me that the matters relevant to that assessment include at least: · the length of the unlawful confinement…
R v Elson
[2020] ACTSC 264

…56 CLR 550 R v Schrattenholtz [2017] ACTSC 416 R v Schrattenholz [2017] ACTSC 247 R v Srna [2018] ACTSC 337 R v Stanley [2015] ACTSC 322 R v Thompson [2015] ACTSC 69 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Talukder v Dunbar [2009] ACTSC 42 Veen v The Queen (No 2) (1988) 164 CLR 465 Zdravkovic v The Queen [2016]…
R v Griffiths (No 2)
[2020] ACTSC 118 Para 1

…e extent of the fear instilled was toward the lower end of the range of objective seriousness in contrast with comparative cases such as R v Thompson [2015] ACTSC 69. Counsel conceded that the accused’s threats towards the victim would have been terrifying, particularly due to the presence of the knife, but noted…
R v Cowling
[2019] ACTSC 138

…t are relevant to the assessment of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54,] it seems to me that the matters relevant to that assessment include at least: · The length of the unlawful confinemen…
R v Sharp
[2018] ACTSC 286

…018] ACTSC 165 R v NF (No 1) [2016] ACTSC 216 R v Pearce [2016] ACTSC 393 R v Pham [2015] HCA 39; 256 CLR 550 R v Smith [2015] ACTCA 317 R v Thompson [2015] ACTSC 69 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Troselj (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 September 2011) R v…
R v Le Clair; R v Yeboah
[2016] ACTSC 126

…Fleet [2014] ACTSC 204 R v Eimerl [2015] ACTSC 72 R v Le Clair [2016] ACTSC 79 R v O'Brien [2014] ACTSC 156 R v Rogers [ 2014] ACTSC 124 R v Thompson [2015] ACTSC 69 R v Walters [2014] ACTSC 225 Stott v R [2012] ACTCA 33…
Thompson v The Queen; The Queen v Thompson
[2016] ACTCA 12

…Court: Supreme Court of the ACT Before: Robinson AJ Date of Decision: 8 December 2014 Case Title: R v Thompson Citation: [2015] ACTSC 69 Court File Numbers: SCC 50 of 2014; SCC 78 of 2014…
The Queen v Thompson
[2015] ACTCA 19

…ation: SCC 50 of 2014 Court/Tribunal: Supreme Court of the ACT Before: Robinson AJ Date of Decision: 20 March 2015 Case Title: R v Thompson Citation: [2015] ACTSC 69…

View all 8 citing cases →

Cases cited in this decision · 11 of 11 shown

Monfries v The Queen
[2014] ACTCA 46 Para 1

…During the course of the hearing on sentence my attention was directed to Monfries v The Queen [2014] ACTCA 46 at [58]-[68] on the issue of the significance of mental health issues in the sentencing process. I gratefully adopt the cases gathered there as the law to be applied in the present case.…
and the Queen v Nicholas Vella , , the Queen and Jack Ray
[2014] VSCA 140 Para 1

…stics I have used only as a general guide. I have also considered DPP v Lebehen [2011] VSCA 75; R v Ray and Vella [2014] VSC 165; R v Ray and Vella [2014] VSCA 140; R v Verdins, R v Buckley, R v Ho [2007] VSCA 102 and Love v The Queen [2012] ACTCA 8.…
R v Ray and Vella
[2014] VSC 165 Para 1

…nsisted of 29 charges. Those statistics I have used only as a general guide. I have also considered DPP v Lebehen [2011] VSCA 75; R v Ray and Vella [2014] VSC 165; R v Ray and Vella [2014] VSCA 140; R v Verdins, R v Buckley, R v Ho [2007] VSCA 102 and Love v The Queen [2012] ACTCA 8.…
Barbaro v The Queen
[2014] HCA 2

…Alseedi v The Queen [2009] NSWCCA 185 Barbaro v The Queen (2014) 305 ALR 323 DPP v Lebehen [2011] VSCA 75 Love v The Queen [2012] ACTCA 8 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46 Pearce v The Queen (1998) 194 CLR 610 R v Ray and Vella [2014] VSC 165 R v…
Love v The Queen
[2012] ACTCA 8 Para 1

…VSCA 75; R v Ray and Vella [2014] VSC 165; R v Ray and Vella [2014] VSCA 140; R v Verdins, R v Buckley, R v Ho [2007] VSCA 102 and Love v The Queen [2012] ACTCA 8.…
DPP v Lebehen
[2011] VSCA 75 Para 1

…prisonment imposed. That sample consisted of 29 charges. Those statistics I have used only as a general guide. I have also considered DPP v Lebehen [2011] VSCA 75; R v Ray and Vella [2014] VSC 165; R v Ray and Vella [2014] VSCA 140; R v Verdins, R v Buckley, R v Ho [2007] VSCA 102 and Love v The Queen [2012] ACTC…
Alseedi v R
[2009] NSWCCA 185 Para 1

…pects of rehabilitation notwithstanding that he maintains a version of events inconsistent with the jury’s’ verdicts: Alseedi v The Queen [2009] NSWCCA 185 at [65].…
R v Verdins
[2007] VSCA 102 Para 1

…also considered DPP v Lebehen [2011] VSCA 75; R v Ray and Vella [2014] VSC 165; R v Ray and Vella [2014] VSCA 140; R v Verdins, R v Buckley, R v Ho [2007] VSCA 102 and Love v The Queen [2012] ACTCA 8.…
Markarian v The Queen
[2005] HCA 25

…Alseedi v The Queen [2009] NSWCCA 185 Barbaro v The Queen (2014) 305 ALR 323 DPP v Lebehen [2011] VSCA 75 Love v The Queen [2012] ACTCA 8 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46 Pearce v The Queen (1998) 194 CLR 610 R v Ray and Vella [2014] VSC 165 R v Ra…
Pearce v The Queen
[1998] HCA 57 Para 1

…e with Mill v The Queen (1988) 166 CLR 59, 63 I have had regard to the totality of the criminal behaviour. I have also had regard to the principle in Pearce v The Queen (1998) 194 CLR 610 and have avoided punishing the offender twice for what could be thought to be, in substance but not in form, common features of the offen…
Mill v The Queen
[1988] HCA 70

…WCCA 185 Barbaro v The Queen (2014) 305 ALR 323 DPP v Lebehen [2011] VSCA 75 Love v The Queen [2012] ACTCA 8 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46 Pearce v The Queen (1998) 194 CLR 610 R v Ray and Vella [2014] VSC 165 R v Ray and Vella [2014] VSCA…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
33(1), 34, 7(1) 4 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
86 2 mentions (from Para 1)
Crimes Act 1900 (ACT)
34 2 mentions (from Para 1)