R v Thompson - [2009] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 704 of 2008

THE QUEEN
	v
GARY THOMPSON

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JUDGES:	NETTLE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2009
DATE OF JUDGMENT:	6 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 13

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CRIMINAL LAW – Sentencing – Handling stolen goods (‘the plea presentment’), burglary and theft (‘the trial presentment’) – Plea of guilty entered on first day of trial on trial presentment – Very early indication of plea in respect of plea presentment – 23 month total effective sentence imposed with 15 month non-parole period – Extraordinary delay – Delay not expressly adverted to by sentencing judge or counsel for the appellant at sentence – Unfairness – Extensive criminal history – No compelling evidence of rehabilitation – Further offending – Adequate mitigation for delay reflected in sentence – Manifest excess not established.

CRIMINAL LAW – Fresh evidence – Totality – Offences committed while on parole – Cancellation of parole – Appellant to serve three years’ outstanding parole – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Melinda Walker

NETTLE JA:

I invite Dodds-Streeton JA to deliver the first judgment.

DODDS-STREETON JA:

The appellant, Gary Thompson, pleaded guilty on 10 June 2008 in the County Court to one count of handling stolen goods (‘the plea presentment’), one count of burglary and one count of theft (‘the trial presentment’). He was sentenced as follows:

·Handling stolen goods – six months’ imprisonment
·Burglary – 20 months’ imprisonment
·Theft – six months’ imprisonment

Three months of the sentence for handling stolen goods were ordered to be served cumulatively on the sentence for burglary, making a total effective sentence of 23 months’ imprisonment. A non-parole period of 15 months was ordered and eight days were declared to be time already served.

The maximum sentence for handling stolen goods is, pursuant to s 88(2) of the Crimes Act 1958 (‘the Act’), 15 years’ imprisonment.

The maximum sentence for burglary is, pursuant to s 76(3) of the Act, 10 years’ imprisonment.

The maximum sentence for theft is, pursuant to s 74(1) of the Act, 10 years’ imprisonment.

Circumstances of the offending

The appellant appeals against sentence on the following grounds:

1.   The Learned Sentencing Judge erred in failing to have sufficient regard to the issue of delay
2.   The Learned Sentencing Judge erred in her consideration of the Appellant’s prior criminal history.
3.   The individual sentences, total effective head sentence and non-parole period were manifestly excessive.
4.   That in light of fresh evidence relating to the cancellation of parole the Appellant should be re-sentenced.

The appellant was born on 9 November 1968. He was aged between 33 and 36 years at the date of the offending and 39 at the date of sentence.

The offending comprised in the plea presentment occurred on 18 September 2002, when the appellant was present at a…

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 [2009] VSCA 13
Case: [2009] VSCA 13
Decision Date: 6 February 2009

CaseChat Overview and Summary

In the matter of R v Thompson, the defendant stood before the court facing sentencing for two sets of criminal charges: handling stolen goods and burglary and theft. The plea presentment related to the handling of stolen goods, while the trial presentment concerned burglary and theft. On the first day of the trial, the defendant entered a plea of guilty for the trial presentment charges. An early indication of a plea in relation to the plea presentment was also given. The court was tasked with determining an appropriate sentence, taking into account the delay in entering the plea and the defendant's criminal history, which included extensive offending and little evidence of rehabilitation. Additionally, the court needed to consider whether the sentence imposed was excessive and if there was a need for a re-sentencing due to fresh evidence regarding parole violations.

The court had to navigate several complex issues in this case. The primary concern was whether the delay in entering the plea for the plea presentment was sufficiently accounted for in the sentence. Given the extraordinary delay, the court had to determine if the delay warranted a longer sentence or if the sentence already imposed was adequate. The court also had to consider the totality of the defendant's criminal history, the lack of compelling evidence of rehabilitation, and the risk of further offending. Furthermore, the court needed to assess whether the sentence imposed was a manifest excess, and whether the appellant's conduct while on parole constituted fresh evidence that warranted a re-sentencing.

The court found that while the delay in entering the plea was significant, the sentence imposed did reflect adequate mitigation for that delay. However, the court also determined that the delay had not been expressly addressed by either the sentencing judge or the appellant's counsel at the time of sentencing. Despite this, the court concluded that there was no manifest excess in the sentence. Regarding the fresh evidence of parole violations, the court found that the appellant should serve the three years’ outstanding parole and thus allowed the appeal. The appellant was re-sentenced by the court.

In light of the findings, the court ordered that the appellant serve the three years’ outstanding parole in addition to the sentence previously imposed. This re-sentencing took into account the fresh evidence of parole violations and the need to address the appellant's ongoing criminal conduct.

Orders