R v Thomsen - [2018] QCA 220

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomsen [2018] QCA 220

PARTIES:

R
v
THOMSEN, Blair Raymond
(applicant)

FILE NO/S:

CA No 192 of 2017
DC No 84 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 10 August 2017 (Long SC DCJ)

DELIVERED ON:

Order delivered ex tempore 19 June 2018
Reasons delivered 18 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2018

JUDGES:

Sofronoff P and Gotterson JA and Ryan J

ORDER:

Order delivered ex tempore on 19 June 2018:

Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of an extortion offence against s 415(1) of the Criminal Code (Qld) – where the applicant was sentenced to three years and nine months imprisonment, to be suspended after 16 months for an operational period of five years – where the applicant and the complainant were members of the Bandidos Motorcycle Club – where the applicant applied for leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant argued that his sentence should have been viewed as less serious than otherwise because he and the complainant belonged to a club in which there was a culture of violence – whether the sentence imposed upon the applicant was manifestly excessive

COUNSEL:

M J McCarthy, with M Jackson, for the applicant
M T Whitbread for the respondent

SOLICITORS:

M G Wardell for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Gotterson JA.
GOTTERSON JA: On 31 January 2017, in the District Court at Maroochydore, Blair Raymond Thomsen (“the applicant”) pleaded guilty to an extortion offence against s 415(1) of the Criminal Code (Qld). The count to which he pleaded alleged that on or about 29 January 2013 at Bli Bli, he demanded a motorcycle without reasonable cause to benefit himself and threatened to cause a detriment to the complainant, Stephen John Chambers. The applicant was convicted on his plea.
After a sentence hearing on 4 August 2017, the applicant was sentenced, on 10 August 2017, to three years and nine months imprisonment. A period of six days pre-sentence custody was declared to be time served under the sentence. It was ordered that the prison term be suspended after the applicant had served 16 months of it, for an operational period of five years. The suspension will come into effect on 4 December 2018.
This offending was committed during the operation of a five year term of imprisonment to which the applicant had been sentenced for an arson offence. That sentence, which was imposed on 4 June 2008, had been suspended after the applicant had served 20 months of it.
On 10 August 2017, the learned sentencing judge also ordered that the applicant serve in prison 34 months…

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 Thomsen

Details

AGLC: R v Thomsen [2018] QCA 220
Case: [2018] QCA 220
Decision Date: 18 September 2018

CaseChat Overview and Summary

The appellant, Thomsen, was convicted of an extortion offence under section 415(1) of the Criminal Code (Qld) and was sentenced to three years and nine months imprisonment, to be suspended after 16 months for an operational period of five years. Both Thomsen and the complainant were members of the Bandidos Motorcycle Club, which Thomsen claimed should have been taken into account as mitigating his culpability for the offence. Thomsen applied for leave to appeal against his sentence on the ground that it was manifestly excessive.

The court was required to determine whether the sentence imposed on Thomsen was manifestly excessive, considering his membership in the Bandidos Motorcycle Club and the alleged culture of violence within the club. Thomsen argued that his actions should have been viewed as less serious than otherwise due to the cultural context in which they occurred. The court needed to assess the impact of the club's culture on the seriousness of the offence and the appropriateness of the sentence.

The court dismissed Thomsen's application for leave to appeal against his sentence. It found that the sentence was not manifestly excessive, even when considering the cultural context of the club. The court determined that the sentence imposed was appropriate and that there were no grounds for interference. The sentencing judge had considered all relevant factors and applied the law correctly.

No further orders were made by the court.

Orders

Orders of the court

Order delivered ex tempore on 19 June 2018:

Application for leave to appeal against sentence dismissed.

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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CITATION:	R v Thomsen [2018] QCA 220
PARTIES:	R v THOMSEN, Blair Raymond (applicant)
FILE NO/S:	CA No 192 of 2017 DC No 84 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore – Date of Sentence: 10 August 2017 (Long SC DCJ)
DELIVERED ON:	Order delivered ex tempore 19 June 2018 Reasons delivered 18 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2018
JUDGES:	Sofronoff P and Gotterson JA and Ryan J
ORDER:	Order delivered ex tempore on 19 June 2018: Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of an extortion offence against s 415(1) of the Criminal Code (Qld) – where the applicant was sentenced to three years and nine months imprisonment, to be suspended after 16 months for an operational period of five years – where the applicant and the complainant were members of the Bandidos Motorcycle Club – where the applicant applied for leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant argued that his sentence should have been viewed as less serious than otherwise because he and the complainant belonged to a club in which there was a culture of violence – whether the sentence imposed upon the applicant was manifestly excessive
COUNSEL:	M J McCarthy, with M Jackson, for the applicant M T Whitbread for the respondent
SOLICITORS:	M G Wardell for the applicant Director of Public Prosecutions (Queensland) for the respondent