R v Thomson - [2011] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomson [2011] QCA 191

PARTIES:

R
v
THOMSON, Brett Alan
(applicant)

FILE NO/S:

CA No 120 of 2011
SC No 60 of 2011
SC No 132 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

10 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2011

JUDGES:

Margaret McMurdo P, Muir JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 10 August 2011:

The application be granted.1.

The appeal be allowed.2.

The sentence for count 1 be varied by directing that the applicant be released on parole immediately on the conditions mentioned in s 200(1) of the Corrective Services Act 2006 (Qld) (“the Act”).3.

The applicant must report to a probation and parole officer as required by the Act between 9.00 am and 5.00 pm today or on the next business day and obtain a copy of the parole order.4.

The applicant is hereby informed that if he fails to comply with the latter requirement he will be unlawfully at large for the purposes of the Act.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months probation after pleading guilty to offences of possessing approximately three grams of cannabis and 3.559 grams of pure MDMA – where the applicant was convicted of breaching the probation order by dealing with shop goods in an unauthorised manner – where the applicant breached the probation order again by committing drunk and disorderly and public nuisance offences and by testing positive on two occasions for cannabis – where the applicant was re-sentenced to a term of imprisonment of nine months for possession of the MDMA and to a concurrent term of imprisonment of one month for possession of the cannabis – where the applicant submitted that the sentencing judge gave insufficient weight to the applicant’s youth, his lack of relevant criminal history, his prospects of rehabilitation and to the nature of the possession offences – where the breaches of the probation order occurred approximately 16 and a half months into the 18 month term of the order and were less serious in nature than the original offending – whether the sentence of nine months imprisonment was manifestly excessive

Corrective Services Act 2006 (Qld), s 200(1)
Drugs Misuse Act 1986 (Qld), s 129(1)(c)
Penalties and Sentences Act 1992 (Qld), s 126(6)(b)

R v Chinmaya [2009] QCA 227, considered
R v Holmes [2008] QCA 259, considered
R v Sartori [2006] QCA 284, considered

COUNSEL:

C Morgan for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: The applicant was 22 years of age when sentenced in…

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 Thomson

Details

AGLC: R v Thomson [2011] QCA 191
Case: [2011] QCA 191
Decision Date: 10 August 2011

CaseChat Overview and Summary

The case of R v Thomson involved the applicant who had been sentenced to 18 months probation for offences related to possession of cannabis and MDMA. The applicant subsequently breached the terms of the probation order by engaging in unauthorised dealings with shop goods, committing drunk and disorderly and public nuisance offences, and testing positive for cannabis on two occasions. The applicant was re-sentenced to nine months imprisonment for possession of the MDMA, and a concurrent term of one month for the cannabis possession. The applicant appealed against the sentence, arguing that it was manifestly excessive, and did not adequately consider his youth, lack of relevant criminal history, prospects of rehabilitation, and the nature of the possession offences. The breaches of probation occurred approximately 16 and a half months into the 18-month term, and were considered to be less serious in nature than the original offences.

The court was required to determine whether the sentence of nine months imprisonment was manifestly excessive. The court considered the principles of sentencing for drug possession offences, and the need for sentences to reflect the seriousness of the offence, promote rehabilitation, and provide deterrence. The court also considered the principles of sentencing for breaches of probation orders, and the need for sentences to reflect the seriousness of the breach, and to provide deterrence and protection to the community. The court noted that the breaches of probation occurred later in the term, and were less serious in nature than the original offences. The court also considered the arguments presented by the applicant regarding his youth, lack of relevant criminal history, prospects of rehabilitation, and the nature of the possession offences.

The court concluded that the sentence of nine months imprisonment was manifestly excessive, and did not adequately consider the mitigating factors presented by the applicant. The court noted that the applicant was young, had no relevant criminal history, and had prospects of rehabilitation. The court also noted that the nature of the possession offences was relatively minor. The court found that the sentence did not reflect the seriousness of the breaches of probation, and was not proportionate to the original offences. The court allowed the appeal, and varied the sentence by directing that the applicant be released on parole immediately on the conditions mentioned in s 200(1) of the Corrective Services Act 2006 (Qld). The applicant was informed that if he failed to comply with the requirement to report to a probation and parole officer and obtain a copy of the parole order, he would be unlawfully at large for the purposes of the Act.

In conclusion, the court granted the applicant's appeal against sentence, and varied the sentence by directing that the applicant be released on parole immediately. The court found that the original sentence of nine months imprisonment was manifestly excessive, and did not adequately consider the mitigating factors presented by the applicant. The court emphasised the need for sentences to reflect the seriousness of the offence, promote rehabilitation, and provide deterrence. The court also noted the importance of considering the nature of the breaches of probation, and the need for sentences to be proportionate to the original offences. The court's decision in this case provides guidance for sentencing courts when considering appeals against sentence, and the principles that should be taken into account when determining whether a sentence is manifestly excessive or inadequate.

Orders

Orders of the court

Delivered ex tempore on 10 August 2011:

The application be granted.1.

The appeal be allowed.2.

The sentence for count 1 be varied by directing that the applicant be released on parole immediately on the conditions mentioned in s 200(1) of the Corrective Services Act 2006 (Qld) (“the Act”).3.

The applicant must report to a probation and parole officer as required by the Act between 9.00 am and 5.00 pm today or on the next business day and obtain a copy of the parole order.4.

The applicant is hereby informed that if he fails to comply with the latter requirement he will be unlawfully at large for the purposes of the Act.5.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Thomson [2011] QCA 191
PARTIES:	R v THOMSON, Brett Alan (applicant)
FILE NO/S:	CA No 120 of 2011 SC No 60 of 2011 SC No 132 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED EX TEMPORE ON:	10 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2011
JUDGES:	Margaret McMurdo P, Muir JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 10 August 2011: The application be granted.1. The appeal be allowed.2. The sentence for count 1 be varied by directing that the applicant be released on parole immediately on the conditions mentioned in s 200(1) of the Corrective Services Act 2006 (Qld) (“the Act”).3. The applicant must report to a probation and parole officer as required by the Act between 9.00 am and 5.00 pm today or on the next business day and obtain a copy of the parole order.4. The applicant is hereby informed that if he fails to comply with the latter requirement he will be unlawfully at large for the purposes of the Act.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months probation after pleading guilty to offences of possessing approximately three grams of cannabis and 3.559 grams of pure MDMA – where the applicant was convicted of breaching the probation order by dealing with shop goods in an unauthorised manner – where the applicant breached the probation order again by committing drunk and disorderly and public nuisance offences and by testing positive on two occasions for cannabis – where the applicant was re-sentenced to a term of imprisonment of nine months for possession of the MDMA and to a concurrent term of imprisonment of one month for possession of the cannabis – where the applicant submitted that the sentencing judge gave insufficient weight to the applicant’s youth, his lack of relevant criminal history, his prospects of rehabilitation and to the nature of the possession offences – where the breaches of the probation order occurred approximately 16 and a half months into the 18 month term of the order and were less serious in nature than the original offending – whether the sentence of nine months imprisonment was manifestly excessive Corrective Services Act 2006 (Qld), s 200(1) Drugs Misuse Act 1986 (Qld), s 129(1)(c) Penalties and Sentences Act 1992 (Qld), s 126(6)(b) R v Chinmaya [2009] QCA 227, considered R v Holmes [2008] QCA 259, considered R v Sartori [2006] QCA 284, considered
COUNSEL:	C Morgan for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent