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R v Thomson

R v Thomson

Case [2016] NSWCCA 56 18 April 2016

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Thomson [2016] NSWCCA 56
Hearing dates: 24 March 2016
Date of orders: 18 April 2016
Decision date: 18 April 2016
Before: Hoeben CJ at CL at [1]
Harrison J at [77]
Davies J at [78]
Decision:
(1)   The Crown appeal is allowed.
(2)   The sentences imposed by his Honour on 28 September 2015 are quashed.
(3)   In lieu thereof, the respondent is sentenced as follows:
(i)   In respect of the State offences, including the matter on the Form 1, the respondent is sentenced to an aggregate sentence of imprisonment with a non-parole period of 6 years commencing 19 January 2012 and expiring 18 January 2018 with a balance of term of 3 years expiring 18 January 2021.
(ii)   In respect of the Commonwealth offence, the respondent is sentenced to imprisonment with a non-parole period of 7½ years commencing 19 January 2015 and expiring 18 July 2022 with a balance of term of 6½ years expiring 18 January 2029.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – conspiracy to import substantive quantity of drugs including 3.96kgs pure cocaine and 2.25kgs pure MDMA and supply large commercial quantity 1.97kgs methylamphetamine – conspiracy to import and large commercial supply separate and discrete offences – sentence for large commercial supply fully concurrent with sentence for conspiracy to import – objective seriousness of each offence high – modest subjective case – need to ensure public confidence in the administration of criminal justice – error in sentences not being partially cumulative – need to re-sentence.
Legislation Cited: Crimes Act 1914 (Cth) – s 16A
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 32
Criminal Appeal Act 1912 (NSW) – s 5D
Criminal Code Act 1995 (Cth) – ss 11.1(5) and 307.1(1)
Drug Misuse and Trafficking Act 1985 (NSW) – ss 25(1), 25(2)
Weapons Prohibition Act 1998 (NSW) – s 7(1)
Cases Cited: CMB v Attorney General for New South Wales [2015] HCA 9
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v R [1936] HCA 40; 55 CLR 499
Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Makarian v The Queen [2005] HCA 25; 228 CLR 357
Pannowitz v R [2016] NSWCCA 13
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Thomson (District Court (NSW), Williams SC DCJ, 28 September 2015, unrep)
Regina v Cahyadi [2007] NSWCCA 1
Regina v XX [2009] NSWCCA 115
SZ v Regina [2007] NSWCCA 19; 168 A Crim R 249
Category: Principal judgment
Parties: Regina – Appellant Crown
Reese Daniel Thomson - Respondent
Representation:
Counsel:
Mr Bourke SC…

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 [2016] NSWCCA 56
Case: [2016] NSWCCA 56
Decision Date: 18 April 2016

CaseChat Overview and Summary

In R v Thomson, the respondent was convicted for conspiracy to import a substantive quantity of drugs, including 3.96 kilograms of pure cocaine and 2.25 kilograms of pure MDMA, as well as for the supply of a large commercial quantity of 1.97 kilograms of methylamphetamine. The appeal was brought by the Crown, seeking a higher penalty for the respondent's crimes. The case was heard in the court of appeal, where the legal issues centred around the appropriate sentence for the respondent's multiple drug-related offences.

The court needed to determine whether the sentences imposed were appropriate in light of the seriousness of the crimes and the need to maintain public confidence in the criminal justice system. A significant issue was whether the conspiracy to import and the large commercial supply were separate and discrete offences, which would necessitate a cumulative sentence. The court examined the sentencing principles outlined in the relevant legislation and case law, considering both the objective seriousness of the offences and the respondent's modest subjective circumstances.

The court found that the conspiracy to import and the large commercial supply were indeed separate and discrete offences, and therefore, the sentences should not have been fully concurrent. The objective seriousness of each offence was high, but the respondent's modest subjective circumstances warranted a reduction in the penalty. However, the court emphasised the importance of ensuring public confidence in the administration of criminal justice, which required a more severe penalty. Consequently, the court concluded that the sentences were erroneous for not being partially cumulative and ordered a re-sentencing hearing to address this issue.

Orders