Legal Research
Cases
R v Thomson

R v Thomson

Case [2000] NSWCCA 294 17 August 2000

No judgment structure available for this case.

Type to search within this case.

CITATION: R v Thomson [2000] NSWCCA 294

FILE NUMBER(S): CCA 60705/99

HEARING DATE(S): 12/05/00

JUDGMENT DATE:
17 August 2000

PARTIES :

Regina v David John Thomson

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Foster AJA at 3; Grove J at 4; James J at 5

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/21/1066

LOWER COURT JUDICIAL
OFFICER : Tupman DCJ

COUNSEL : J I Doris - Respondent
P Berman/M Grogan - Crown

SOLICITORS: Neil J O'Connor and Associates - Respondent
S E O'Connor - Crown

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60705/99

Spigelman CJ
Wood CJ at CL
Foster AJA
Grove J
James J

17 August 2000

REGINA v David John Thomson
JUDGMENT

1   SPIGELMAN CJ: I agree with James J.
2   WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Justice James. I agree with his reasons and the orders he proposes.
3   FOSTER AJA: I have had the advantage of reading in draft the reasons for judgment of James J and agree with his reasons and the orders proposed.
4   GROVE J: I agree with James J.
5 JAMES J: The Crown has appealed against a sentence imposed on the respondent David John Thomson by her Honour Judge Tupman on 6 October 1999, after the respondent had pleaded guilty to one count of knowingly taking part in the manufacture of a prohibited drug, being amphetamine, an offence under s24(1) of the Drug Misuse and Trafficking Act (“the Act”). Her Honour sentenced the respondent to a term of imprisonment for two years to be served by way of periodic detention, commencing on 16 October 1999. By a letter dated 19 October 1999 the Director of Public Prosecutions informed the respondent that the Director was considering an appeal against the sentence imposed by Judge Tupman. On 17 November 1999 the Director signed a notice of appeal and the notice of appeal was served on the respondent on 28 November 1999.
6   The following summary of the facts of the offence is taken from her Honour Judge Tupman’s remarks on sentence. Her Honour based her statement of the facts of the offence on a document which had been admitted by consent in the proceedings on sentence.
7   Shortly before 27 April 1995 the respondent, who wanted to manufacture amphetamine and was seeking assistance for such an enterprise, made an indirect contact through a third party with a person living in Brisbane, who the respondent believed knew how to manufacture amphetamine. This person, unbeknown to the respondent, was a registered police informant having the number 2007. He did not in fact know how to manufacture amphetamine.
8   Shortly after the respondent made contact with him, the informant advised police and officers of the National Crime Authority that he had been contacted by the respondent.
9   On 27 April 1995 there was meeting in Sydney between the respondent and the informant. This meeting…

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 [2000] NSWCCA 294
Case: [2000] NSWCCA 294
Decision Date: 17 August 2000

CaseChat Overview and Summary

In the case of R v Thomson, the Crown appealed against the sentence imposed on David John Thomson by Judge Tupman in the District Court. Thomson had pleaded guilty to knowingly taking part in the manufacture of a prohibited drug, amphetamine, under s24(1) of the Drug Misuse and Trafficking Act. Judge Tupman sentenced Thomson to a term of imprisonment for two years to be served by way of periodic detention. The Court of Criminal Appeal, comprising Spigelman CJ, Wood CJ at CL, Foster AJA, Grove J, and James J, heard the appeal and ultimately dismissed it.

The legal issues before the Court were whether the sentencing judge made any errors of principle or law in imposing the sentence. The Crown argued that the sentence was too lenient, and that the judge had erred in her assessment of the plea of guilty, facilitation by the authorities, and other factors. The Court examined each of these issues in turn.

In relation to the plea of guilty, the Court found that while the plea was not entered at the first reasonably available opportunity, it was entered at the first opportunity after the admissibility of the prosecution evidence had been determined. The Court held that the judge did not err in her assessment of the plea of guilty.

Regarding facilitation by the authorities, the Court found that the judge permissibly regarded the assistance provided by the authorities as a mitigating factor. However, the Court held that the judge erred in giving substantial weight to this factor.

The Court also held that the judge's remark that "the authorities shouldn't be encouraged to allow the furtherance of crime in the name of investigation" was incorrect, as allowing criminal conduct to continue does not constitute a circumstance of mitigation. Additionally, the Court found that the circumstance that no other persons had been charged in connection with the manufacturing of amphetamine was irrelevant to the sentencing of the respondent.

In light of these findings, the Court exercised its discretion not to intervene and dismissed the Crown's appeal against sentence. The Court took into account the nature of the offence, the respondent's plea of guilty, the facilitation by the authorities, the respondent's conduct after release on bail, and the sentence already served by the respondent.

Orders