R v Thorburn

The case of R v Thorburn involved the applicant appealing against the sentence imposed by the court, claiming that the requirement to serve 16 months in actual custody was manifestly excessive. The applicant had pleaded guilty to one count of incest, one count of attempt to obstruct the course of justice, and two counts of perjury. The applicant was sentenced to an effective head sentence of four years imprisonment, with the sentences of imprisonment suspended after the applicant had served 16 months imprisonment. The applicant argued that the sentence was manifestly excessive because he had served all but a couple of days of his time on remand in custody in a detention unit, isolated from the general prison population, and had been assaulted repeatedly by fellow inmates within a day or two of imprisonment.

The court was required to determine whether the sentencing judge erred in imposing a sentence that was manifestly excessive, taking into account the particular circumstances under which the applicant served his time on remand. The court examined the sentencing remarks to determine if the sentencing judge had erred in considering the applicant's time served in actual custody. The court held that the sentencing judge had made clear in the sentencing remarks that the applicant's time spent in solitary confinement would be considered in the circumstances, and such a factor was appropriately to be considered. The court further held that the reduction of the head sentence by six months imprisonment was well within a proper exercise of the sentencing discretion in all of the circumstances.

The court concluded that the sentencing judge was not in error to observe that the applicant was incarcerated as a consequence of his own actions, and significant allowance had been given for the circumstances in which the applicant served his time on remand. The court held that to have granted the applicant yet a further reduction in the actual time served would have resulted in a sentence which was too lenient. Accordingly, the sentence imposed was not unreasonable or plainly unjust, and the application for leave to appeal was refused.

The court's decision in R v Thorburn highlights the importance of considering all of the circumstances in which an applicant serves their time on remand when imposing a sentence. The court emphasised that sentencing an offender is not an exercise in addition or subtraction, but rather a balancing of many different and conflicting features. The court held that the sentencing judge had appropriately exercised their discretion in considering the applicant's time served in actual custody and that the sentence imposed was not manifestly excessive.