R v Thorn - [2020] ACTSC 363

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Thorn
Citation:	[2020] ACTSC 363
Hearing Date:	28 September 2020
Decision Date:	30 November 2020
Before:	Burns J
Decision:	See [82]–[117]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re- sentence – breach of good behaviour order – three counts burglary – six counts theft – damaging property – riding vehicle without consent – three counts obtaining property by deception – five counts minor theft – obtaining financial advantage – resisting police – possession of stolen property – having wrong number plate on car – three counts attempted robbery – taking motor vehicle without consent – dangerous driving – two counts attempting to take motor vehicle – affray – attempted aggravated robbery – pleas of guilty – consideration of impact of schizophrenia and illicit drug use on moral culpability – guarded
prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT) s 116(3) Criminal Code 2002 (ACT) ss 308, 309, 311, 316, 318, 321, 324, 332 Road Transport (Vehicle Registration) Act 1999 (ACT) s 22
Cases Cited:	R v Thorn [2016] ACTSC 217
Parties:	The Queen (Crown)
James David Thorn (Offender)
Representation:	Counsel
M Howe (Crown)
H Snobar (28 September 2020) C Brinky (30 November 2020) (Crown)
M Jones (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Commonwealth Director of Public Prosecutions (Crown) Boxall Legal (Offender)
File Numbers:	SCC 24 of 2016; SCC 72 of 2020; SCC 73 of 2020; SCC 88 of 2020; SCC 89 of 2020
BURNS J:

1. James Thorn, you come before this Court to be sentenced for 32 offences committed on seven separate dates between May 2018 and May 2019. A comprehensive Statement of Facts was tendered without objection by the Crown at the sentence hearing on 28 September 2020. I will not recite that Statement in full, but I will briefly summarise each of the offences in chronological order. I will identify each of the offences by the court number allocated in the ACT Magistrates Court. I will start with the 2018 offences.

The facts

The 2018 offences

2. On 7 May 2018, you committed an offence of burglary in residential premises in Wright in the ACT. This offence is contrary to s 311 of the Criminal Code 2002 (ACT) (the Criminal Code) and carries a maximum penalty of 14 years' imprisonment, a fine of $210,000, or both. The premises were ransacked, thus, adding to the sense of invasion that would have been felt by the occupants. In any burglary in residential premises, there is a risk of confrontation with the occupants, although that risk did not eventuate on this occasion. You were identified as the offender by fingerprints located at the scene. This is the basis of charge CC2018/7984. I would assess the objective seriousness of this offence as below the mid-range.
3. In the same premises, you committed an offence of theft of an iPad box. This is the basis of charge CC2018/10152. The maximum…

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 Thorn

Details

AGLC: R v Thorn [2020] ACTSC 363
Case: [2020] ACTSC 363
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, James David Thorn was sentenced for 32 offences committed between May 2018 and May 2019. These included multiple instances of burglary, theft, damaging property, riding a motor vehicle without consent, obtaining property by deception, resisting police, possession of stolen property, having a wrong number plate on a car, dangerous driving, attempted robbery, taking a motor vehicle without consent, affray, and attempted aggravated robbery. The court considered the impact of Thorn's schizophrenia, substance use disorder, and traumatic brain injuries on his moral culpability and prospects for rehabilitation. Thorn had a significant criminal history and was deemed a high risk for general re-offending.

The legal issues the court had to decide included the extent to which Thorn's mental health conditions and drug use reduced his moral culpability, and the appropriate sentences for each offence, taking into account mitigating factors such as his pleas of guilty. The court also had to determine whether Thorn's brain injuries and seizures contributed to his offending behaviour.

In its reasoning, the court found that while Thorn's mental illness and drug use did reduce his moral culpability to some extent, his offences were largely goal-directed and not solely the result of his mental health conditions. The court imposed sentences for each offence, reducing the otherwise appropriate sentences by varying percentages for Thorn's pleas of guilty. The total sentence imposed was six years and one month imprisonment, with a non-parole period of three years and four months. The court also revoked Thorn's previous recognizance release order and imposed a good behaviour order for 30 days.

The final orders of the court included convictions and specific sentences for each offence, with the sentences to commence on various dates between August 2019 and September 2025. Thorn was also disqualified from holding or obtaining a licence for a period of 12 months for the dangerous driving offence.

Orders