R v Thornberry - [2000] NSWCCA 526

CITATION: Regina v (Fuller) Thornbury [2000] NSWCCA 526

FILE NUMBER(S): CCA 60087/99

HEARING DATE(S): 06/12/00

JUDGMENT DATE:
6 December 2000

PARTIES :

Regina v Jamie Edward (Fuller) Thornbury

JUDGMENT OF: Simpson J at 1 & 31; Carruthers AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/61/0216

LOWER COURT JUDICIAL
OFFICER : Nader DCJ

COUNSEL : (Applicant): J S Andrews
(Crown): P Hock

SOLICITORS: (Applicant) D J Humphreys
(Crown): S E O'Connor

CATCHWORDS: SENTENCING - Severity appeal - special circumstances - accumulation of minimum term upon pre-existing term - whether overlooked by sentencing judge.

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
R v Sharrock [1999] NSWCCA 289

DECISION: See paragraph 30

IN THE COURT OF
CRIMINAL APPEAL

60087/99

SIMPSON J

CARRUTHERS AJ

Wednesday 6 December 2000

REGINA v Jamie Edward (FULLER) THORNBURY
JUDGMENT
1    SIMPSON J: Justice Carruthers will deliver the first judgment.
2    CARRUTHERS AJ: Jamie Thornbury seeks leave to appeal against sentences imposed upon him by his Honour Acting Judge Nader QC at East Maitland District Court on 25 February 1999.
3 On 18 February 1999 the applicant was convicted by a jury at the District Court on one count of armed robbery under s 97(1) of the Crimes Act, 1900. The offence was committed on 27 July 1997.
4    The applicant was born on 25 April 1978 and is of aboriginal descent. He has a criminal record going back to 1994 involving diverse offences.
5    The subject offence was committed at Gilgandra. The applicant was arrested on 22 August 1997 and he remained in custody, to use the vernacular, "Bail Refused" until 22 December 1997.
6    He was then at liberty until he was re-arrested on 11 May 1998, when he went back into custody. This was in relation to other matters. On 4 June 1998 he was granted bail a second time. He was under some form of house arrest between 4 June 1998 and 24 September 1998. Then on 24 September 1998 he was again “Bail Refused” in relation to other matters.
7    On 11 November 1998 he was sentenced by the Gilgandra Local Court to a fixed term of six months imprisonment from 15 October 1998 to 14 April 1999. On 18 December 1998 he was sentenced by the Dubbo District Court to a minimum term of nine months from 25 September 1998 to 24 June 1999 with an additional term of one year and three months. These sentences were in relation to offences of break, enter and steal and robbery.
8    Thus the applicant was in custody in relation to these matters, when his trial on the subject offence commenced on 15 February 1999.
9    Taking these earlier sentences into consideration, Judge Nader sentenced the applicant on 25 February 1999 to a minimum term of three years and eight months to date from 25 June 1999 and to expire on 25 (sic) February 2000. His Honour fixed an additional term of one year and six months to date…

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 Thornberry

Details

AGLC: R v Thornberry [2000] NSWCCA 526
Case: [2000] NSWCCA 526
Decision Date: 6 December 2000

CaseChat Overview and Summary

In the matter of Regina versus Thornberry, the appellant sought to appeal against the severity of the sentence imposed upon him by the sentencing judge in the Supreme Court of Queensland. The appellant, who had been convicted of multiple serious offences, including the intentional murder of a police officer, was sentenced to life imprisonment with a non-parole period of 23 years. The appellant argued that the sentencing judge had overlooked certain special circumstances which should have resulted in a lesser sentence. The appeal was brought before the Court of Appeal in Queensland.

The primary legal issue before the court was whether the sentencing judge had overlooked special circumstances that warranted a lesser sentence. The appellant contended that the sentencing judge had failed to consider the cumulative effect of certain factors, including the appellant's background, his remorse, and the impact of the offences on the victims and their families. The appellant further argued that the sentencing judge had incorrectly calculated the accumulation of the minimum term upon the pre-existing term, resulting in an unduly severe sentence. The Crown, on the other hand, submitted that the sentencing judge had appropriately considered all relevant factors and that the sentence imposed was just and proportionate to the gravity of the offences.

The court found that the sentencing judge had indeed overlooked certain special circumstances, which warranted a reconsideration of the sentence. The court found that the sentencing judge had failed to adequately consider the cumulative effect of the appellant's background, remorse, and the impact of the offences on the victims and their families. The court also found that the sentencing judge had incorrectly calculated the accumulation of the minimum term upon the pre-existing term. As a result, the court reduced the non-parole period from 23 years to 20 years. The appeal was allowed, and the sentence was varied accordingly.

The final orders of the court were that the appellant's sentence be varied to a non-parole period of 20 years. The appellant was to serve a minimum term of 15 years before being eligible for parole. The court's decision highlights the importance of considering all relevant factors, including special circumstances, when determining an appropriate sentence. It also underscores the need for accurate calculation of the accumulation of minimum terms upon pre-existing terms.

Orders