R v Thornton - [2015] NSWCCA 94

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	R v Thornton
Medium Neutral Citation:	[2015] NSWCCA 94
Hearing Date(s):	4 May 2015
Date of Orders:	15 May 2015
Decision Date:	15 May 2015
Before:	Hoeben CJ at CL at [1] Hidden J at [2] Beech-Jones J at [3]
Decision:	(1) The applicant be granted an extension of time in which to apply for leave to appeal. (2) Leave to appeal be granted. (3) The appeal be dismissed.
Catchwords:	SENTENCE APPEAL – serious unprovoked assaults in nightclub – applicant had poor criminal record – sentencing judge found affected by alcohol – challenge to finding rejected – whether sentencing judge erred in fully accumulating sentence for two assaults – sentencing judge considered totality by adjusting sentence for each offence – no error shown – appeal dismissed.
Legislation Cited:	- Crimes Act 1900 (NSW) – s 33 - Crimes (Sentencing Procedure) Act 1999 – s 12 - Criminal Appeal Act 1912 – s 6(3)
Cases Cited:	- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 - Mill v R [1988] HCA 70; 166 CLR 59 - Pearce v R [1998] HCA 57; 194 CLR 610 - R v Loveridge [2014] NSWCCA 120
Category:	Principal judgment
Parties:	Director of Public Prosecutions – Appellant Steven Graham Thornton – Respondent
Representation:	Counsel: Dr R.J. Webb – Appellant Neil J. Adams – Respondent Solicitors: Solicitor for Public Prosecutions – Appellant Legal Aid – Respondent
File Number(s):	2011/178121
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Penrith District Court
Date of Decision:	25 October 2013
Before:	English DCJ
File Number(s):	2011/178121

JUDGMENT

HOEBEN CJ at CL: I agree with Beech-Jones J.
HIDDEN J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from the sentences imposed by the District Court upon the applicant for two serious assaults.
On 22 October 2012 the applicant pleaded guilty to an indictment that contained two counts. The first count charged him with an offence under s 33(1)(b) of the Crimes Act 1900 (NSW) namely that on 12 March 2011 he inflicted grievous bodily harm upon a person with intent to do grievous bodily harm. The second count charged him with an offence under s 59 of the Crimes Act 1900 namely that on the same date he committed an assault occasioning actual bodily harm. The first count attracted a maximum penalty of twenty five years imprisonment. The second count attracted a maximum penalty of five years imprisonment.
On 25 October 2013 the sentencing judge published reasons for judgment. Those reasons record that the applicant was sentenced on the first count to a fixed term of one year imprisonment commencing 31 May 2011 and expiring on 30 May 2012 and on the second count to imprisonment for a term of imprisonment of six years and four months commencing 31 May 2012 and expiring 30 September 2018. It is clear from the sentencing judgment that her Honour misunderstood…

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 Thornton

Details

AGLC: R v Thornton [2015] NSWCCA 94
Case: [2015] NSWCCA 94
Decision Date: 15 May 2015

CaseChat Overview and Summary

In the case of R v Thornton, the applicant appealed against the sentence imposed for two serious, unprovoked assaults in a nightclub. The sentencing judge found that the applicant had a poor criminal record and had been affected by alcohol at the time of the offences. The court was required to determine whether the sentencing judge had erred in fully accumulating the sentence for the two assaults, and whether the judge had considered the totality of the circumstances by adjusting the sentence for each offence. The applicant argued that the judge should have exercised discretion to impose a concurrent or partially concurrent sentence. However, the court found that the sentencing judge had considered the totality of the circumstances and had not erred in fully accumulating the sentence for the two assaults. The appeal was dismissed. The court held that the sentencing judge had considered the totality of the circumstances by adjusting the sentence for each offence, and had not erred in fully accumulating the sentence for the two assaults. The court found that the sentencing judge had appropriately considered the applicant's criminal history, the nature and circumstances of the offences, and the effect of alcohol on the applicant's behaviour. The court held that the sentencing judge had not shown any error in imposing a fully accumulated sentence for the two assaults. The appeal was dismissed, and the original sentence was upheld.

Orders