R v Timpson

[2003] NSWCCA 257

CITATION:	R v Timpson [2003] NSWCCA 257
HEARING DATE(S):	05/09/03
JUDGMENT DATE:	5 September 2003
JUDGMENT OF:	Meagher JA at 1, 9; Sully J at 7; Smart AJ at 8
DECISION:	Application acceded to, appeal dismissed.
CATCHWORDS:	Accumulation of sentences - Discount of non-parole period.
PARTIES :	Regina v David Leslie Timpson
FILE NUMBER(S):	CCA 60207 of 2003
COUNSEL:	A: A Francis R: D Howard
SOLICITORS:	A: M Klees R: S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/71/0048
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

CCA 60207 of 2003

MEAGHER JA
SULLY J
SMART AJ

Friday, 5 September 2003

R v TIMPSON

Judgment

1 MEAGHER JA: This is an appeal by Mr David Leslie Timpson who was sentenced by her Honour Morgan DCJ at Wagga on 28 June 2002. The circumstances of the offence on which her Honour sentenced him I find quite horrifying but unfortunately it is necessary to set them out.

2 He and an accomplice sought out the premises of an eighty-one year old man who was at the time lying in his bed. They sought him out to the extent of driving 600 kilometres to his house. They broke into his house at night by smashing a window. They cut the phone line to disable any communication. They struck him twice on the head with an unknown object. They tied his hands behind his back with masking tape and the telephone cord. They bound his legs. A pillowcase was taped over his head. They stole $600 of his money in cash and ransacked the house. They left the house and stole his car.

3 The unfortunate victim remained tied up for two and a half days and was only discovered later because the police found his car abandoned and became suspicious. When he was found he was severely dehydrated and confused. He had extensive head injuries, two fractured ribs and his hands were extremely swollen, bruised with abrasions to his forearms and wrists. His pillowcase and his bed were covered with a substantial amount of blood and his medical condition was such that an early attack of senile dementia was provoked.

4 I find the circumstances of this crime absolutely horrifying and the fact that her Honour sentenced Mr Timpson to five years does not surprise me in the least. Left to myself I would have imposed a much heavier sentence.

5 What Mr Timpson’s counsel’s application concerns in the present case is that the matter was aggravated by virtue of the fact that before the convictions at Wagga there had been convictions in the Gosford District Court on 8 November 2001 where he was sentenced to five years from 8 May 2001 with a three and a half year non-parole period eligible to be released on 8 February 2005. Her Honour Morgan DCJ at Wagga made his sentence commence from 8 February 2005, in other words, on the day on which he would have been eligible for release from the Gosford sentences. In those circumstances it has been urged on us that her Honour erred by failing adequately to discount the non-parole period having regard to the accumulation of sentences and made a strong submission that a less severe sentence was warranted at law. In my view, those submissions should be rejected.

6 Counsel for the applicant has conceded that neither statute nor binding authority compel us to accede to those submissions and that being so, we are left to the question of principle. I can see no principle which would justify acceptance of those submissions. Indeed, the absolute repugnance I feel and the brutality of the applicant’s behaviour makes me suggest any leniency of any description should not be granted to him by this court. I would think it is probably better if the application to appeal were acceded to and the appeal dismissed.

7 SULLY J: I agree with the orders proposed and the reasons given. I share in their entirety the expressions of revulsion expressed by the learned presiding Judge for the barbarous nature of this particular offence.

8 SMART AJ: I also agree with Meagher JA.

9 MEAGHER JA: The orders are his application is acceded to but the appeal is dismissed.

*****

Last Modified: 09/15/2003