Shayne Bradley Thomas v The Queen - [2020] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0114

SHAYNE BRADLEY THOMAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and T FORREST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 April 2020
DATE OF JUDGMENT:	5 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 107
JUDGMENT APPEALED FROM:	DPP v Thomas (Unreported, County Court of Victoria, Judge Gwynn, 20 February 2019)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, armed robbery, aggravated rape, false imprisonment – Applicant sentenced at time of serving another sentence in Queensland – Overall total effective sentence of 11 years, 7 months and 3 days, with effective non-parole period of 8 years, 5 months and 3 days – Whether sentencing judge failed to take into account low non-parole period for Queensland offending and effective pre-sentence detention – Whether principle of totality infringed – Victorian offending extraordinarily grave – Leave to appeal refused – Mill v The Queen (1988) 166 CLR 59, R v Mangelen (2009) 23 VR 692 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Mr T Bourbon	Emma Turnbull Lawyers
For the Respondent	Mr P L Bourke	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
T FORREST JA:

Introduction

On 20 February 2019, the applicant was sentenced in the County Court at Melbourne for four offences committed, as part of one episode, in 1986. The details of the sentences are set out in the table below.

Charge	Offence	Maximum	Sentence	Cumulation
1.	Aggravated burglary (s 77 of the Crimes Act 1958)	20 years’ imprisonment	3 years and 3 months’ imprisonment	8 months
2.	Armed robbery (s 75A of the Crimes Act 1958)	25 years’ imprisonment	3 years and 9 months’ imprisonment	8 months
3.	Aggravated rape (s 46(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980)	20 years’ imprisonment	6 years’ imprisonment	Base
4.	False imprisonment (Common law)	10 years’ imprisonment	2 years’ imprisonment	4 months
Total effective sentence		7 years and 8 months’ imprisonment
Non-parole period		4 years and 6 months
Pre-sentence detention		Nil
Section 6AAA statement		9 years and 9 months’ imprisonment with a non-parole period of 7 years and 3 months

No pre-sentence detention was ordered because when he was sentenced, the applicant was serving another sentence. On 23 August 2016 in the District Court at Brisbane, the applicant was sentenced to a total effective sentence of nine years and six months’ imprisonment, with a non-parole period of two years and nine months. By the time the applicant was extradited to Victoria for the Victorian offences, he had served three years, 11 months and three days of his Queensland sentence. His non-parole period had expired one year, two months and six days prior to his extradition. Despite being recommended to parole[1] at the expiry of his minimum term, the applicant was denied parole in Queensland and remained imprisoned, pending his extradition to Victoria to be dealt with on the…

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 Shayne Bradley Thomas v The Queen

Details

AGLC: Shayne Bradley Thomas v The Queen [2020] VSCA 107
Case: [2020] VSCA 107
Decision Date: 5 May 2020

CaseChat Overview and Summary

The applicant, Shayne Bradley Thomas, sought leave to appeal against his sentence in the Supreme Court of Victoria. He was convicted of multiple serious offences, including aggravated burglary, armed robbery, aggravated rape, and false imprisonment. The court was tasked with determining whether the sentencing judge had failed to consider the low non-parole period for the Queensland offending and the effective pre-sentence detention, and whether this resulted in a breach of the principle of totality.

The court examined whether the sentencing judge had adequately considered the interplay between the sentences for the Victorian and Queensland offences. The principle of totality ensures that the cumulative effect of multiple sentences is considered to avoid unjust outcomes. The court also assessed the severity of the Victorian offences, which were described as extraordinarily grave, to determine if any perceived error in the sentencing process was significant enough to warrant an appeal.

The Supreme Court found that the sentencing judge had properly considered the totality principle and the gravity of the Victorian offences. The effective sentence imposed was considered appropriate given the circumstances. Consequently, the court refused the applicant's application for leave to appeal, confirming that the sentence was within the correct legal framework. The decision referenced previous cases such as Mill v The Queen and R v Mangelen to support its findings on the principle of totality and the severity of the offences.

Orders