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The Queen v Thomson (No 3)

The Queen v Thomson (No 3)

Case [2015] ACTSC 379 13 November 2015

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HUMAN RIGHTS ACT 2004 (ACT)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Thomson (No 3)
Citation:	[2015] ACTSC 379
Hearing Date:	5 November 2015
DecisionDate:	13 November 2015
Before:	Refshauge J
Decision:	1. The convictions of committing an act of indecency in the presence of a person under the age of ten years on two occasions between 1 January and 30 September 2008 be confirmed. 2. For the first of those convictions, Sarah Thomson be sentenced to two years and six months imprisonment to commence today, 13 November 2015. 3. For the second of those convictions, Sarah Thomson be sentenced to two years and nine months imprisonment to commence on 12 May 2016 to be cumulative as to nine months on the first sentence. 4. The sentence be suspended today, 13 November 2015, for three years and three months. 5. Sarah Thomson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four years from today and with a probation condition that she be under the supervision of the Director General or her delegate for three years or such lesser period as the person supervising her considers appropriate and that she obey all reasonable directions of the supervising her.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – resentence following appeal – committing an act of indecency in the presence of a person under the age of ten years – opportunistic – no pre-meditation – delay – effect of delay upon human rights – offender the victim of severe domestic violence – suspended sentence – Good Behaviour Order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 3, 77, 89 Evidence Act 2011 (ACT), s 4(2)
Cases Cited:	Ashdown v The Queen (2011) 219 A Crim R 454 Cheung v The Queen (2001) 209 CLR 1 Ibbs v The Queen (1987) 163 CLR 447 Muldrock v The Queen (2011) 244 CLR 120 Reynolds v Wilkinson (1948) 51 WALR 17 R v Ferguson [2008] VSCA 257 R v Klobucar (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 186 of 2010, 19 September 2013) R v Mills [2011] ACTSC 107 R v Nikodjevic [2004] VSCA 222 R v Osenkowski (1982) 30 SASR 212 R v Thomson (No 2) [2014] ACTSC 133 Talukdar v Dunbar (2009) 194 A Crim R 545 The Queen v Carney [2013] ACTSC 266 Thomson v The Queen; The Queen v Thomson [2015] ACTCA 16 Valentini and Garvie (1980) 2 A Crim R 170
Parties:	The Queen (Crown) Sarah Jane Thomson (Defendant)
Representation:	Counsel Mr J White SC (Crown) Mr S Gill (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Pappas,j - attorney (Defendant)
File Number:	SCC 42 of 2012

Refshauge J:

After a trial commencing on 24 March 2014, Sarah Jane Thomson was convicted by a jury of three counts of…

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 The Queen v Thomson (No 3)

Details

AGLC: The Queen v Thomson (No 3) [2015] ACTSC 379
Case: [2015] ACTSC 379
Decision Date: 13 November 2015

CaseChat Overview and Summary

The Queen brought an appeal against the sentence imposed on Sarah Thomson, who was convicted of committing acts of indecency in the presence of a person under the age of ten years on two separate occasions. The matter was heard in the Supreme Court of the Australian Capital Territory. The appeal centred on the sentencing process and whether the appropriate sentence had been imposed on the offender, who had a history of domestic violence and whose actions were opportunistic and not premeditated.

The court considered whether the delay in sentencing affected the offender’s human rights. The court also considered the offender’s background, including her history of domestic violence, and the nature of the offending, which was opportunistic and not premeditated. The court found that the original sentence was manifestly inadequate and that the appropriate sentence would be a custodial sentence. However, due to the delay in sentencing and the offender’s background, the court imposed a suspended sentence with a Good Behaviour Order.

The court found that the appropriate sentence for the offender was a custodial sentence, but due to the delay in sentencing and the offender’s background, the court imposed a suspended sentence with a Good Behaviour Order. The court ordered that the convictions be confirmed and that the offender be sentenced to a term of imprisonment, which would commence on a future date. The sentence was suspended for a period of time, and the offender was required to comply with certain obligations and conditions as part of her sentence.

The final orders of the court were that the convictions be confirmed, that the offender be sentenced to a term of imprisonment, which would commence on a future date, that the sentence be suspended for a period of time, and that the offender be required to comply with certain obligations and conditions as part of her sentence. The offender was also required to sign an undertaking to comply with the offender’s good behaviour obligations and to be under the supervision of the Director General or their delegate for a specified period of time.

Orders

Orders of the court

1. The convictions of committing an act of indecency in the presence of a person under the age of ten years on two occasions between 1 January and 30 September 2008 be confirmed.

2. For the first of those convictions, Sarah Thomson be sentenced to two years and six months imprisonment to commence today, 13 November 2015.

3. For the second of those convictions, Sarah Thomson be sentenced to two years and nine months imprisonment to commence on 12 May 2016 to be cumulative as to nine months on the first sentence.

4. The sentence be suspended today, 13 November 2015, for three years and three months.

5. Sarah Thomson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four years from today and with a probation condition that she be under the supervision of the Director General or her delegate for three years or such lesser period as the person supervising her considers appropriate and that she obey all reasonable directions of the supervising her.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

The Queen v Thomson (No 3) [2015] ACTSC 379

Most Recent Citation

R v BI (No 4) [2017] ACTSC 71

Cases citing this decision · 2 of 2 shown

R v LC
[2017] ACTSC 209 Para 1

…no comparable cases. I was referred to the following: R v BI (No 4) [2017] ACTSC 71; R v BO (No 2) [2014] ACTSC 371; and The Queen v Thompson (No 3) [2015] ACTSC 379. These cases provide little assistance because their facts are so very different.…
R v BI (No 4)
[2017] ACTSC 71 Para 1

…cept that touching to or of the genitals is a more serious form of committing an act of indecency: R v SH [2015] ACTSC 25 at [24]; R v Thomson (No 3) [2015] ACTSC 379 at [24].…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Thomson v R
[2015] ACTCA 16 Para 1

…the appeal against conviction as to one count on the indictment and upheld the appeal against sentence. See Thomson v The Queen; The Queen v Thomson [2015] ACTCA 16. The count on the indictment that was the subject of the appeal and set aside was count three. The Court remitted the proceedings back to me for furt…
The Queen v Sarah Jane Thomson (No 2)
[2014] ACTSC 133 Para 1

…In my decision, R v Thomson (No 2) [2014] ACTSC 133 at [3]-[6] , I set out the general factual background which does not seem to have been controversial in the Court of Appeal. I said:…
R v Carney
[2013] ACTSC 266 Para 1

…These principles have been set out and explained in Cheung v The Queen (2001) 209 CLR 1 at 12-14. See also The Queen v Carney [2013] ACTSC 266 at [149]. These are the principles I shall apply.…
Ashdown v The Queen
[2011] VSCA 408 Para 1

…Neither counsel assisted me with any sentencing practice. Conscious of the caution with which I need to approach them, as explained in Ashdown v The Queen (2011) 219 A Crim R 454 at 511 I had access to the ACT sentencing database. It showed that prison is not inevitable for such an offence even after a plea of not guilty, th…
Muldrock v The Queen
[2011] HCA 39 Para 1

…also clear that a maximum penalty of a statutory offence serves as an indication of the relative seriousness of the offence. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31]. Nevertheless, as pointed out in Ibbs v The Queen (1987) 163 CLR 447 at 451-2, a sentencing court must be careful when sentencing for an…
In the Matter of An Application for the Adoption of “M”
[2011] ACTSC 107 Para 1

…As to the position under human rights jurisprudence, there are similar statements. Thus, in R v Mills [2011] ACTSC 107 at [19], Higgins CJ pointed out that the response to a finding of unreasonable delay may be a reduced penalty when guilt is found.…
R v Ferguson
[2008] VSCA 257 Para 1

…In R v Ferguson [2008] VSCA 257 at [29], the Victorian Court of Appeal explored the common law position and stated:…
R v Osenkowski
[2005] SASC 142 Para 1

…ourt of Appeal considered the issue of sentence, it did not express or criticise my reference to the well known comments of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-3, where his Honour said:…
R v Nikodjevic
[2004] VSCA 222 Para 1

…Nevertheless, as also pointed out in the Victorian Court of Appeal in R v Nikodjevic [2004] VSCA 222, every case is different and the effect will vary according to the circumstances. There is no automatic right to a discount in every case of delay.…
Cheung v The Queen
[2001] HCA 67 Para 1

…These principles have been set out and explained in Cheung v The Queen (2001) 209 CLR 1 at 12-14. See also The Queen v Carney [2013] ACTSC 266 at [149]. These are the principles I shall apply.…
Ibbs v the Queen
[1987] HCA 46 Para 1

…f the relative seriousness of the offence. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31]. Nevertheless, as pointed out in Ibbs v The Queen (1987) 163 CLR 447 at 451-2, a sentencing court must be careful when sentencing for an offence which may be committed in various ways. As the court said, at 452:…

Legislation cited in this decision · 4

Crimes (Sentencing) Act 2005 (ACT)
3, 7, 77, 89 5 mentions (from Para 1)
Evidence Act 2011 (ACT)
4(2) 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention
Human Rights Act 2004 (ACT)
1 mention (from Para 1)