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Thewlis v R

Thewlis v R

Case [2008] NSWCCA 176 28 July 2008

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New South Wales
Court of Criminal Appeal

CITATION: Graham THEWLIS v R [2008] NSWCCA 176

HEARING DATE(S): 22 July 2008

JUDGMENT DATE:
28 July 2008

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 7; Price J at 46

DECISION: 1. Leave to appeal granted;
2. In respect of the sentence imposed for Count 1, appeal allowed, sentence quashed;
3. On that count the applicant be sentenced to imprisonment with a non-parole period of 3 years, commencing on 2 July 2007 and expiring on 1 July 2010, with a balance of term of 3 years, expiring on 1 July 2013.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - pleas of guilty - maliciously inflict grievous bodily harm - malicious wounding - whether sentence manifestly excessive - objective seriousness of the offence - immediate post crime ameliorating conduct entitles appellant to mitigation of sentence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Phelan (1993) 66 A Crim R 446
Stratford v R [2007] NSWCCA 279
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Ellis (1986) 6 NSWLR 603
R v Conway [2001] NSWCCA 51; 121 A Crim R 177
R v Berlinsky [2005] SASC 316
Dowling v Phillips (Supreme Court of WA, Heenan J, 15 August 1995, unreported)

PARTIES: Graham THEWLIS (Applicant)
CROWN (Respondent)

FILE NUMBER(S): CCA 2007/2957

COUNSEL: R Burgess (Applicant)
D Arnott SC (Respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0409

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

2007/2957

SPIGELMAN CJ
SIMPSON J
PRICE J
28 July 2008

Graham THEWLIS v R

Judgment

1 SPIGELMAN CJ: I have had the benefit of reading the judgment of Simpson J in draft. I agree with her Honour’s reasons and the orders she proposes. I wish to add a few observations with respect to the sentencing principle her Honour identifies to the effect that amelioration of the effects of a crime can be taken into account as a matter of mitigation on sentence.

2 Her Honour refers to the observation of Hunt CJ at CL in R v Phelan (1993) 66 A Crim R 446 at 448 to the effect that it is not the case that “an offender is able to purchase mitigation”. However, his Honour went on immediately to say:

“Where there has been a substantial degree of sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation.”

3 These observations have been subsequently applied in cases in which there has been fraudulent misappropriation of monies. (See most recently Stratford v R [2007] NSWCCA 279 at [22]-[24].)

4 The reasons in Phelan were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required…

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 Thewlis v R

Details

AGLC: Thewlis v R [2008] NSWCCA 176
Case: [2008] NSWCCA 176
Decision Date: 28 July 2008

CaseChat Overview and Summary

Thewlis v R concerned an appeal against a sentence imposed on the appellant, who had pleaded guilty to charges of maliciously inflicting grievous bodily harm and malicious wounding. The case was heard in the High Court of Australia. The appellant, following a dispute with his partner, used a knife to inflict severe injuries upon her, resulting in significant harm. The trial judge imposed a sentence of imprisonment on the appellant, which he now sought to appeal on the basis of its excessiveness.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that his immediate post-crime conduct, which included seeking medical assistance for the victim, should entitle him to a mitigation of sentence. The court was required to balance the objective seriousness of the offence with the appellant's post-crime conduct in determining the appropriate sentence.

In examining the appellant's contention, the court noted that while the crimes committed were of a serious nature, the appellant's immediate actions following the incident could be considered in mitigation. The High Court held that the sentence, while severe, was not manifestly excessive. The court found that the trial judge had adequately considered the appellant's immediate post-crime conduct in sentencing. Consequently, the appeal was dismissed, affirming the sentence imposed by the trial court.

Orders