Thomas, Brett David v The Queen - [2017] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Thomas, Brett David v R [2017] NSWCCA 273
Hearing dates: 14 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Before: Meagher JA;
Rothman J;
Button J
Decision:
(1)   Leave to appeal granted.

(2)   Appeal allowed in part.

(3)   Sentence imposed by the District Court on Brett Thomas on 16 December 2015 be quashed and in lieu thereof the following sentence be imposed.

(a)   Brett David Thomas is sentenced to an aggregate sentence for both counts 1 and 2 of a non-parole period of 3 years and 6 months, commencing 20 September 2014 and concluding 19 March 2018 and a remainder of term of a further 1 year and 6 months concluding 19 September 2019.
(b)   Brett David Thomas is first eligible to be released to parole on 19 March 2018.
Catchwords: CRIME – sentencing – offences of detain for advantage – where sentencing judge did not backdate the sentence sufficiently to account for prison time served solely in relation to the offences for which applicant was sentenced – whether sentence should be quashed and new sentence imposed to account for that time – parties in agreement as to orders to be made.
Legislation Cited: Crimes Act 1900, s 86(1)(b)
Crimes (Sentencing Procedure) Act 1999, s 43
Criminal Appeal Act 1912, s 6
Cases Cited: Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
R v Fuller (No 2) [2017] NSWSC 1351
Category: Principal judgment
Parties: Brett David Thomas (Applicant)
Regina (Respondent Crown)
Representation:
Counsel:
S Healy (Applicant)
S Dowling SC (Respondent Crown)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent Crown)

File Number(s): 2014/214903
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 December 2015

Before:

Tupman DCJ

File Number(s):

2014/214903

JUDGMENT

THE COURT: The applicant, Brett Thomas, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him in the District Court on 16 December 2015. The sentence was imposed and the remarks on sentence were provided ex tempore.
Some five months after sentence was imposed, the applicant sought to reopen the matter before the sentencing judge and, it seems, the application did not come to the attention of her Honour until later in the year at which time the new associate to her Honour informed the parties that her Honour had refused the application to reopen.
The issue in contention is the commencement date of the sentence. Her Honour did not backdate the sentence sufficiently to account for all of the days on which the applicant had served time in prison solely for the offences for which he was sentenced. The period in issue is 17 days.
The Crown concedes that the commencement date of the sentence should be 17 days earlier. The current sentence commenced on 6 October 2014 and the position, agreed between the applicant and respondent, is that 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 Thomas, Brett David v The Queen

Details

AGLC: Thomas, Brett David v The Queen [2017] NSWCCA 273
Case: [2017] NSWCCA 273
Decision Date: 23 November 2017

CaseChat Overview and Summary

Thomas, Brett David, was found guilty of several offences and sentenced to imprisonment by the Court of Appeal. The central issue in this case was the adequacy of the sentence imposed by the sentencing judge in relation to the time already served by the applicant in prison. The applicant argued that the sentence should be modified to appropriately account for the period he had spent in custody prior to the sentencing hearing. The legal question before the court was whether the sentence should be quashed and a new sentence imposed to reflect the time served in prison.

The court examined the sentencing principles relevant to the case, particularly the need to ensure that the sentence imposed was just and proportionate, taking into account the time already served by the applicant. The court found that the sentencing judge had not sufficiently adjusted the sentence to reflect the prison time served in relation to the specific offences for which the applicant was sentenced. As a result, the court determined that the sentence needed to be corrected to appropriately credit the time already served. Both parties agreed on the orders to be made to rectify the sentence.

The court quashed the original sentence and imposed a new sentence that properly accounted for the time served by the applicant. The new sentence was calculated to ensure that it reflected the appropriate period of imprisonment for the offences committed, taking into account the time already served. The decision was made in accordance with the principles of sentencing and to ensure that the applicant received a just and proportionate sentence for the crimes committed.

Orders