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Thomas v R

Thomas v R

Case [2019] NSWCCA 265 8 November 2019

Sentencing

Aggravated & Exemplary Damages

Manifest Excess

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Thomas v R [2019] NSWCCA 265
Hearing dates: 27 September 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Before: Payne JA at [1]; Fullerton J at [67]; Adamson J at [68]
Decision:
(1) Application for leave to appeal against sentence allowed.
(2) Appeal allowed.
(3) Quash each of the sentences imposed by Herbert DCJ on 20 April 2018 and in lieu thereof impose an aggregate sentence of 11 years imprisonment commencing on 19 July 2016 and expiring on 18 July 2027 with a non-parole period of 8 years expiring on 18 July 2024. The first day on which the applicant will be eligible to release on parole is 18 July 2024.

Catchwords: CRIME – appeals – appeal against sentence – manifest excess – sexual offences against four child victims – 13 counts of indecent assault and 2 counts of aggravated incite act of indecency – individual sentence imposed for each count – total effective sentence of 11 years imprisonment and 8 years non-parole period – most of the individual sentences imposed were manifestly excessive – set aside individual sentences – re-sentence to aggregate sentence of 11 years imprisonment and 8 years non-parole period
Legislation Cited: Crimes Act 1900 (NSW), ss 61M, 61O
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(5A), 53A
Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bray v R [2018] NSWCCA 301
Clinch v R (1994) 72 A Crim R 301
Corby v R [2010] NSWCCA 146
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DL v The Queen [2018] HCA 32; 92 ALJR 764
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jarvis v The Queen (1993) 20 WAR 201
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2001) 228 CLR 357; [2005] HCA 25
Nantahkum v R [2013] ACTCA 40; 279 FLR 148
R v Barry [2011] QCA 119
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
Category: Principal judgment
Parties: Matthew Brunel Thomas (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Wilson SC (Applicant)
D Patch (Respondent)
Solicitors:
Blair Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/162278; 2016/218952;2016/218978; 2016/218982
Publication restriction: Non-publication of any information or material that may lead to the identification of the victims pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).Non-publication order made on the name of the school.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

20 April 2018

Before:

Herbert DCJ

File Number(s):

2016/162278; 2016/218952;
2016/218978; 2016/218982

Judgment

PAYNE JA: On 20 April 2018, Herbert DCJ sentenced 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 v R

Details

AGLC: Thomas v The Queen [2019] NSWCCA 265
Case: [2019] NSWCCA 265
Decision Date: 08 November 2019

CaseChat Overview and Summary

In Thomas v R, the appellant, who had been convicted on 15 counts of various sexual offences against four child victims, challenged the severity of the sentences imposed by the lower court. The appellant was found guilty of 13 counts of indecent assault and 2 counts of aggravated incite act of indecency. The lower court had imposed individual sentences for each count, resulting in a total effective sentence of 11 years imprisonment with an 8-year non-parole period. The appellant contended that the individual sentences were manifestly excessive.

The central legal issue before the court was whether the sentences imposed by the lower court were manifestly excessive and needed to be set aside in favour of an aggregate sentence. The court needed to determine if the individual sentences for each count, as opposed to an aggregate sentence, were justified given the nature and circumstances of the offences committed against multiple child victims. The appellant argued that the imposition of separate sentences for each count resulted in an overall sentence that was unduly harsh.

The court found that most of the individual sentences imposed by the lower court were indeed manifestly excessive. It held that the separate sentencing for each count did not adequately reflect the overarching nature of the offending against multiple victims. The court decided to set aside the individual sentences and re-sentence the appellant to an aggregate sentence of 11 years imprisonment with an 8-year non-parole period. This decision was made to ensure that the sentence reflected the totality of the offending while avoiding undue harshness. The court’s ruling thus provided a more proportionate sentence in light of the appellant’s crimes against multiple victims.

Orders