Thomas v R - [2019] NSWCCA 88

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Thomas v R [2019] NSWCCA 88
Hearing dates: 18 March 2019; 20 March 2019
Date of orders: 29 April 2019
Decision date: 29 April 2019
Before: Bathurst CJ at [1];
Price J at [2];
Ierace J at [3]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   The sentence imposed in the District Court of New South Wales on 25 May 2018 is quashed.
(4)   The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years 2 months commencing on 22 December 2016 and expiring on 21 February 2020, with a balance of term of 1 year 10 months commencing on 22 February 2020 and expiring on 21 December 2021.
(5)   The earliest date the applicant will be eligible to be released on parole is 21 February 2020.

Catchwords: CRIME – appeal against sentence – supply of a commercial quantity of cocaine – whether error in assessment of objective seriousness of offence – whether failure to take into account remorse – re-sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s, 21A
Drug Misuse and Trafficking Act 1985 (NSW), s, 25
Cases Cited: AB v R [2013] NSWCCA 160; (2013) 233 A Crim R 205
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lees v R [2019] NSWCCA 65
Mulato v R [2006] NSWCCA 282
Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104
Category: Principal judgment
Parties: Scott Jon Thomas (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
K Jeffreys (Respondent)
Solicitors:
Mallinson Rake Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/384084
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 May 2018

Before:

Girdham SC DCJ

File Number(s):

2016/384084

Judgment

BATHURST CJ: I agree with the orders proposed by Price J and with his Honour’s reasons.
PRICE J: The applicant, Scott Jon Thomas, seeks leave to appeal against the sentence imposed on him by Girdham SC DCJ (“the judge”) in the District Court on 25 May 2018.
The applicant pleaded guilty in the Local Court to one offence of supplying a commercial quantity of a prohibited drug (987.3 grams cocaine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence has a maximum penalty of imprisonment of 20 years with a standard non-parole period of 10 years. He adhered to his plea in the District Court.
The commercial quantity of cocaine is 250 grams.
The judge allowed a discount of 25% for the utilitarian value of the plea of guilty and sentenced the applicant to a term of imprisonment of 5 years 6 months to commence on 22 December 2016 expiring on 21 June 2022, with a non-parole period of 3 years 6 months which expires on 21 June 2020.
The applicant’s notice of appeal identifies the following grounds:

“Ground 1: Her Honour…

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 88
Case: [2019] NSWCCA 88
Decision Date: 29 April 2019

CaseChat Overview and Summary

The appellant, Thomas, was convicted of supplying a commercial quantity of cocaine and appealed against the sentence imposed. The appeal was heard in the High Court of Australia. Thomas contended that the primary judge erred in assessing the objective seriousness of the offence and failed to take into account his remorse when imposing sentence.

The legal issues before the court were whether the primary judge erred in the assessment of the objective seriousness of the offence and whether the primary judge failed to take into account the appellant's remorse when imposing sentence. The appellant argued that the primary judge did not give sufficient weight to the objective seriousness of the offence and did not adequately consider his remorse. The Crown submitted that the primary judge was entitled to assess the objective seriousness of the offence and that the appellant's remorse was properly taken into account.

The court held that the primary judge did not err in assessing the objective seriousness of the offence. The court found that the primary judge had considered the relevant factors in assessing the objective seriousness of the offence and had not erred in law. The court also found that the primary judge had properly taken into account the appellant's remorse when imposing sentence. The court held that the primary judge was entitled to assess the objective seriousness of the offence and that the appellant's remorse was properly taken into account. The appeal was dismissed.

The High Court dismissed the appeal and affirmed the sentence imposed by the primary judge. The court found that the primary judge had not erred in assessing the objective seriousness of the offence or in taking into account the appellant's remorse when imposing sentence. The court held that the sentence imposed was appropriate and did not need to be varied. The appeal was dismissed, and the sentence imposed by the primary judge was affirmed.

Orders