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Thomas v The Queen

Thomas v The Queen

Case [2021] VSCA 97 19 April 2021

Intentially Causing Serious Injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0190

DANIEL THOMAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, McLEISH and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2021
DATE OF JUDGMENT:	19 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 97
JUDGMENT APPEALED FROM:	[2019] VSC 608 (Coghlan JA)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury in circumstances of gross violence (2 charges) – Aggravated burglary – Theft – Sentenced to 11 years and 6 months’ imprisonment – Non-parole period 9 years – Whether manifestly excessive – Applicant’s acquired brain injury (ABI) – Cognitive deficits - Whether causal link to offending – Applicant offended while affected by drugs and alcohol – Planned and purposeful offending – Open to judge to reject causal link with ABI – Very serious offending – Long term harm to both victims – Sentence within range – Leave to appeal refused – Carroll v The Queen [2011] VSCA 150 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Desmond	David Baresse & Associates
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
McLEISH JA
SIFRIS JA:

Introduction

The applicant pleaded guilty to multiple charges arising from an attack on two men in the early hours of the morning. He was sentenced as set out in the table below. He now seeks leave to appeal against sentence. For reasons which follow, we would refuse leave to appeal.

Charge on Indictment Offence Maximum Sentence Orders

1.       Aggravated burglary 25 years 2 years 6 months cumulative

2.       Causing serious injury intentionally in circumstances of gross violence 20 years 8 years Base sentence

3.       Causing serious injury intentionally in circumstances of gross violence 20 years 8 years 6 years concurrent

4.       Theft 10 years 3 months -

5.       Resisting an emergency worker on duty 5 years 2 years 6 months cumulative

6.       Making a threat to kill 10 years 2 years 6 months cumulative

Total Effective Sentence: 11 years and 6 months’ imprisonment

Non-Parole Period: 9 years’ imprisonment

Pre-Sentence Detention Declared: 1,126 days

Section 6AAA statement: 15 years’ imprisonment with a non-parole period of 12 years.

Ancillary orders: Sentenced as a serious offender in respect of charges 2 and 3.
Circumstances of the offending[1]

[1]This summary is taken from DPP v Thomas [2019] VSC 608 (‘Reasons for Sentence’), the Amended Summary of Prosecution Opening dated 23 July 2018 and the Registrar’s neutral summary.

Around 5:00 am on 25 July 2016, the applicant and a co-offender (B) went to the home of CN and SS. The applicant had known CN for a number of years. Inside, CN was dozing at the kitchen table, while SS was asleep in his bedroom.

The offenders were dressed in clothing which looked like Victoria Police uniforms. They entered via an unlocked door, shouting, ‘This is a police raid, get on the floor, face down. Where are your drugs?’. Believing they were police, CN complied with their…

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 The Queen

Details

AGLC: Thomas v The Queen [2021] VSCA 97
Case: [2021] VSCA 97
Decision Date: 19 April 2021

CaseChat Overview and Summary

The appellant, Thomas, sought leave to appeal against his conviction and sentence. He was convicted of two counts of intentionally causing serious injury in circumstances of gross violence, one count of aggravated burglary, and one count of theft. The sentence imposed was 11 years and 6 months' imprisonment, with a non-parole period of 9 years. The primary contention was whether the sentence was manifestly excessive, particularly in light of the applicant's acquired brain injury (ABI) and its impact on his offending behaviour. The applicant argued that his ABI contributed to his offending, while the prosecution maintained that the sentence was appropriate given the severity of the crimes committed.

The court was required to determine whether the sentence was manifestly excessive and whether the applicant's ABI had a significant impact on his offending behaviour. The court noted that the applicant had committed planned and purposeful offences while under the influence of drugs and alcohol. The judge had considered the applicant's ABI but rejected the causal link to the offending behaviour. The court held that it was open to the judge to reject the causal link between the ABI and the offending, given the applicant's planned and purposeful nature of the crimes. The very serious offending and the long-term harm caused to both victims were also considered in assessing the sentence. The court concluded that the sentence was within the appropriate range.

The court found that the applicant's ABI did not establish a causal link to the offending, and the sentence was not manifestly excessive. The court also considered the need for denunciation and deterrence in the sentencing process. The applicant's offending was serious and deliberate, and the sentence reflected the gravity of the crimes committed. The appeal was dismissed, and the decision of Carroll v The Queen [2011] VSCA 150 was applied. The final orders were that the applicant's appeal against sentence was dismissed, and the original sentence stood.

Orders