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Thompson-Davis v R

Thompson-Davis v R

Case [2013] NSWCCA 75 11 April 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Thompson-Davis v R [2013] NSWCCA 75
Hearing dates: 24/7/2012
Decision date: 11 April 2013
Before: Beazley P at [1]
Hall J at [2]
Campbell J at [3]
Decision:
(1) Grant leave to appeal;
(2) Allow the appeal;
(3) Quash the sentence imposed on the applicant by the District Court on 1st April 2010 and instead sentence the applicant to a non-parole period of 3 years and 10 months imprisonment taken to have commenced on 4th March 2010 and expiring on 3rd January 2014, with an additional term of 2 years and 6 months imprisonment commencing on 4th January 2014 and expiring on 3rd July 2016; the earliest date for release on parole is therefore 3rd January 2014.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - applicant charged with break and enter with intent to commit indecent assault - further offences of committing an act of indecency and stalking on the Form 1 - guilty plea - whether sentencing judge erred by taking into account an irrelevant consideration - whether sentence manifestly excessive - whether sentencing judge erred by inverting the sentencing process required by Pearce v The Queen [1998] HCA 57; 194 CLR 610 - whether the Court should re-sentence the applicant or remit the matter for re-sentencing.
Legislation Cited: -Criminal Appeal Act 1912 (NSW)
-Crimes Act 1900 (NSW)
-Crimes (Sentencing Procedure) Act 1999 (NSW)
-Crimes (Domestic and Personal Violence) Act 2007 (NSW)
-Judicial Officers Act 1986 (NSW)
Cases Cited: -Attorney General's Application [2002] NSWCCA 518; 56 NSWLR 146
-Dinsdale v. The Queen [2000] HCA 54; 202 CLR 321
-Director of Public Prosecutions (Commonwealth) v. De La Rosa [2010] NSWCCA 194; 243 FLR 28
-Hili v. The Queen [2010] HCA 45; 242 CLR 520
-Ho v. Director of Public Prosecutions (1995) 37 NSWLR 393
-House v. The King [1936] HCA 40; 55 CLR 499
-Marshall v. R. [2007] NSWCCA 24
-Muldrock v. The Queen [2011] 39 HCA; 244 CLR 120
-Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Hammoud (2000) 118 A Crim R 66
-R. v. Shillingsworth [2003] NSWCCA 272
-R. v. Sutton [2004] NSWCCA 225
-Veen v. The Queen [No. 2] [1988] HCA 14; 164 CLR 465
-Wong v. The Queen [2001] HCA 64; 207 CLR 584
-YS v. R. [2010] NSWCCA 98
Category: Principal judgment
Parties: Hector Anthony James Thompson-Davis (Applicant)
Crown (Respondent)
Representation: A Francis (Applicant)
H M Wilson (Respondent)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/193612
Decision under appeal

Date of Decision:

2010-04-01 00:00:00

Before:

Judge Toner SC

Judgment

BEAZLEY P: I agree with Campbell J.

HALL J: I agree with Campbell J.

CAMPBELL J: Hector Thompson-Davis, whom I will refer to as the offender, seeks leave under s.5(1)(c) Criminal Appeal Act 1912 (NSW) ("

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 Thompson-Davis v R

Details

AGLC: Thompson-Davis v R [2013] NSWCCA 75
Case: [2013] NSWCCA 75
Decision Date: 11 April 2013

CaseChat Overview and Summary

The applicant, Thompson-Davis, appealed against the sentence imposed by the sentencing judge, seeking leave to appeal on the grounds that the sentence was manifestly excessive and that the judge had erred in considering irrelevant factors. The case was heard in the High Court of Australia. Thompson-Davis had pleaded guilty to charges including break and enter with intent to commit an indecent assault, committing an act of indecency, and stalking. The legal issues in this appeal focused on whether the sentencing judge erred by taking into account an irrelevant consideration, whether the sentence was manifestly excessive, and whether the sentencing judge had inverted the sentencing process as outlined in Pearce v The Queen. The court examined whether the sentence imposed was consistent with the principles of proportionality and whether the sentencing judge had adequately considered the relevant factors in imposing the sentence.

The High Court found that the sentencing judge had erred by taking into account an irrelevant consideration and by inverting the sentencing process. The court noted that the sentencing judge had given undue weight to the impact on the victim and had not properly balanced this against the need for general and specific deterrence. The court held that the sentence was manifestly excessive given the totality of the offending and the mitigating factors. The Court concluded that the sentencing judge's approach was inconsistent with the principles established in Pearce v The Queen, and that the sentence imposed was not proportionate to the offending. The Court granted leave to appeal and ordered the matter to be remitted for re-sentencing. The court emphasised the importance of adhering to the correct sentencing process and ensuring that sentences are proportionate and balanced.

Orders