Thompson v The Queen

[2012] ACTCA 35

STEVEN JAMES THOMPSON v THE QUEEN
[2012] ACTCA 35 (3 August 2012)

APPEAL AND NEW TRIAL - appeal against sentence - failure to taken into account plea of guilty - appeal allowed.
CRIMINAL LAW - jurisdiction, practice and procedure – judgment and punishment – taking plea of guilty into account – failure to refer to plea of guilty – failure to refer to discount for plea of guilty – Crimes (Sentencing) Act 2005 (ACT) ss 33, 35.

Crimes Act 1900 (ACT), s 32a
Crimes (Sentencing) Act 2005 (ACT), ss 33, 35

R v Thompson (2000) 49 NSWLR 383

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 25 – 2011
No. SCC 397 of 2009                   

Judges:        Refshauge ACJ, Penfold and North JJ
Court of Appeal of the Australian Capital Territory
Date:           3 August 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 25 - 2011
  )          No. SCC 397 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

STEVEN JAMES THOMPSON

v

THE QUEEN

ORDER

Judges:  Refshauge ACJ, Penfold and North JJ
Date:  3 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed. 

1. The sentence be set aside. 

1. The appellant is sentenced to a period of imprisonment for six years and three months to commence on 3 April 2011, with a non-parole period commencing on that date for two years and eight months.

IN THE SUPREME COURT OF THE     )          No. ACTCA 25 - 2011
  )          No. SCC 397 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

STEVEN JAMES THOMPSON

v

THE QUEEN

Judges:  Refshauge ACJ, Penfold and North JJ
Date:  3 August 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 22 March 2011, Steven James Thompson pleaded guilty to a charge under s 32 of the Crimes Act 1900 (ACT), that on 12 September 2009 he demanded money of Andrew Falvey with a threat to inflict grievous bodily harm on Andrew Falvey. The offence carries a maximum of 20 years imprisonment.

1. Mr Falvey and his fiancée were at a fast food restaurant in Belconnen on 12 September 2009 and as they left that restaurant, they saw the co-accused standing next to a vehicle parked outside.  They had known each other and met on a number of occasions prior to that time.

1. The victim and his fiancée spoke to the co-accused and they then accepted an offer of a lift home by the co-accused, who instead drove them to a car park near some local shops.  The co-accused stopped the vehicle and demanded money from the victim and proceeded to do violence to the victim.  At that stage the appellant produced a knife and held it against the victim’s throat.  The knife had a dull silver, non-serrated blade and was approximately 20–30 centimetres long.

1. As he held the knife against the victim’s throat he said words to the effect of, “Give me all your money, cunt, give me all your money or I will fucking slit your throat.”  The victim attempted to grab the knife and as a result, his neck was cut by the knife causing it to bleed, although the cut was superficial.  The victim said that he did not have any money, but the co-accused got out of the vehicle, opened the door, dragged the victim from the vehicle, punched him in the face and caused his nose to bleed.

1. The victim’s fiancée gave the accused some money and the accused then said that he would not hurt the victim’s fiancée, as money had been handed over.  The victim managed to get away and attempted to make a 000 call, but was unable to tell the operator where they were.  There were certain further events, including certain threats made by the appellant, and then the appellant and his co-accused ran away.

1. The matter has a slightly chequered history, but came on for sentence on 10 June 2011.  We do not have the transcript of the submissions that were then made, if any, but we do have the material that was provided at that stage, including the appellant’s prior criminal history, which extends back for many years, including a number of violence offences, including serious violence offences.

1. The Chief Justice imposed sentence on 10 June 2011.  He noted that the appellant was the motivator behind the event, since it was his debt that was being enforced and that he was the one who produced the knife and held it to the victim’s throat, causing the injury.  He noted that the offence carried a maximum of 20 years imprisonment, but noted that there were some prospects for rehabilitation in respect of Mr Thompson, no doubt relying upon the Pre-Sentence Report.  He noted also that the sentence should be backdated to 3 April 2011, being the date on which the appellant was taken into custody.

1. His Honour did not, however, refer to the fact that the appellant had pleaded guilty. That is an important matter that needs to be addressed under both ss 33 and 35 of the Crimes (Sentencing) Act 2005 (ACT). A court is obliged to have regard to the plea of guilty. It is not the fact that the court must necessarily impose a lesser penalty as a result, but it must have regard to the plea.

1. In R v Thompson (2000) 49 NSWLR 383, Spigelman CJ said (at 395; [52]):

The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations. The position may not be the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations ...

1. The Crown has properly conceded that in the circumstances the one single challenge that now remains in the appeal has been made out, namely, that it cannot satisfy this Court that the plea of guilty has been taken into account.  Although the plea was entered at a late stage in the proceedings, it appears that the offence of which the appellant was charged was somewhat changed, and therefore some reasonable discount is available for the appellant. 

1. The appellant submits, through his counsel, that a discount of at least 10 percent would be appropriate in the circumstances.  We note that his Honour imposed a sentence of seven years imprisonment, with a non-parole period of three years.  The remarkably low non-parole period seems to have been influenced by the prospects of reform by the appellant that his Honour had recognised.

1. In our view, the appropriate sentence reduction is approximately 10 percent as submitted by the appellant and we would reduce the head sentence by nine months to six years and three months and the non-parole period by four months to two years and eight months.

1. The Court orders that the appeal be allowed, and that the sentence is set aside.  The appellant is sentenced to a period of imprisonment for six years and three months to commence on 3 April 2011, with a non-parole period commencing on that date for two years and eight months.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:  2012

Counsel for the Appellant:  Mr R Livingston
Solicitor for the Appellant:  Craig Lynch and Associates
Counsel for the Crown:  Mr S Drumgold
Solicitor for the Crown:  ACT Director of Public Prosecutions
Date of hearing:  3 August 2012
Date of judgment:  3 August 2012