Thompson v The Queen

In the case of Thompson v The Queen, the applicant, who was born in New Zealand, was convicted of importing a commercial quantity of cocaine into Australia. This conviction followed a previous trial where the applicant was found guilty but later successfully appealed. A new trial was ordered, and the sentence was discounted due to a plea. The applicant sought leave to appeal against the severity of the sentence imposed at the new trial. The legal issues in this case revolved around the principles of parity of sentencing and issue estoppel, as well as the applicability of the Convention on the Transfer of Sentenced Persons.

The court was required to determine whether the transfer of the applicant's co-offenders, who were of British origin, to their respective countries under the Convention constituted a ground for parity. Additionally, the court had to examine if issue estoppel applied to the reasoning of the appellate court and whether the finding regarding the applicant's criminality was open to the sentencing judge. The applicant argued that the circumstances of the co-offenders should be taken into account for the purpose of achieving parity of sentencing.

The court found that there was no issue estoppel in the reasoning of the appellate court, as the issue of parity of sentencing was not conclusively determined in the previous appeal. The court also held that the finding as to the applicant's criminality was open to the sentencing judge, as it was not precluded by any previous determination. Consequently, the court dismissed the application for leave to appeal against the severity of the sentence. The court's decision was based on the lack of issue estoppel and the sentencing judge's ability to consider the applicant's criminality in determining the appropriate sentence.