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Thompson v The Queen

Thompson v The Queen

Case [2022] VSCA 67 13 April 2022

Sentencing

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0161

SARAH THOMPSON	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 67
JUDGMENT APPEALED FROM:	[2021] VCC 1274 (Judge Carmody)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Parity – Lack of disparity – Applicant and co-offender receiving same sentences, where co-offender had more extensive criminal history and was on bail at time of offending – Co-offender having background of significant disadvantage – Complaint of lack of disparity not reasonably arguable – Lenient sentences in any event – Application for leave to appeal refused.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Valos Black & Associates
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant, together with her co-offender, Nathan Robertson-Ainsworth, pleaded guilty in the County Court to one charge of aggravated burglary and four charges of theft (charges 2 to 7 on Indictment C2013360). At the same time, Robertson-Ainsworth pleaded guilty to an additional charge of theft (charge 1 on the indictment) together with a number of related summary offences. A joint plea hearing was conducted on 30 August 2021.

On 2 September 2021, the judge sentenced the applicant as follows:

Charge

Offence

Maximum

Sentence

Cumulation

2

Aggravated burglary, s 77 Crimes Act 1958

25 years

4 years

Base

3

Theft, s 74 Crimes Act 1958

10 years

6 months

3 months

4

Theft, s 74 Crimes Act 1958

10 years

30 days

7 days

5

Theft, s 74 Crimes Act 1958

10 years

30 days

7 days

6

Theft, s 74 Crimes Act 1958

10 years

30 days

14 days

7

Theft, s 74 Crimes Act 1958

10 years

$200

–

Total Effective Sentence:

4 years 4 months

Non-Parole Period:

2 years 9 months

Pre-Sentence Detention:

572 days

Section 6AAA Statement:

6 years 6 months, with a non-parole period of 4 years 6 months

On the same day, the judge sentenced Robertson-Ainsworth as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1

Theft, s 74 Crimes Act 1958

10 years

$200

–

2

Aggravated burglary, s 77 Crimes Act 1958

25 years

4 years

Base

3

Theft, s 74 Crimes Act 1958

10 years

6 months

3 months

4

Theft, s 74 Crimes Act 1958

10 years

30 days

7 days

5

Theft, s 74 Crimes Act 1958

10 years

30 days

7 days

6

Theft, s 74 Crimes Act 1958

10 years

30 days

14 days

7

Theft, s 74 Crimes Act 1958

10 years

$200

–

RSO 2

Refuse sample of oral fluid, s 49(3AAA) Road Safety Act 1986

120 penalty units

Aggregate fine $500

–

RSO 3

Use unregistered vehicle — highway, s 7(3)(a)(ii) Road Safety Act 1986

50 penalty units

Aggregate fine $500

–

RSO 4

Unlawful assault, s 23 Summary Offences Act 1966

3 months or…

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 v The Queen

Details

AGLC: Thompson v The Queen [2022] VSCA 67
Case: [2022] VSCA 67
Decision Date: 13 April 2022

CaseChat Overview and Summary

Thompson sought leave to appeal against his sentence, arguing that there was insufficient disparity between his sentence and that of his co-offender, despite the co-offender having a more extensive criminal history and being on bail at the time of the offending. The co-offender also had a background of significant disadvantage. The High Court was tasked with determining whether the application for leave to appeal against sentence had merit, specifically focusing on the principle of parity and the adequacy of the sentences imposed.

The court examined whether the complaint of lack of disparity was reasonably arguable. It considered the totality of the circumstances, including the co-offender's more extensive criminal history and background of significant disadvantage, which had been taken into account by the sentencing judge. The court also noted that both Thompson and his co-offender received lenient sentences, which were appropriate given the circumstances of the case. The principle of parity does not demand absolute equality in sentencing, but rather a proportionality that takes into account all relevant factors. Given these considerations, the court found that the complaint of lack of disparity was not reasonably arguable.

Consequently, the court held that the application for leave to appeal against sentence did not have merit, as the sentences were proportionate and took into account the relevant circumstances of both Thompson and his co-offender. The court dismissed the application for leave to appeal.

Orders