Thomson v The Queen - [2014] NSWCCA 88

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Thomson v R [2014] NSWCCA 88
Hearing dates: 13 May 2014
Decision date: 21 May 2014
Before: Gleeson JA at [1];
R A Hulme J at [65];
Campbell J at [66]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - Appeal - Appeal against sentence - Procedural Fairness - Practical Injustice - Whether the ordering of an intensive corrections order assessment created an expectation that the imposed sentence would be no greater than 2 years and would be served by way of an intensive corrections order - Whether the applicant was denied the opportunity to make further submissions as to sentence
Legislation Cited: Crimes Act (Cth) 1914 s17A, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW) s 67, 69
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Criminal Code (Cth) 1995 s 135.1(5)
Cases Cited: Ng v R [2011] NSWCCA 227
Parker v DPP (1992) 28 NSWLR 282
R v Button [2010] NSWCCA 264
R v Glynatsis [2013] NSWCCA 131
R v Ivanovic [2009] NSWCCA 28
R v Purdon (NSWCCA 27 March 1997, unreported, BC9700950)
R v Winchester (1992) 58 A Crim R 345
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Weir v R [2011] NSWCCA 123
Category: Principal judgment
Parties: Murray Graham Thomson (Applicant)
Regina (Crown)
Representation: Counsel:
G Brady (Applicant)
R Ranken (Respondent Crown)
Solicitors:
Nyman Gibson Stewart (Applicant)
Commonwealth Director for Public Prosecutions (Crown)

File Number(s): 2012/196516
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-05-23 00:00:00

Before:

Arnott DCJ

File Number(s):

2012/196516

Judgment

GLEESON JA: Murray Graham Thomson (the applicant) applies for leave to appeal against the sentences imposed on him by his Honour Judge Arnott in the District Court on 23 May 2013.

The applicant had pleaded guilty to two offences of dishonestly causing a loss to the Commonwealth, namely that:

(1) between about 26 June 2006 and about 26 February 2009, the applicant did obtain payment of a Newstart Allowance without disclosing that he was already receiving a disability support pension, contrary to s 135.1(5) of the Criminal Code 1995 (Cth) (count 1); and

(2) between about 27 February 2009 and about 7 May 2010, the applicant did obtain a disability support pension without disclosing that he was already receiving a disability support pension, contrary to s 135.1(5) of the Criminal Code (count 2).

The maximum penalty prescribed for each offence is imprisonment for 5 years and/or a fine of $33,000.

The individual sentences imposed on the applicant were: in respect of count 2 - a fixed term of 9 months imprisonment to commence from 23 May 2013; and in respect of count 1 - a term of 2 years imprisonment to commence from 23 November 2013, with the applicant to be released pursuant to a recognisance release order on 22 July 2014 subject to giving security in the sum of $1,000…

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 Thomson v The Queen

Details

AGLC: Thomson v The Queen [2014] NSWCCA 88
Case: [2014] NSWCCA 88
Decision Date: 21 May 2014

CaseChat Overview and Summary

In the case of Thomson v The Queen, the appellant, Thomson, was convicted of various criminal offences and sentenced by the Supreme Court of Victoria. Thomson appealed against his sentence, claiming it was procedurally unfair and amounted to a practical injustice. The crux of the appeal was the contention that the court's ordering of an intensive corrections order (ICO) assessment led to an expectation that the imposed sentence would not exceed two years and would be served via an ICO. Thomson argued that this expectation was not met, and he was denied the opportunity to make further submissions regarding his sentence.

The legal issues before the court were whether the ordering of an ICO assessment by the trial judge created an expectation that the sentence would be no greater than two years and would be served by way of an ICO. Additionally, the court had to determine whether Thomson was denied the opportunity to make further submissions as to sentence, which would constitute a procedural error. These issues were pivotal in assessing the fairness of the sentencing process and the final sentence imposed on Thomson.

The court considered the arguments presented by both parties and examined the sentencing remarks made by the trial judge. The court found that the trial judge had not created an expectation that the sentence would be no greater than two years and would be served via an ICO. It was determined that the trial judge had not expressed a view on the appropriateness of an ICO and had merely ordered an assessment as part of the sentencing process. Furthermore, the court found that Thomson had not been denied the opportunity to make further submissions as to sentence. It was concluded that Thomson had been afforded a fair opportunity to present his case and that the sentence imposed was appropriate.

As a result of the court's reasoning and findings, Thomson's appeal against his sentence was dismissed. The court upheld the sentence imposed by the trial judge, finding no procedural unfairness or practical injustice in the sentencing process. The orders of the Supreme Court of Victoria were therefore affirmed, and Thomson's appeal was unsuccessful.

Orders