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Thornton v The Queen

Thornton v The Queen

Case [2020] NSWCCA 257 7 October 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Thornton v R [2020] NSWCCA 257
Hearing dates: 30 September 2020
Date of orders: 30 September 2020
Decision date: 07 October 2020
Before: Hoeben CJ at CL at [1];
Beech-Jones J at [2];
N Adams J at [48].
Decision:
1.   Extend the time in which the Applicant may seek leave to appeal against sentence.
2.   Grant the Applicant leave to appeal.
3.   Appeal against sentence dismissed.

Catchwords:
CRIME – appeals – extension of time in which applicant may seek leave to appeal – appeal against sentence – dangerous driving occasioning grievous bodily harm – two victims – whether aggregate sentence manifestly excessive – notional accumulation – appeal dismissed

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lee v R [2020] NSWCCA 244
Kliendienst v R [2020] NSWCCA 98
R v AB [2011] NSWCCA 229
R v AB (No 2) [2011] NSWCCA 256
Stanyard v R [2013] NSWCCA 134

Category: Principal judgment
Parties: Jakob Thornton (Applicant)
Regina (Crown)
Representation:
Counsel:
I Nash (Applicant)
C Curtis (Crown)
Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2018/53258
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Thornton [2019] NSWDC 56

Date of Decision:

15 March 2019

Before:

Hatzistergos DCJ

File Number(s):

2018/53258

Judgment

HOEBEN CJ at CL: I agree with the judgment of Beech-Jones J and the reasons therein set out.
BEECH-JONES J: On 30 September 2020 this Court heard an application for an extension of time to seek leave to appeal against an aggregate sentence of imprisonment for 3 years and 8 months with a non‑parole period of 2 years imposed by his Honour Judge Hatzistergos on 15 March 2019 (R v Thornton [2019] NSWDC 56). The sentence was imposed as a consequence of the applicant pleading guilty to two offences of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900.
At the conclusion of argument the Court made the following orders:

Extend the time in which the Applicant may seek leave to appeal against sentence.
Grant the Applicant leave to appeal.
Appeal against sentence dismissed.
1. When making those orders, the Court stated that reasons would be provided at a later date. This judgment constitutes my reasons for joining in the orders made by the Court
2. As Hatzistergos DCJ imposed an aggregate sentence, his Honour was obliged at the time of sentencing to indicate to the offender the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence (Crimes (Sentencing Procedure) Act 1999; s 53A(2)(b); the “Sentencing Act”). Accordingly, his Honour indicated that the sentences that would have been imposed were 2 years and 1 month imprisonment for…

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 Thornton v The Queen

Details

AGLC: Thornton v The Queen [2020] NSWCCA 257
Case: [2020] NSWCCA 257
Decision Date: 07 October 2020

CaseChat Overview and Summary

In Thornton v The Queen, the appellant was convicted of dangerous driving occasioning grievous bodily harm, with two victims. The appellant sought leave to appeal against the sentence, arguing that the aggregate sentence was manifestly excessive. The High Court of Australia was tasked with determining whether the application for leave to appeal was time barred and whether the aggregate sentence was manifestly excessive. The primary issue was the legality of the appellant's application for leave to appeal being time barred. Additionally, the court had to decide whether the aggregate sentence imposed was manifestly excessive when considering the notional accumulation of sentences for each count of dangerous driving occasioning grievous bodily harm.

The court held that the application for leave to appeal was not time barred as the circumstances justified an extension of time. The court emphasised the importance of considering the unique circumstances of the case, which included the appellant's delay in seeking legal advice. Regarding the second issue, the court concluded that the aggregate sentence was not manifestly excessive. It was noted that the trial judge had taken into account the nature and circumstances of the offence, the appellant's culpability, and the need for general deterrence when imposing the sentence. The court found that the trial judge had appropriately exercised their discretion in determining the sentence.

The appeal was dismissed, and the original sentence was upheld. The court's decision highlighted the importance of considering the unique circumstances of each case when determining the timeliness of an application for leave to appeal and the appropriateness of the sentence imposed. The court found that the trial judge had exercised their discretion appropriately in this case, and the aggregate sentence was not manifestly excessive.

Orders