Thornton v The Queen - [2021] VSCA 325

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0225

COL THORNTON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2021, 22 November 2021
DATE OF JUDGMENT:	30 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 325
JUDGMENT APPEALED FROM:	[2020] VCC 1214 (Judge D Sexton)

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CRIMINAL LAW – Sentence – Applicant convicted of intentionally causing serious injury to and rape of fellow prisoner – Sentenced to 9 years, 6 months’ imprisonment with non-parole period of 6 years, 9 months – Whether judge failed to take into account delay – Whether judge relied upon an aggravating factor for which there was no factual foundation – Whether judge relied upon an uncharged offence as an aggravating circumstance – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P P Kounnas and Mr J Penny	Victorian Bar Duty Barristers’ Scheme
For the Respondent	Ms K Hamill	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KENNEDY JA:

Following a trial in the County Court of Victoria, the applicant was found guilty of one charge of intentionally causing serious injury and one charge of rape. His co-offender, Stephen Down (‘Down’), was convicted of one charge of recklessly causing serious injury, and one charge of rape.

After a plea that was presented on his behalf, the applicant was sentenced to a total effective term of nine years and six months’ imprisonment, with a non-parole period of six years and nine months,[1] constituted as follows:
[1]DPP v Thornton [2020] VCC 1214 (‘Sentencing Reasons’).

Charge Offence Maximum Sentence Cumulation

1 Causing serious injury intentionally, s 16 Crimes Act 1958 20 years 6 years 2 years

3 Rape, s 38(1) Crimes Act 1958 25 years 7 years and 6 months Base

Total Effective Sentence: 9 years and 6 months’ imprisonment

Non-Parole Period: 6 years and 9 months’ imprisonment

Pre-Sentence detention 295 days

The applicant seeks leave to appeal against the sentence on the following proposed grounds:

Ground 1:The sentencing discretion miscarried as a result of delay not being taken into account as a matter of mitigation.
Ground 2:The learned sentencing judge erred in sentencing on the basis that failure to use a condom reflected a complete disregard for the physical welfare of Mr Duncan in terms of the possibility of sexually transmitted disease.
Ground 3:The learned sentencing judge erred in aggravating the sentence imposed by reference to an aggravated burglary with which the applicant had not been charged or convicted.
Ground 4:The sentences imposed on charges 1, 3, the order for cumulation, the total effective sentence and non-parole period are all manifestly excessive.

Save for making an order which corrected the pre-sentence detention declaration, leave to appeal was refused by Kaye JA on 3 March 2021.[2] His Honour’s reasons will be referred to as the ‘Leave Reasons’.
[2]Thornton v The Queen [2021] VSCA 39. Kaye JA noted that the declaration…

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 [2021] VSCA 325
Case: [2021] VSCA 325
Decision Date: 30 November 2021

CaseChat Overview and Summary

The applicant, Thornton, appealed against his sentence, arguing that the primary judge failed to consider the delay in bringing the case to trial, misapplied aggravating factors, and improperly considered an uncharged offence. Thornton was convicted of intentionally causing serious injury to and raping another prisoner. He was sentenced to 9 years and 6 months’ imprisonment, with a non-parole period of 6 years and 9 months. The Court of Appeal considered whether the sentencing judge adequately took into account the delay in trial, whether the aggravating factors relied upon had a factual foundation, and if the consideration of an uncharged offence as an aggravating circumstance was appropriate.

The legal issues before the court were whether the judge appropriately assessed the delay in bringing the case to trial, whether the aggravating factors had sufficient factual basis, and if the uncharged offence was correctly considered as an aggravating circumstance. Additionally, the court examined whether the sentence was manifestly excessive.

The Court of Appeal found that the judge did consider the delay, albeit briefly, and that the delay did not warrant a reduction in sentence. The court also found that the aggravating factors were supported by the evidence, and the consideration of the uncharged offence was not an error as it was relevant to the character of the offender. The court concluded that the sentence was not manifestly excessive, given the severity of the offences committed. Consequently, the appeal was dismissed, and leave to appeal to a higher court was refused.

Orders