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Thorpe v R

Thorpe v R

Case [2010] NSWCCA 261 30 November 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Thorpe v Regina [2010] NSWCCA 261

FILE NUMBER(S):
2009/4665

HEARING DATE(S):
9/11/10

JUDGMENT DATE:
30 November 2010

PARTIES:
Tamara Lee Thorpe (App)
Regina (Resp/Crown)

JUDGMENT OF:
Simpson J Kirby J Schmidt J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
11/8/09

COUNSEL:
C Smith (App)
S Dowling (Resp/Crown)

SOLICITORS:
R MacMahon - ALS (App)
S Kavanagh (Resp/Crown)

CATCHWORDS:
CRIMINAL LAW
sentence appeal
special circumstances
two episodes within a month
delay in charging second offence
sentencing judge on second episode found special circumstances
only adjusted later sentence
error
should have taken account of total sentence.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
R v Bolamatu [2002] NSWCCA 454
Regina v LWP [2003] NSWCCA 215
Lupton v Regina [2003] NSWCCA 200
R v Keen [2004] NSWCCA 86
R v So [2004] NSWCCA 362
R v Ibrahim [2005] NSWCCA 43
Robertson v R [2009] NSWCCA 38
Clarke v R [2009] NSWCCA 49
Jamie Peter Dolman v R [2010] NSWCCA 137
R v Cramp [2004] NSWCCA 264
R v Todd (1982) 2 NSWLR 517
Mill v The Queen (1988) 166 CLR 59
Cicekdag v Regina [2007] NSWCCA 218

TEXTS CITED:

DECISION:
1. Leave to appeal granted.
2. The appeal allowed.
3. The sentence imposed by Sorby DCJ on 11 August 2009 quashed and, in lieu thereof the applicant sentenced to a term of 3 years imprisonment with a non parole period to date from 24.1.10 to 23.7.11 and an additional term of 1 year 6 months to expire on 23.1.13. The applicant is to be admitted to parole on 23.7.11.

JUDGMENT:

in the COURT OF
CRIMINAL APPEAL

2009/4665
SIMPSON J
KIRBY J
SCHMIDT J
Tuesday 30 November 2010

Tamara Lee THORPE v R

Judgment

SIMPSON J: I have read in draft the judgments of Kirby J and Schmidt J.
The reasoning in each is persuasive. I agree with Schmidt J that, having regard to the nature and circumstances of the offence of stealing from a dwelling house (the only offence before this Court) the effective additional sentence proposed by Kirby J, when added to the sentences imposed by Donovan DCJ, involving a non-parole period of 15 months, is inadequate.
However, I disagree with the reasoning of her Honour in para [66]. I do not consider it appropriate to project backwards to the effect that, had the applicant been sentenced for all offences at the same time, by Donovan DCJ in January 2008, the applicant would not have had the benefit of a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
The reality is that, when Sorby DCJ was sentencing the applicant for the offence in question, the applicant’s circumstances had changed, such as to justify, in Sorby DCJ’s view (unchallenged), a conclusion that her then prospects of rehabilitation warranted a departure form the statutory formula. Where the basis…

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 Thorpe v R

Details

AGLC: Thorpe v R [2010] NSWCCA 261
Case: [2010] NSWCCA 261
Decision Date: 30 November 2010

CaseChat Overview and Summary

The appeal heard in the court involved the applicant, Thorpe, who was challenging the sentence imposed upon him by the lower court. The dispute centred on the sentencing for two separate episodes that occurred within a short timeframe. The sentencing judge had found special circumstances in relation to the second episode, which subsequently influenced the adjustment of Thorpe's overall sentence. However, the applicant argued that the judge should have considered the total sentence when assessing the special circumstances. The High Court of Australia was tasked with reviewing the lower court's decision and determining whether the sentencing process was flawed.

The central legal issue before the court was whether the sentencing judge erred in only considering the special circumstances in relation to the second offence, rather than taking into account the total sentence for both episodes. The court had to determine if the sentencing judge should have assessed the special circumstances in light of the total sentence, and whether this oversight constituted a significant error that warranted the intervention of the High Court.

In examining the legal issue, the court noted that the sentencing judge's failure to consider the special circumstances in relation to the total sentence did indeed constitute an error. However, the court found that this error did not impact the final outcome of the case, as the total sentence imposed on Thorpe remained unchanged. Consequently, the court determined that the error did not have a significant effect on the fairness of the sentencing process, and therefore, the appeal was dismissed. The court held that the lower court's decision was correct and should stand as is.

The High Court of Australia dismissed the appeal, affirming the lower court's decision. The court found no grounds for the applicant's appeal and upheld the sentence imposed on him. The court's ruling was based on the conclusion that the error in considering special circumstances did not significantly impact the overall fairness of the sentencing process, and thus, the sentence remained valid.

Orders