Thorpe v The Queen - [2011] VSCA 346

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0131

BENJAMIN THORPE

THE QUEEN

and

S APCR 2010 0132

RACHAEL WARD

THE QUEEN

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JUDGES:	BUCHANAN and TATE JJA and SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2011
DATE OF ORDER:	11 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 346
JUDGMENT APPEALED FROM:	DPP v Thorpe & Anor (Unreported, County Court of Victoria, Judge Taft, 29 April 2010) (Thorpe) DPP v Thorpe & Anor (Unreported, County Court of Victoria, Judge Taft, 29 April 2010) (Ward)

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CRIMINAL LAW – Leave to appeal against sentence – Armed Robbery – Theft and Dishonesty Offences - Whether judge had proper regard to the principle of parity – No justifiable grievance – Leave refused – No point of principle.

CRIMINAL LAW – Leave to appeal against sentence – Armed Robbery – Theft and Dishonesty Offences – Whether judge had proper regard to principle of totality – Personal circumstances properly taken into account – No sentencing error – Leave refused – No point of principle.

CRIMINAL LAW – Leave to appeal against sentence – Fixing of parole period – Whether non-parole period appropriate – No sentencing error – Leave refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Thorpe	Mr G F Meredith	Greg Thomas Barrister & Solicitor
For the Appellant Ward	Mr J E McLoughlin	Pica Criminal Lawyers
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions (Ms A Renieris)

BUCHANAN JA:

I agree with Sifris AJA.

TATE JA:

I also agree with Sifris AJA.

SIFRIS AJA:

Introduction

On 29 April 2010, after a trial in the County Court at Melbourne, the applicants, Benjamin John Thorpe (‘Thorpe’) and Rachael Colleen Ward (‘Ward’) were found guilty of armed robbery (‘the armed robbery offence’).

On 5 March 2010, Thorpe pleaded guilty to three other counts comprising theft of jewellery, obtaining property by deception and handling stolen goods (‘the jewellery offences’).

Thorpe was sentenced to 5 years’ imprisonment in relation to the armed robbery offence and after cumulation, a further 6 months in relation to the jewellery offences.

Thorpe seeks leave to appeal against his sentence.[1]
[1]An application for leave to appeal against conviction was abandoned and dismissed on 2 September 2011.

Ward was sentenced to 4 years and 2 months’ imprisonment in relation to the armed robbery offence. The sentencing judge indicated that Ward would have received 5 years, the same sentence as Thorpe, but was entitled to a reduction in order to provide for substantial concurrency between the armed robbery and the jewellery offences.

In relation to the jewellery offences, Ward had previously pleaded guilty to four counts. Three of the four counts were the same as Thorpe’s. She was sentenced by his Honour Judge Murphy on 21 January 2009 to 18 months’ imprisonment with a 10 month non-parole period. The sentence included one other unrelated charge to which Ward pleaded guilty.

Ward had served her sentence in full…

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 The Queen

Details

AGLC: Thorpe v The Queen; Ward v The Queen [2011] VSCA 346
Case: [2011] VSCA 346
Decision Date: 11 November 2011

CaseChat Overview and Summary

In the case of Thorpe v The Queen, the appellant applied for special leave to appeal against his sentence, which was imposed following a conviction for armed robbery, theft, and dishonesty offences. The High Court was tasked with determining whether the judge had properly considered the principles of parity and totality in sentencing and whether the non-parole period was appropriate.

The appellant argued that the judge did not adequately consider the principle of parity when sentencing him for the armed robbery, theft, and dishonesty offences. He further contended that the judge failed to properly consider the principle of totality and his personal circumstances in determining the sentence. Additionally, the appellant challenged the appropriateness of the non-parole period imposed.

The Court found that the judge had properly considered the principle of parity and totality in sentencing the appellant. The Court also determined that the judge had taken into account the appellant's personal circumstances in determining the sentence. The Court further held that there was no error in the non-parole period imposed. As a result, the Court refused the appellant's application for special leave to appeal, finding that there was no point of principle of general importance.

The Court's decision in this case highlights the importance of considering the principles of parity and totality in sentencing, as well as the need to take into account the personal circumstances of the offender. Furthermore, the Court's refusal to grant leave to appeal in this case demonstrates the limited circumstances in which special leave will be granted.

Orders