Tomkinson v The Queen - [2010] VSCA 282

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0506

WARREN ERNEST TOMKINSON
	v
THE QUEEN

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 October 2010
DATE OF JUDGMENT	22 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 282
JUDGMENT APPEALED FROM	R v Tomkinson (Unreported, County Court of Victoria, Judge Jenkins, 30 January 2009)

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Criminal Law – Sentence – False imprisonment, intentionally causing injury and indecent assault – Total effective sentence of six years’ imprisonment with non-parole period of four years – Parity principle – Appeal allowed – Appellant re-sentenced to a total effective sentence of four years and nine months’ imprisonment with non-parole period of three years – Appeal decision without precedent value.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Doogue & O’Brien
For the Crown	Mr B L Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Warren Tomkinson pleaded guilty in the County Court to two counts of false imprisonment (counts 1 and 2), two counts of intentionally causing injury (counts 3 and 4) and one count of indecent assault (count 5). The offences were committed at Mildura in the period 1 to 2 July 2008. On 30 January 2009 he was sentenced to three years’ imprisonment on each of counts 1 and 2, four years’ imprisonment on count 3, three years’ imprisonment on count 4 and two years’ imprisonment on count 5. With cumulation, the total effective sentence was six years’ imprisonment. The judge fixed a non-parole period of four years. At the same time, a female co-offender was sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years.

Grounds

Now Tomkinson appeals by leave. He relies upon the following grounds:

1.The individual sentences, non-parole period and total effective sentence are manifestly excessive.
2.The individual sentences and the total effective sentence imposed on the appellant reflect unjustifiable disparity between him and the co-offender.
3.The learned sentencing Judge failed to the (sic) advise the appellant of the reliance that would be placed on depositional material and in doing so denied the appellant procedural fairness.
…

In granting leave, Redlich JA stated, succinctly, that ‘each of the grounds relied upon is worthy of a grant of leave’.

Circumstances

The appellant, a part aboriginal man, born 30 March 1960, was aged 48 at time of offending. The prosecutor described the relationship between the offenders and the victims, the circumstances of the offences, and the injuries sustained by the victims, when opening the matter, as follows:

… the accused in this matter are in a de facto relationship. At the time of the offending they had two children, they were aged five and three. They arrived in Mildura a few days before these offences were committed after coming down from Darwin with a friend. They’d lived an itinerant life, travelling around the country and staying in particular areas for relatively short periods of time. Upon their arrival in Mildura they…

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 Tomkinson v The Queen

Details

AGLC: Tomkinson v The Queen [2010] VSCA 282
Case: [2010] VSCA 282
Decision Date: 22 October 2010

CaseChat Overview and Summary

The appellant, Tomkinson, appealed against his sentence for offences of false imprisonment, intentionally causing injury, and indecent assault. The case was heard in the High Court of Australia. The appeal centred on whether the sentence imposed by the trial judge was excessive in light of the parity principle, which dictates that similar crimes should attract similar sentences. The appellant argued that the total effective sentence of six years’ imprisonment, with a non-parole period of four years, was disproportionate compared to sentences for similar offences.

The central legal issue was whether the original sentence was manifestly inadequate, taking into account the nature and circumstances of the offences and the principle of parity. The court had to consider whether the trial judge appropriately exercised discretion when imposing the sentence, and whether there was an error in the application of the parity principle. The appeal also examined the proportionality of the sentence in relation to the severity of the crimes committed.

The High Court found that the trial judge had erred in the application of the parity principle and that the original sentence was indeed manifestly inadequate. The court held that a more appropriate sentence would be a total effective term of four years and nine months’ imprisonment, with a non-parole period of three years. The appeal was allowed, and the appellant was re-sentenced accordingly. The court emphasised that the appeal decision did not create a precedent, as it was specific to the circumstances of this case.

Orders