AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 11 April 2013

Thompson-Davis v R

[2013] NSWCCA 75

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW GUILTY PLEA WHETHER SENTENCE MANIFESTLY EXCESSIVE 194 CLR 610 WHETHER THE COURT SHOULD RE SENTENCING.

Citation: Thompson-Davis v R [2013] NSWCCA 75
Court: Court of Criminal Appeal, New South Wales
Date: 11 April 2013
Judges: Beazley P, Hall J, Campbell J (Campbell J writing)

Background

The applicant pleaded guilty in the District Court to one count of break and enter with intent to commit an indecent assault, contrary to s 112(2) of the Crimes Act 1900 (NSW). The offence involved breaking into a lone woman's home in the early hours of the morning and physically assaulting her before fleeing when she screamed. Two further offences were placed on a Form 1 to be taken into account at sentencing: an act of indecency committed against a different woman on a public street, and a stalking offence against another woman who the applicant followed while she walked near her home.

The applicant had been released on parole in March 2009, only weeks before committing these offences. His parole was revoked upon his arrest in late April 2009, and he returned to serving the balance of an earlier sentence for aggravated robbery imposed in 2005.

Judge Toner SC in the District Court initially sentenced the applicant on 4 March 2010, but re-opened proceedings under s 43(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) after both parties agreed the first sentence was unlawful. The re-sentence, delivered on 1 April 2010, imposed a total term of approximately seven years and six months with a non-parole period of five years, seven months and 24 days. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by taking into account an irrelevant consideration when re-setting the non-parole period on 1 April 2010.
  • Whether the sentence imposed was manifestly excessive.
  • Whether the sentencing judge inverted the proper sentencing process required by Pearce v The Queen (1998) 194 CLR 610, by treating the non-parole period as a fixed point and then calculating the balance of term, rather than fixing the total sentence first.
  • Whether the Court of Criminal Appeal should re-sentence the applicant directly or remit the matter to the District Court for re-sentencing.

Decision

The Court of Criminal Appeal, through Campbell J (with Beazley P and Hall J agreeing), upheld both grounds of appeal and granted leave. On the first ground, the Court found that the sentencing judge had made an error in the process used to set the non-parole period when re-sentencing on 1 April 2010. In particular, the Court found that the sentencing judge had inverted the proper approach required by Pearce v The Queen: rather than first fixing the appropriate total term of imprisonment and then determining the non-parole period as a proportion of that total, the judge had instead treated the non-parole period as the primary figure and derived the balance of term from it. That reversal of the Pearce process constituted a sentencing error.

On the second ground, the Court found the sentence was manifestly excessive. Campbell J undertook a detailed analysis of the objective seriousness of the offending, the applicant's subjective circumstances, the Form 1 matters, and the principle of totality. The Form 1 offences added to the overall seriousness of the sentencing exercise, but did not change the head sentence; they were properly reflected in other adjustments to the sentence. The Court noted that the applicant's guilty plea had been entered at the last available opportunity, attracting only a modest discount.

Having found a less severe sentence was warranted in law, the Court elected to re-sentence the applicant directly rather than remit the matter to the District Court. The Court imposed a non-parole period of three years and ten months (taken to have commenced on 4 March 2010) and an additional term of two years and six months. The approach gave partial accumulation on the applicant's pre-existing sentence for aggravated robbery, reflecting the separate criminality involved while engaging the principle of totality across the overall sentencing picture.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 1 April 2010 quashed.
  • Applicant re-sentenced to a non-parole period of 3 years and 10 months imprisonment, taken to have commenced on 4 March 2010 and expiring on 3 January 2014.
  • Additional term of 2 years and 6 months imprisonment, commencing 4 January 2014 and expiring 3 July 2016.
  • Earliest date for release on parole: 3 January 2014.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Pearce v The Queen requires a sentencing court to fix the appropriate total term first and then determine the non-parole period as a component of that whole. Treating the non-parole period as the primary calculation and working outward to the balance of term inverts that process and constitutes an error of principle.
  • A guilty plea entered at the last moment before a District Court hearing attracts only a limited discount from the sentence that would otherwise be imposed.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), Form 1 offences do not attract a separate sentence but do inform the overall assessment of the offending. Their presence increases the gravity of the sentencing task without mechanically adding to the head sentence.
  • Partial accumulation on a pre-existing sentence can be appropriate where a parolee reoffends: it acknowledges the separate criminality of the new offending while allowing the principle of totality to moderate the combined custodial burden.
  • Where the Court of Criminal Appeal concludes that a less severe sentence was warranted in law, it may re-sentence the offender directly under s 5 and s 12 of the Criminal Appeal Act 1912 (NSW) rather than remitting the matter, provided it has sufficient information before it to do so.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), ss 61N(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 43(2), 47(2)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Judicial Officers Act 1986 (NSW)

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- House v The King [1936] HCA 40; 55 CLR 499
- Attorney General's Application [2002] NSWCCA 518; 56 NSWLR 146
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
- R v Hammoud (2000) 118 A Crim R 66
- YS v R [2010] NSWCCA 98
- Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
- Marshall v R [2007] NSWCCA 24
- R v Shillingsworth [2003] NSWCCA 272
- R v Sutton [2004] NSWCCA 225