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Court of Criminal Appeal 15 May 2015

R v Thornton

[2015] NSWCCA 94

Assault & violence
SENTENCE APPEAL APPLICANT HAD POOR CRIMINAL RECORD CHALLENGE TO FINDING REJECTED NO ERROR SHOWN APPEAL DISMISSED.

Citation: R v Thornton [2015] NSWCCA 94
Court: Court of Criminal Appeal, New South Wales
Date: 15 May 2015
Judge(s): Hoeben CJ at CL, Hidden J, Beech-Jones J (judgment)

Background

The applicant pleaded guilty in the District Court to two counts arising from a series of assaults at a Penrith nightclub in the early hours of 12 March 2011. The first count, under s 33(1)(b) of the Crimes Act 1900 (NSW), charged him with inflicting grievous bodily harm with intent. The second count, under s 59 of the same Act, charged assault occasioning actual bodily harm. He had remained in custody since his arrest on 31 May 2011.

The agreed facts established that both assaults were unprovoked. The first victim was knocked unconscious by a single punch. The second victim, a friend who had gone to the foyer to make a phone call, was ambushed from behind and subjected to a sustained and vicious attack, resulting in complex facial fractures requiring surgery and the insertion of titanium plates and mesh.

At sentencing, the District Court imposed a fixed term of one year for the grievous bodily harm count, followed by a consecutive term of six years and four months for the assault occasioning actual bodily harm count. The total sentence was seven years and four months, with an effective non-parole period of five years. The applicant sought leave to appeal, requiring an extension of time, which the Court granted without opposition.

  • Whether the sentencing judge erred in finding the applicant had been affected by alcohol at the time of the offences
  • Whether the sentencing judge erred in fully accumulating the sentences for the two separate assault counts, rather than applying some degree of concurrency
  • Whether the totality principle was correctly applied when imposing fully consecutive sentences

Decision

On the first ground, the Court rejected the challenge to the sentencing judge's finding that the applicant was affected by alcohol at the time of the offences. The applicant's own expert psychologist, Ms Cullen, had found he was suffering from alcohol dependence at the relevant time, and the sentencing judge accepted that evidence. The Court found no error in the judge's reasoning on this point.

On the second and third grounds, the Court considered whether fully accumulating the two sentences was inconsistent with the principles in Pearce v R and Mill v R, which generally require a sentencing court to consider the totality of the sentence when imposing terms for multiple offences. The sentencing judge had expressly referred to the totality principle.

The Court concluded that the sentencing judge had most likely adopted the approach of setting each individual sentence at a relatively lenient level before aggregating them, which is a recognised (if not preferred) alternative to setting full individual terms and then adjusting for concurrency. This conclusion was supported by two observations: the judge expressly acknowledged totality, and the individual sentences appeared lenient given the serious and unprovoked nature of both assaults, the applicant's poor criminal record including prior violence, the absence of any finding of remorse, and guarded prospects of rehabilitation with an appreciable risk of reoffending.

The Court added that, even if ground 2 had been upheld, it would not have intervened. Under s 6(3) of the Criminal Appeal Act 1912, no lesser sentence for each offence or overall was warranted in law.

Orders Made

  • Extension of time to apply for leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may lawfully impose fully consecutive sentences for separate offences without error, provided it has genuinely considered the totality principle, whether by adjusting individual sentences downward before aggregating them or by some other explicit method.
  • The Court of Criminal Appeal confirmed that while the preferred approach under Johnson v R is to fix individual sentences first and then adjust for accumulation or concurrency, lowering each sentence before aggregating is a permissible alternative.
  • No error was established in the sentencing judge's finding that the applicant was affected by alcohol at the time of the offences, where that finding was consistent with expert evidence the judge had accepted.
  • In dismissing the appeal, the Court signalled that fully accumulated sentences may be appropriate where the offences are separate in time and victim, both are serious and unprovoked, and the offender's history and prospects weigh heavily against concurrency.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal retains the power to decline intervention even where a ground of appeal has been upheld, if no lesser sentence is warranted in law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- Mill v R [1988] HCA 70; 166 CLR 59
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Loveridge [2014] NSWCCA 120