R v THOMPSON [2007] NSWCCA 233

New South Wales Court of Criminal Appeal

CITATION: R v THOMPSON [2007] NSWCCA 233

HEARING DATE(S): 5 April 2007

JUDGMENT DATE: 3 August 2007

JUDGMENT OF: Handley AJA at 1; Hulme J at 2; Hall J at 51

DECISION: See paragraph 50

PARTIES: Regina Luke Edward THOMPSON

FILE NUMBER(S): CCA 2006/2633

COUNSEL: Crown: Mr R Herps Respondent: Mr A Cook

SOLICITORS: Crown: S Kavanagh Respondent: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0024

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

- 1 - IN THE COURT OF CRIMINAL APPEAL 2006/2633

HANDLEY AJA HULME J HALL J Friday, 3 August 2007

R v Luke Edward THOMPSON Judgment 1 HANDLEY AJA: I agree with Hulme J. 2 HULME J: On 3 June 2005 the Respondent, in company with another man, entered the Caltex service station at Coonabarabran at about 9pm. An employee of the service station, a Franz Ludiwig came to the counter. As he did so, the two men started shouting "Give me the money". Ludiwig pushed one of the men who was on the counter and said, "Get out of it". Ludiwig then noticed that the other male had a knife in his hand. That person pointed the knife at Ludiwig and demanded the money. The male who had tried to climb over the counter leaned over and punched the left side of Ludidwig's face, causing a wound which the sentencing judge described as "superficial". Ludiwig moved away from the console area. The males took the tray of cash out of the till and carried it away, scattering some contents en route. Later checking revealed that about $569.00 had been taken. 3 The Respondent was arrested on 10 June 2005. While at the police station and after he had been charged, he escaped from custody. During the course of the police pursuit further offences which came to be included on a Certificate under s166 of the Criminal Procedure Act were committed. Those of present relevance are assaulting an officer in the execution of duty, 2 of resisting an officer in the execution of duty, and escaping from lawful custody. 4 In furtherance of his escape, the Respondent entered a motor vehicle pushing the driver out in an endeavour to decamp. However, the Respondent was unable to start the vehicle, was confronted by police and again arrested. 5 The Respondent was charged with robbery with wounding and what may conveniently be referred to as car-jacking. He pleaded not guilty but on 15 March 2006 a jury convicted him of both. At some stage he pleaded guilty to the offences on the s166 certificate to which I have referred. Other offences on that certificate were remitted to the Local Court. 6 On 23 June 2006 a sentence hearing was conducted before Judge O'Connor QC and on 15 September 2006 his Honour sentenced the Respondent. The sentences imposed were:- 1. For the offence of car-jacking, imprisonment for a non-parole period of 18 months commencing on 10 June 2005 with a balance of term of 18 months. 2. In respect of each of the offences of assaulting an officer in the execution of duty, the 2 offences of resisting an officer in the execution of duty and escaping from lawful custody, imprisonment for 6 months from 16 March 2006; and 3. In respect of robbery with wounding, imprisonment for a non parole period of 2 years commencing on 10 December 2006 with a balance of term of 2 years. 7 Thus the effective sentence was one of 5½ years, including a non-parole period of 3 years. The sentences imposed in respect of the second group of offences were effectively subsumed with the sentence on the car-jacking charge. The sentence on the robbery with wounding charge was entirely cumulative to the non-parole period imposed for car-jacking.