Thompson-Davis v R [2013] NSWCCA 75

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Thompson-Davis v R [2013] NSWCCA 75 Hearing dates: 24/7/2012 Decision date: 11 April 2013 Before: Beazley P at [1] Hall J at [2] Campbell J at [3] Decision: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed on the applicant by the District Court on 1st April 2010 and instead sentence the applicant to a non-parole period of 3 years and 10 months imprisonment taken to have commenced on 4th March 2010 and expiring on 3rd January 2014, with an additional term of 2 years and 6 months imprisonment commencing on 4th January 2014 and expiring on 3rd July 2016; the earliest date for release on parole is therefore 3rd January 2014. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - applicant charged with break and enter with intent to commit indecent assault - further offences of committing an act of indecency and stalking on the Form 1 - guilty plea - whether sentencing judge erred by taking into account an irrelevant consideration - whether sentence manifestly excessive - whether sentencing judge erred by inverting the sentencing process required by Pearce v The Queen [1998] HCA 57; 194 CLR 610 - whether the Court should re-sentence the applicant or remit the matter for re-sentencing. Legislation Cited: -Criminal Appeal Act 1912 (NSW) -Crimes Act 1900 (NSW) -Crimes (Sentencing Procedure) Act 1999 (NSW) -Crimes (Domestic and Personal Violence) Act 2007 (NSW) -Judicial Officers Act 1986 (NSW) Cases Cited: -Attorney General's Application [2002] NSWCCA 518; 56 NSWLR 146 -Dinsdale v. The Queen [2000] HCA 54; 202 CLR 321 -Director of Public Prosecutions (Commonwealth) v. De La Rosa [2010] NSWCCA 194; 243 FLR 28 -Hili v. The Queen [2010] HCA 45; 242 CLR 520 -Ho v. Director of Public Prosecutions (1995) 37 NSWLR 393 -House v. The King [1936] HCA 40; 55 CLR 499 -Marshall v. R. [2007] NSWCCA 24 -Muldrock v. The Queen [2011] 39 HCA; 244 CLR 120 -Pearce v The Queen [1998] HCA 57; 194 CLR 610 - R v Hammoud (2000) 118 A Crim R 66 -R. v. Shillingsworth [2003] NSWCCA 272 -R. v. Sutton [2004] NSWCCA 225 -Veen v. The Queen [No. 2] [1988] HCA 14; 164 CLR 465 -Wong v. The Queen [2001] HCA 64; 207 CLR 584 -YS v. R. [2010] NSWCCA 98 Category: Principal judgment Parties: Hector Anthony James Thompson-Davis (Applicant) Crown (Respondent) Representation: A Francis (Applicant) H M Wilson (Respondent) Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/193612 Decision under appeal Date of Decision: 2010-04-01 00:00:00 Before: Judge Toner SC