Thompson v R [2007] NSWCCA 83 | Case summary

Court of Criminal Appeal (NSW)|2007-03-26|Before: Simpson J, Howie J, Hislop J, James J

The application for leave to appeal 31 I have above set out the applicant's encapsulation of the grounds of appeal. In the course of his lengthy written submissions the applicant set out or referred to significant and, indeed, extensive, factual matters. This includes reference to evidence he claims to have been given by him and others. The papers demonstrate that the applicant did not give evidence in the sentencing proceedings before Berman DCJ. The evidence to which he was referring was evidence that he gave in the trial before Dodd DCJ. This was not before Berman DCJ and cannot be used as part of the present proceedings. This Court must proceed to determine the application on the basis of the material that was before Berman DCJ. 32 In any event, the factual matters include references to evidence indicating when the applicant became aware of the nature of the criminal enterprise. Berman DCJ made appropriate findings of fact based upon the agreed statement of facts that had been put before him. Nothing has been advanced by way of challenge to those findings that could possibly succeed in establishing error of fact on the part of his Honour.

"discriminatory treatment/sentence" 33 I take this to be a ground raising issues of parity. The applicant put extensive written submissions concerning parity, including lengthy extracts from authority in this Court and the High Court. Much of this is, by reason of the applicant's lack of legal training, misdirected. 34 As I understand it, the nub of his argument in respect of parity concerns the transfers of Bateman and Bartle to Britain, where, it appears, parole arrangements are such that Bateman has derived, and Bartle might derive, a benefit in serving a lower proportion of the sentence in custody. 35 I am unable to see that this raises any issue of parity. Parity is concerned with sentencing like offenders to like punishments. Transfer of prisoners to other countries involves arrangements made between the Commonwealth of Australia and other countries. It is not a matter to which a sentencing judge can or should have regard. It is far removed from the sentencing process. Apart from anything else, whether or not one prisoner is to be transferred to serve a sentence in another country is something that will seldom, if ever, be known at the time of sentencing. Certainly, there was no reason for Berman DCJ to have been aware of what lay in the future for Bateman or Bartle. 36 There is no substance in this ground of appeal.

"issue estoppel" 37 As far as I can determine from the applicant's written submissions, the "issue" the subject of this ground of appeal concerns what the applicant knew, or more accurately, when the applicant knew of the proposed importation. In this respect he quoted from the judgment of Smart AJ in the appeal the subject of the judgment in R v Bartle and Others, where his Honour said: "The jury may not have been satisfied beyond reasonable doubt as to Thompson's knowledge that cocaine was to be or was being imported prior to the transhipment of the cocaine at sea." 38 That may have been so in relation to the trial; but it is not now the case, where the sentencing judge has been provided with an extensive agreed statement of facts and has made an available finding on the basis thereof. There is no "issue estoppel" in the observation made by Smart AJ. Indeed, the applicant wrote: "Thompson argues the determination of the NSWCCA Bartle v Orrs (sic) (2003) 329 at (839) quashing Thompson's conviction creating an estoppel in the accused's favour on that issue." 39 That paragraph incorporated the passage extracted above. Smart AJ made his observation in the context of determining that it would be inappropriate to apply the proviso to s6 of the Criminal Appeal Act 1912. It has no bearing upon the finding made by Berman DCJ. It does not represent or contain any concluded finding of fact, such as is necessary to amount to an issue estoppel.

"criminality issue/sentence" 40 I do not find it easy to understand the submissions advanced by the applicant in respect of this ground. However, they appear to be a detailed canvassing of factual matters concerning his role in the enterprise. Specifically, he appears to contend that he only became aware of the importation once he was at sea. This overlaps with the matters dealt with under Ground 1. As I have made plain already, the finding of the sentencing judge concerning the applicant's role in the enterprise was open to him and has not been shown in any way to have been incorrect. 41 Accordingly, this ground of the application, like the others, ought to be rejected. 42 I would grant leave to appeal but dismiss the appeal. 43 HOWIE J: I agree with Simpson J. 44 HISLOP J: I agree with Simpson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

R v Bartle and Others (2003] NSWCCA 329; 181 FLR 1 CASES CITED: R v Daley [2003] NSWCCA 109 R v Thompson: R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

Procedural history 6 The applicant was arrested at Patonga at 3.30 am on 1 February 2000. Also arrested at or about the same time were Garry William Bartle; Maximiliano Diez; Peter Daryl Fox; Sir Thomas Graham Fry; Thomas McCaffery; Roberto Angelo Roberti. Arrested separately, but also involved in the same enterprise, was Russell Douglas Bateman. 7 In 2001 the applicant, together with Bartle, Fry, Roberti, Diez, Fox and McCaffery was tried in the District Court before Dodd DCJ and a jury. The trial proceeded over seven months. All were convicted. On 26 October 2001, Dodd DCJ sentenced all seven. The applicant was sentenced to imprisonment for 24 years with a non-parole period of 16 years. Bateman pleaded guilty. He gave assistance to police by providing information and agreeing to give evidence in the prosecution of the other men. On 31 August 2000 he was sentenced by James J in the Supreme Court to imprisonment for 13 years with a non-parole period of eight and a half years. This sentence incorporated a discount of 50% on the sentence that would otherwise have been imposed, referable to subjective circumstances and the assistance provided, and, presumably, his plea of guilty. 8 All seven convicted after trial appealed to this Court against their convictions. On 3 December 2003 this Court upheld the appeals against convictions in respect of three of the men, including the applicant, and ordered a new trial. (R v Bartle and Others [2003] NSWCCA 329; 181 FLR 1) It is unnecessary to go into the reasons that led to this result. 9 The re-trial was fixed to commence in the District Court on 5 July 2004 before Berman DCJ. On that date the applicant entered a plea of guilty to the charge. (Subsequently, McCaffery also pleaded guilty, and Fox was convicted by a jury.) 10 On 11 February 2005 Berman DCJ sentenced the applicant in the terms set out above - imprisonment for 20 years and six months, with a non-parole period of 13 years, commencing on 1 February 2000. It will be observed that the sentence then imposed is less than that imposed by Dodd DCJ. The explanation for this lies in the applicant's plea of guilty: Berman DCJ allowed a reduction on sentence, purportedly in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.

Thompson v R

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