AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 17 November 2017

R v Thomas

[2017] NSWSC 1542

Public order & justice offences

Citation: R v Thomas [2017] NSWSC 1542
Court: Supreme Court of New South Wales
Date: 17 November 2017
Judge(s): Harrison J

Background

The accused purchased a Hyundai station wagon in March 2015. That vehicle was later connected to a serious incident in South Windsor on 31 March 2015, after which a man named Brendan Vollmost disappeared and has not been seen since. The Crown did not allege that the accused was involved in that incident or had any knowledge of it.

In April 2015, the accused attended a meeting in a park where he was urged to tell police the car had been stolen. He agreed, and the following day gave a statement to police that was partially false, claiming the vehicle had been taken on 24 March 2015. That false account formed the basis of a charge of hindering the investigation of a serious indictable offence under section 315(1)(a) of the Crimes Act 1900.

The accused was also charged with being an accessory after the fact to the murder of the missing man under section 349(1) of the Crimes Act. He refused to be interviewed, maintained a plea of not guilty to that charge, and spent over six months on remand before being granted bail. The Crown ultimately accepted his guilty plea to the hindering charge in full satisfaction of both counts on the indictment.

Legal Issues

  • What sentence was appropriate for the section 315(1)(a) offence of hindering a police investigation?
  • Whether a conviction-only outcome under section 10A of the Crimes (Sentencing Procedure) Act 1999 was appropriate in the circumstances.
  • Whether the court had jurisdiction to grant a costs certificate under the Costs in Criminal Cases Act 1967 where the accused was discharged on the primary (murder accessory) count but pleaded guilty to an alternative count.
  • Whether it would have been reasonable, had the prosecution held all relevant evidence before proceedings were instituted, to bring the section 349(1) accessory after the fact charge.

Decision

Issue 1: Sentencing for the hindering offence

Harrison J found the offence fell at the very lowest level of seriousness for its kind (at [11]). The accused had committed it out of misguided loyalty or a sense of obligation rather than personal gain, and had good prospects for rehabilitation (at [16]). His Honour found that neither special nor general deterrence was appropriate given the time already spent in custody on remand for a charge to which the accused had always pleaded not guilty (at [17]).

Issue 2: Conviction without further penalty under section 10A

Harrison J noted that the recording of a conviction is itself a not insignificant penalty, observing that the language of section 10A, which permits disposal without "any other penalty," implicitly treats conviction as a form of penalty in its own right (at [19]). Proceeding by way of conviction alone was considered appropriate in all the circumstances.

Issue 3: Jurisdiction to grant a costs certificate

The Crown argued that the Costs in Criminal Cases Act 1967 was not intended to apply where an alternative count resulted in a guilty plea upon the discharge of the accused on what it characterised as the primary count. Harrison J rejected that submission. His Honour held that the Act contains nothing to limit its operation to cases where all charges result in acquittal or discharge, and that the statutory touchstone is the reasonableness of commencing proceedings having regard to available evidence (at [33]). The Crown conceded that the accused had been "discharged" within the meaning of section 2(1) of the Act (at [27]).

Issue 4: Reasonableness of instituting the section 349(1) proceedings

Harrison J found that the prosecution held all relevant evidence by no later than 10 April 2015, comprising the listening device transcript of the park meeting (Transcript B) and the accused's police statement (at [31]). A fair reading of Transcript B showed nothing capable of implicating the accused in receiving, harbouring, maintaining or assisting anyone, which would be required for the accessory after the fact charge. It did, however, support the hindering charge (at [31]). Accordingly, Harrison J found it would not have been reasonable to institute the section 349(1) proceedings, and described the accused's discharge on that count as approaching an inevitability (at [32]).

Orders Made

  • The accused was convicted of hindering the investigation of a serious indictable offence contrary to section 315(1)(a) of the Crimes Act 1900.
  • Pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999, the proceedings were disposed of without the imposition of any other penalty.
  • A certificate was granted under section 2 of the Costs in Criminal Cases Act 1967 specifying: (a) that if the prosecution had, before proceedings were instituted, been in possession of evidence of all relevant facts, it would not have been reasonable to institute the proceedings; and (b) that any act or omission of the accused that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Key Takeaways

  • A conviction recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999 is itself treated as a form of penalty, given the Act's reference to proceeding without "any other penalty," and may be appropriate where an offence falls at the lowest end of seriousness and significant remand time has already been served on a separate, unproven charge (at [19]).

  • The Costs in Criminal Cases Act 1967 is not confined to cases where an accused is wholly discharged or acquitted. Harrison J held that nothing in the Act limits its operation to circumstances where none of the charges result in conviction, provided the statutory test of reasonableness is met on the specific count for which discharge occurs (at [33]).

  • Where the prosecution held all relevant evidence before proceedings were instituted, the court will assess the reasonableness of bringing a particular charge by reference to what that evidence actually showed, not merely by reference to the fact that related charges were ultimately sustained (at [31]-[32]).

  • Laying multiple charges arising from related events for what may appear to be tactical reasons does not immunise the prosecution from potential adverse costs consequences if the evidence available from the outset did not reasonably support one of those charges (at [33]).

  • Under section 3(1)(a) of the Costs in Criminal Cases Act 1967, the onus rests on the accused to demonstrate that it would not have been reasonable to institute the proceedings, with "institution of proceedings" referring to the time of arrest or charge: Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 (at [23], [26]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986

Cases
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550; (1991) 53 A Crim R 33
- JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228
- Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Mauger [2012] NSWCCA 51
- Solomons v District Court (NSW) (2002) 211 CLR 119