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District Court 12 November 2021

R v Thomas

[2021] NSWDC 839

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME RELEVANT FACTORS ON SENTENCE SERIOUS DOMESTIC VIOLENCE OFFENCES EARLY GUILTY PLEA FORM 1 MATTER DEPRIVED BACKGROUND

Citation: R v Thomas [2021] NSWDC 839
Court: District Court of New South Wales
Date: 12 November 2021
Judge: Haesler SC DCJ

Background

The offender, a young man born in 1997, had a prior history of domestic violence matters in the Local Court relating to his former partner and the mother of his child. Apprehended Domestic Violence Orders (AVDOs) had been made to protect the complainant, and a supervised parenting plan was in place to allow him continued contact with their child. He had previously engaged with a Koori men's support group in an attempt to address his behaviour.

On 8 January 2021, the offender attended the complainant's home at Albion Park Rail for a supervised visit, but the supervisor was absent. The following afternoon, a prolonged and violent incident unfolded during an argument about the offender's drug use and the relationship. In the presence of their 17-month-old child, the offender held a kitchen knife to the complainant's throat, dragged and punched her, choked her twice with both hands (causing her to vomit), and then forced her into a car and drove at high speed while continuing to punch her. At one point he told his sister-in-law by phone that he intended to take the complainant to the bush and kill her.

The complainant was taken to Shellharbour Hospital with significant injuries, including swelling, lacerations, abrasions, and bruising across her face and body. A sound recording captured part of the incident. The offender was arrested on 20 January 2021 and subsequently pleaded guilty to all charges.

  • What aggregate sentence was appropriate for the offence of aggravated take/detain a person with intent to obtain advantage (s 86(2)(b) Crimes Act 1900), taking into account a Form 1 matter of being armed with intent to commit an indictable offence?
  • What sentence was appropriate for intentionally choking a person so as to render them incapable of resistance under s 37(1) of the Crimes Act 1900?
  • What weight should be given to the offender's background, including his deprived upbringing, his Indigenous heritage (relevant under the principles in R v Fernando), and his early guilty pleas?
  • How should the AVO contravention, dealt with on a s 166 certificate from the Local Court, be sentenced alongside the indictable matters?
  • Whether special circumstances existed to justify a longer-than-standard parole period.

Decision

His Honour assessed the overall offending as a serious example of domestic violence. The offences were interconnected but involved discrete and serious acts: the use of a knife, sustained physical violence, two separate chokings, threats to kill, dangerous driving, and the contravention of court orders, all committed in the presence of a young child. The offender's statements during the incident demonstrated possessiveness and an intention to exercise coercive control. His Honour emphasised that choking is a specific offence under the Crimes Act because it can cause death, and that the fear of suffocation experienced by a victim should never be underestimated. The complainant's asthma heightened the risk of serious harm.

His Honour acknowledged the principles from R v Fernando and Bugmy v The Queen in considering the offender's deprived background and its relevance to his moral culpability. However, the court observed that these principles do not diminish the need for an appropriate sentence and do not require that victims of serious violence be denied the protection that punishment is intended to provide. His Honour stated plainly that women should not be forced to bear an unfair burden and that courts must not convey the impression that serious violence against women will be treated as a matter of lesser moment.

Full credit was given for the early guilty pleas. The pleas had utilitarian value and, critically, spared the complainant from having to give evidence, thereby avoiding additional trauma. A finding of special circumstances was made, resulting in a parole period longer than the statutory default, on the basis that the offender would need significant assistance and supervision upon release. His Honour noted that a heavy sentence may not of itself reduce the risk of future offending, but balanced all relevant factors in arriving at the aggregate sentence.

Orders Made

  • AVO contravention (s 166 certificate): Fixed term of 9 months imprisonment, commencing 20 January 2021; partly subsumed within the aggregate sentence.
  • Aggravated take/detain (s 86(2)(b)), including Form 1 matter: Indicated sentence of 3 years and 9 months imprisonment.
  • Intentionally choke with recklessness (s 37(1)): Indicated sentence of 2 years and 7 months imprisonment.
  • Aggregate sentence for the two indictable matters: 4 years and 6 months imprisonment, commencing 20 March 2021 (three months after the AVO sentence commenced).
  • Non-parole period: 2 years and 6 months from 20 March 2021, making the offender eligible for parole consideration from 19 September 2023.
  • Parole period: 2 years, commencing 20 September 2023 and expiring 19 September 2025.
  • Accumulated total: 4 years and 9 months, with a minimum of 2 years and 9 months in custody before parole eligibility.
  • Backup offences on the s 166 certificate were dismissed.

Key Takeaways

  • The District Court confirmed that an offender's deprived background and Indigenous heritage, considered under the Fernando and Bugmy principles, may reduce moral culpability but do not override the need to impose sentences that appropriately protect victims of serious domestic violence.
  • Choking as a discrete offence under s 37(1) of the Crimes Act 1900 reflects the legislature's recognition that such conduct carries a real risk of death; the court treated the presence of the complainant's asthma as a factor elevating the objective seriousness of that charge.
  • A breach of an ADVO was treated as an aggravating matter reflecting deliberate disregard for court authority and the practical undermining of the protection those orders are designed to provide.
  • Early guilty pleas attracted full utilitarian discount where they spared the complainant from giving evidence, thereby avoiding further trauma to the victim.
  • A finding of special circumstances justified an extended parole period on the basis that the offender would require significant support and supervision upon release, rather than on the basis of a lesser period in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37(1), 86(2)(b)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hoskins v R [2021] NSWCCA 169
- Markarian v The Queen (2005) 228 CLR 357
- Pearce v The Queen (1998) 194 CLR 610
- R v Burton [2008] NSWCCA 128
- R v Fernando (1992) 76 A Crim R 58
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Suksa-Ngacharoen v R [2018] NSWCCA 142