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District Court 6 February 2025

R v Thomas

[2025] NSWDC 111

Assault & violenceDomestic & family violencePublic order & justice offences
ASSOCIATION PRISONER

Citation: R v Thomas [2025] NSWDC 111
Court: District Court of New South Wales
Date: 6 February 2025
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to two offences committed while he was in custody on remand. The first was acting with intent to influence a witness under s 323A of the Crimes Act 1900 (NSW). Between October 2022 and January 2023, he made repeated recorded phone calls from Parklea Correctional Centre to his former partner, who was due to give evidence against him in domestic violence proceedings. The calls were designed to persuade her not to attend the hearing. She did not appear on the hearing date, and the charges were dismissed.

The second offence was intentionally damaging property by fire as an aider and abetter under ss 195(1)(b) and 346 of the Crimes Act. From custody in September 2023, the offender made calls to one of his children, who was still a minor, recruiting and coaching her to damage property belonging to his former partner or her new partner. On 13 September 2023, the child attended the former partner's address and set fire to a Ford Ranger parked in the driveway. The vehicle, valued at approximately $90,000, was a total loss.

Two additional related matters were placed on a Form 1 to be taken into account on sentence. These included a further call to his mother on the day he was charged with the witness influence offence, in which he asked her to contact the complainant and encourage her to recant or not testify, and the ongoing calls to his child preceding the arson.

  • What sentences were appropriate for the witness influence and property damage offences, taking into account the guilty pleas entered in the Local Court and the utilitarian discount of 25 per cent?
  • How should the Form 1 matters affect the overall sentence?
  • How should aggravating factors, particularly an extensive criminal history and the commission of offences while on parole, be weighed?
  • How should complex mitigating subjective circumstances be assessed, including serious mental illness, drug addiction, childhood neglect, and institutional sexual abuse?
  • What weight should be given to unsworn assertions by the offender in psychological and other reports when those assertions go to objective facts rather than professional opinion?
  • How should the competing sentencing purposes of deterrence, community protection, and rehabilitation be balanced for an entrenched recidivist with identifiable prospects for change?

Decision

Haesler SC DCJ imposed an aggregate sentence, identifying indicative terms for each offence. His Honour applied a 25 per cent discount for the guilty pleas entered in the Local Court, noting care was required to ensure the benefit of that discount was not inadvertently eroded by the process of accumulating sentences.

On the objective seriousness of the offences, his Honour found both were serious. The witness influence conduct was persistent, calculated, and ultimately effective, resulting in the dismissal of domestic violence charges. The arson offence was particularly grave because the offender recruited his own minor child to carry out the physical act, exposing her to criminal liability and causing significant property damage to a third party. His Honour treated this recruitment of a child as a significant aggravating feature.

On subjective matters, his Honour accepted professional opinions in psychological reports that were grounded in clinical assessment, but declined to accept unsworn assertions by the offender about his motives or intentions where those assertions went to objective facts rather than professional diagnosis. The offender's history included a deeply troubled childhood, homelessness from age 13, institutional sexual abuse, entrenched mental illness, and long-term drug addiction. While these matters did not reduce the objective seriousness of the offences, they were relevant to moral culpability and the weight to be given to specific deterrence, consistent with the principles in Bugmy v The Queen.

His Honour acknowledged the tension between the purposes of sentencing, particularly for an offender who had demonstrated the capacity to offend even while in custody. Rehabilitation was treated as a legitimate and important sentencing consideration despite the offender's recidivism, with his Honour citing Hogan v Hinch for the proposition that rehabilitation, if achieved, is the most durable guarantor of community protection. Special circumstances were found, justifying a longer parole period to support post-release supervision and community reintegration. The sentencing court noted the offender would need to demonstrate genuine engagement before the State Parole Authority could consider release.

Orders Made

  • For the witness influence offence: an indicative sentence of 2 years imprisonment.
  • For the damage property by fire offence: an indicative sentence of 2 years and 7 months imprisonment.
  • Aggregate sentence: 3 years and 6 months imprisonment.
  • Non-parole period: 2 years and 3 months, commencing 16 June 2023, with eligibility for parole consideration from 15 September 2025.
  • Balance of term: 1 year and 3 months, commencing 16 September 2025 and expiring 15 December 2026.
  • Defence reports to be provided to Community Corrections.

Key Takeaways

  • Where an offender recruits a child to carry out a criminal act, the District Court treated this as a significant aggravating feature that elevated the objective seriousness of the offence beyond the direct harm caused.

  • Unsworn assertions by an offender that appear in psychological or other reports cannot be accepted as evidence of objective facts, such as motive or intent, even if those reports are otherwise before the court. Professional clinical opinions that do not depend on such assertions can still be accepted.

  • Under the principles in Bugmy v The Queen, a background of severe childhood deprivation, abuse, and neglect remains relevant to moral culpability regardless of the extent of an offender's criminal history, because those circumstances do not diminish with repeated offending.

  • Entrenched recidivism does not extinguish rehabilitation as a legitimate sentencing consideration. The sentencing court held that rehabilitation must be fostered where any genuine prospects exist, and that an overly lengthy sentence can be counterproductive to that goal.

  • A 25 per cent utilitarian discount applied for guilty pleas entered in the Local Court, with the court noting that where sentences are accumulated, care must be taken to ensure the mathematical process of accumulation does not effectively reduce the value of that discount.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 195(1)(b), 323A, 346
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Flick v R [2023] NSWCCA 197
- Hogan v Hinch [2011] HCA 4
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Nasrallah v R [2021] NSWCCA 207
- R v Geddes (1936) 36 SR (NSW) 554
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- R v MJ [2023] NSWCCA 306
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Tukuafu v R [2004] NSWCCA 119
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465