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District Court 4 April 2025

R v Tuohy

[2025] NSWDC 215

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: R v Tuohy [2025] NSWDC 215
Court: District Court of New South Wales
Date: 4 April 2025
Judge: Haesler SC DCJ

Background

The offender, a man born in 1996, was sentenced for a series of domestic violence offences committed against his former partner over a period from August to September 2022 in the Illawarra region of New South Wales. The offences occurred in a relationship context and included intimidation, intentional choking, common assault, reckless damage to property, and contravention of an Apprehended Domestic Violence Order (ADVO).

The most serious charge, aggravated detention of a person with intent to obtain an advantage causing actual bodily harm under s 86(2)(b) of the Crimes Act 1900 (NSW), was contested. After initially entering a guilty plea, the offender sought to withdraw it, and the matter proceeded to trial at Wollongong District Court in October 2024. A jury returned a guilty verdict on 25 October 2024.

The offender had a prior criminal history in Victoria, Queensland, and New South Wales, including prior domestic violence offences. He had been on conditional liberty (parole and an Intensive Correction Order) at the time of the offending, and had been in continuous custody since October 2022.

  • What sentence was appropriate for each individual offence, having regard to maximum penalties, objective seriousness, and mitigating factors including guilty pleas?
  • What guilty plea discounts applied, particularly for the trial matter and for a matter the subject of a disputed facts hearing?
  • How should the sentences be accumulated or made concurrent, and did the aggregate sentence avoid being "crushing" having regard to the totality principle?
  • What weight should be given to the offender's subjective circumstances, including childhood trauma, intergenerational disadvantage, drug addiction, and mental health issues?
  • What findings of fact were required before sentence could proceed, particularly in relation to the disputed facts hearing on one common assault count?

Decision

His Honour found that the offending was serious, sustained, and directed at a single vulnerable victim over a short but intensive period. The Form 1 matters (additional offences taken into account without separate sentence) confirmed that the principal offences were not isolated but part of an ongoing course of conduct. The trial matter, aggravated detention under s 86(2)(b) with a maximum of 20 years imprisonment, was treated as the most serious offence.

On guilty plea discounts, His Honour applied a 25% utilitarian discount to all counts where pleas were entered in the Local Court, with two exceptions. No discount was available for the trial matter given the not guilty plea. For the disputed facts matter (Sequence 20, a common assault), the disputed facts hearing was resolved against the offender, resulting in a reduced discount of only 10%. His Honour noted that the complainant had been required to attend court and face credit attacks, reducing the utilitarian benefit of the plea.

His Honour considered the offender's significant subjective circumstances at length, including childhood sexual abuse, intergenerational trauma, disadvantage, drug addiction, and diagnosed mental health conditions. These were accepted as relevant mitigating factors, though they did not diminish objective seriousness or the need for deterrence and community protection. The offender's prior record, his being on parole at the time of the offending, and his limited remorse for the trial matter were treated as aggravating features.

Applying the totality principle to guard against a crushing sentence, His Honour made orders for partial accumulation and partial concurrency across the multiple counts, arriving at an aggregate term. A special circumstances finding was made, extending the balance of term beyond the standard ratio to allow for adequate supervision and support on release.

Orders Made

  • Aggregate sentence of 6 years and 3 months imprisonment, commencing 9 February 2023
  • Non-parole period of 3 years and 6 months, with the offender eligible for release to parole on 8 August 2026
  • Balance of term of 2 years and 9 months, commencing 9 August 2026 and expiring 8 May 2029
  • Individual sentences imposed as follows:
  • Sequence 1 (intimidation, including Form 1): 10 months
  • Sequence 15 (intimidation): 8 months
  • Sequence 16 (intentional choking, including Form 1): 2 years, 1 month
  • Sequence 6 (reckless damage): 3 months
  • Sequence 8 (aggravated detention for advantage, trial matter): 3 years, 7 months
  • Sequence 11 (common assault): 4 months
  • Sequence 12 (intimidation): 1 year, 4 months
  • Sequence 13 (reckless damage): 8 months
  • Sequence 20 (common assault, disputed facts): 1 year, 4 months
  • Sequence 9 (contravene ADVO, s 166 certificate): 3 months
  • Release to parole subject to the State Parole Authority satisfying its statutory community safety obligations under s 135 of the Crimes (Administration of Sentences) Act
  • Psychologist's report to accompany the warrant

Key Takeaways

  • A guilty plea discount of 25% was unavailable for the trial matter because the offender contested the charge; similarly, where a disputed facts hearing was resolved against an offender and required the complainant to attend court and face credit attacks, the District Court reduced the discount to 10% under s 25F(4) of the Crimes (Sentencing Procedure) Act 1999.
  • Where sentencing attracts multiple counts with varying Local Court caps, a sentencing court sitting in the District Court may take into account the lower Local Court maximum penalties that would have applied had the summary matters been dealt with below, even where they were properly joined with indictable offences.
  • Form 1 matters carry no separate sentence but are relevant to establishing that the principal offending was part of a persistent course of conduct rather than an isolated event, affecting the weight given to deterrence and retribution.
  • Significant subjective circumstances, including childhood trauma, intergenerational disadvantage, and mental illness, were accepted as genuine mitigating factors but did not override the need to vindicate the victim's dignity, express community disapproval, and protect the community from future offending.
  • Conflicting Court of Criminal Appeal authority exists on whether plea discounts must be expressed in precise weeks and days: His Honour declined to follow the more recent approach in Sampson v R [2025] NSWCCA 25, preferring the established practice of rounding to the offender's advantage and avoiding sentence being subordinated to arithmetic equations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1), 61, 86(2)(b), 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 25, 25F(4), 33(2)(b), 37
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Akkawi v R [2012] NSWCCA 11
- Allen v R [2010] NSWCCA 47
- 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
- Ball v R [2013] NSWCCA 126
- Bonwick v R [2010] NSWCCA 177
- Bott v R [2012] NSWCCA 191
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Cherry v R [2017] NSWCCA 150
- De Simoni v The Queen (1981) 147 CLR 383
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- GS v R; Director of Public