R v Thomas

[2025] NSWDC 111

District Court

New South Wales

Medium Neutral Citation:

R v Thomas [2025] NSWDC 111

Hearing dates:

6 February 2025

Date of orders:

6 February 2025

Decision date:

06 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 2 years 3 months

Catchwords:

CRIME — Public justice offences — Threatening or intimidating victims or witnesses

CRIME — Property offences — Destroying or damaging property — Aid and abet

SENTENCING — Aggravating factors — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment — Start date

SENTENCING — Relevant factors on sentence — Form 1 offences — Maximum penalty — Moral culpability — Unsworn evidence in reports going to objective facts cannot be accepted — Objective seriousness — Deterrence — Specific — General — Rehabilitation must be fostered despite entrenched recidivism — Community Protection

SENTENCING — Subjective considerations on sentence — Assessing reports where the offender’s history is uncontroversial — Professional opinions that do not rely on unsworn assertions as to motive can be accepted — Mental illness and multiple mental disorders — Drug addiction — Childhood neglect — Sexual abuse when a child — Impact of custody on non-association prisoner

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

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 vGeddes (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

Category:

Sentence

Parties:

Benjamin Shane Thomas (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
M Valentin (for the offender)

Solicitors:
Tsintilas & Associates (for the offender)
J Azad solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/173713; 2023/208441; 2023/439835

JUDGMENT – ex tempore revised

Introduction

1. When was before the Local Court, Benjamin Thomas said he would plead guilty to two serious offences:

1. Act with intent to influence a witness: Crimes Act 1900 (NSW), s 323A.

2. Intentionally damage property by fire as an aider and abetter: Crimes Act, ss 195(1)(b), s 346.

2. The plea in the Local Court requires I reduce the otherwise appropriate sentences by 25% to reflect their utilitarian value. I will take care because the sentences must be accumulated not to reduce the benefit by the process of accumulation.

3. It is important to put today’s matter into a chronological context.

4. Thomas was born in 1987. By the time he was 13 he was effectively living on the streets. He came before the Children’s Court in 2004 and in 2005. When he was 16, he spent time in Juvenile Detention. There is evidence he was subject to institutional child sexual abuse.

5. In 2006, aged 18, he started serving the first of many gaol sentences. He has spent the bulk of his adult life in gaol. In November 2013 he was released to parole. On the date of his release, he offended against his former partner. He was back in custody by 15 November 2013. He was subsequently sentenced by Judge Conlon SC to a 10-year sentence for offences against that former partner.

6. On 10 March 2022 he received parole on that matter. By 20 July 2022 he was back in custody including for offences against another partner. They were dealt with by Wollongong Local Court.

7. Between October 2022 and December 2022, he made a considerable number of phone calls to this former partner, the complainant, seeking to influence her not to give evidence in the Local Court. Those entreaties it appears, were ultimately successful. The complainant did not appear at the Local Court on 13 January 2023. The charges were dismissed because she did not appear. Although the charges were dismissed, he was readmitted to custody that day on other matters.

8. On 31 May 2023, Thomas was charged with influencing the witness who did not appear on 13 January 2023. On the same day, frustrated at being charged, he made a call to his mother and asked her to do what she could to influence the witness. A charge resulting from that call that is before me on a Form 1.

9. In September 2023, he made calls to one of his children who was still a child. He recruited her to assist in damaging property belonging to either his former partner or her new boyfriend: A charge on a Form 1.

10. His counselling and procuring of his child continued. On 13 September 2023, the child attended at the former partner’s new premises and set fire to a motor vehicle in its driveway. The vehicle was totally destroyed. The vehicle belonged to her then partner. That is the intentionally damage property offence for sentence.

11. Thomas was released on other matters to serve a sentence subject to intensive correction in the community. Reports before the Court enabled community safety concerns to be met. He had not yet, at that stage, been charged with the arson offence.

12. The Police investigation continued. They reviewed records of Thomas’ gaol calls. On 29 June 2023 he was arrested for the arson offence. Bail was refused.

13. At that stage, he was serving the balance of the parole of the sentence imposed by Judge Conlon nearly ten years earlier. He was also bail refused for the arson offence. And, I presume, also the influence offence, but that is not clear from the records before me. He served the balance of parole until 13 November 2023. He was not released, and he has been in custody continuously since 29 June 2023.

Maximum penalties

14. The offence of intentionally damage property carries a maximum penalty of 10 years imprisonment. The offence of influence a witness carries a maximum penalty of 7 years imprisonment. They are important guides to the exercise of my sentencing discretion.

Facts for sentence

Influence witness

15. There are Agreed Facts before the Court. They are comprehensive. This is a short summary of the conversations, that make up the influence offence.

16. Thomas and his former partner had been in a relationship for about five months. There was a domestic violence incident, and the offender was arrested and charged with five offences. He was held on remand. An Apprehended Domestic Violence Order was applied for and granted. The matter was listed for hearing on 13 January 2023.

17. Between 21 October 2022 and 13 January 2023 while on remand at Parklea Correctional Centre, the offender contacted the complainant on numerous times and spoke to her. The calls were, as all gaol calls are, recorded.

18. Thomas was aware she was to be called as a witness at the hearing. The repeated calls and what was said during the calls was done with the intention of persuading her not to attend as a witness at the hearing.

19. A call from 11 November is illustrative. Speaking of the police he says to her, “Just tell them when they call, just tell them to fuck off”.

20. On 17 November 2022, he asks, “Babe am I coming home to you?” To which she replies, “Yeah”. He put the same question to her on other occasions.

21. On 6 December 2022 the complainant says, “If you get out on the 13th January, what’s your plans … I wanna know your plans”. He responds, “Just fix my life.” Later in the call he says, “Do you want me to stop ringing?” She replies, “I don’t know what to fucking do. What should I do … I honestly don’t know”. The offender replies:

“Tell them to get fucked, like, we didn’t ask for this. I didn’t ask them to take my family away from me and not being able to contact my fucking family. Look either in 5 weeks I come home or, you know they want you to do whatever bloody saying I called you. Say, listen here he’s not bloody calling me I don’t know what you’re fucking talking about.”

22. The calls continue in a similar vein through to 28 December. On that day she says to him, “I don’t know why you didn’t just plead guilty from the start”. The offender replies, “I fucking told you I would”. She replied, “I don’t know why you didn’t, I honestly don’t know why you didn’t do it”. Then the calls persist.

23. His former partner told police she was frightened that if she gave evidence against the offender, he would get angry and do something.

Form 1 matter.

24. On 31 May 2023, after having been charged, Thomas telephoned his mother expressing his anger about the further charge and requested his mother contact the witness and tell her to “do an affidavit”. He asked his mother tell her to say she had not been influenced by him or not attend as a witness at the hearing. He kept at his mother, telling her that, “This was beyond a fucking joke”. And that he was “not fucking coping it”. That is, with being charged with influencing a witness. He claimed he was “wasn’t even fucking upset with her for saying all that fucking shit” and he would have “just coped it but … now she wants to fucking …”. He expressed how upset he was.

25. His mother did speak to the former partner, but the former partner told police that his mother never spoke to her about the offender.

Damage property by fire

26. Turning now to the damage property by fire facts. The former partner formed a relationship with another man in July 2022. In January 2023 a final Apprehended Violence Order was made with the view of protecting her from the offender. In September 2022, the woman and her partner were living in Wollongong.

27. On 12 September 2022, her new partner purchased a new Ford Ranger, valued at $90,000. At about 10.15pm on 13 September 2022, he parked the Ranger in the driveway of their residence in suburban Wollongong behind the female’s car. The vehicle was locked and secured.

28. Shortly afterwards he noticed the sensor light turn on, he noticed a person in a black hooded top nearby. A few minutes after the sensor had gone off, he heard his vehicle’s alarm. He went outside and saw flames emanating from the rear of the vehicle. He yelled out to his female partner to call the fire brigade. He grabbed the garden hose and tried to extinguish the fire.

29. He saw the rear window and the utility tray had been destroyed and the flames were inside the vehicle. He used the hose until the fires had been extinguished and the fire truck had arrived.

30. The vehicle was an insurance write off. It had been a birthday gift to himself. He had only had for two days.

31. Police initially ruled Thomas out as a suspect because he was in custody. However, they then checked gaol calls, sought a search warrant which enabled them to get copies of the calls which recorded discussions between the offender and one of his children. There are extensive extracts of those conversations in the Agreed Facts. Sometimes he uses a rudimentary code and other times he speaks quite bluntly. For example:

“Get something fucking real flammable. Stab some tyres, throw a brick through the bloody car window or something … they should go to sleep pretty early. You’re allowed out till about 10, yeah.”

32. It is clear that he was using his child as the conduit to commit the offence to which he has pleaded guilty.

The Form 1 matters

33. When I sentence Thomas for each offence, I will take into account the matter on the Form 1 pursuant to s 33(2)(b) Crimes (Sentencing Procedure) Act1999 (NSW); 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.

34. So far as the damage car by fire matter is concerned, the Form 1 is not strictly duplicitous. An act of “recruitment’ was charged pursuant to s 351A(2) Crimes Act. It is different than the provisions of s 346 relating to aiding and abetting. But the matter placed on the individual Form 1, apart from the initial act of recruitment, is inextricably linked to the principal offence. While charged separately to the s195(1)(b) offence, they are so closely linked that to parse them would be impossible. When assessing the gravity of the principal offence, I could not do so without reference to who, and why he utilised his child. To separate that fact out would be entirely artificial and lead to an incorrect assessment of the gravity of the damage property by fire offence.

35. In those circumstances, while a separate offence that will be taken into account, the Form 1 matter adds nothing to the sentence that I would otherwise impose. To do otherwise would be to double count this factor: Flick v R [2023] NSWCCA 197.

36. When it comes to the act with intent to interfere with witnesses, it is a separate crime. It was committed after the principal offence. It related to the matter that is presently before the Court for sentence. Despite knowing that he had been recorded attempting to influence the witness and charged with it, he made another phone call with the same intent. His mother did not carry out what he had asked her to do, nevertheless the intent was there. I do not sentence for that offence but in accordance with point 1 of Tukuafu v R [2004] NSWCCA 119 in the Attorney General’s Application, I must and do, give extra weight to personal or specific deterrence and retribution in the matter for sentence. But given the nature of the call and given his obvious frustration at being charged again while in custody, and his mother’s failure to act on his request, while I take it into account, it does not divert me, from an appropriate assessment of the matters that must be taken into account when I consider the matter to which it relates.

Objective seriousness

37. I am required in this sentence to identify all the factors relevant to the sentence and discuss their significance. Ultimately, I have to make a value judgment about each appropriate sentence to be indicated and the appropriate aggregate sentence. I have to take into account all relevant matters.

38. The sentences must be proportional to what was done. I cannot increase the sentence simply for community protection. I cannot reduce the sentence beyond what is required because of what was done. That means I have to make an assessment of the objective seriousness of each offence as an essential part of my assessment of the appropriate sentencing outcome.

Influence a witness

39. So far as influencing a witness is concerned – any attempt to influence a witness is a significant offence. The community has an interest in ensuring that justice is properly administered. Offences that interfere with court proceedings by trying to persuade a witness who is giving evidence strikes at the very heart of the justice system. Where the initial charges relate to domestic violence matters, such crimes can interfere with the court’s capacity to protect vulnerable individuals. Here the person who was the subject of domestic violence allegations was personally targeted by the offender. It is another example of the way in which he exercised power and control over her.

40. Accordingly, principle demands that even where there are significant matters in litigation strongly deterrent sentences are required. Sentences of a severity that sends a message, to the individual for sentence and others in the community who might be so minded to offend in this way, that putting pressure or influence on witnesses cannot be tolerated.

41. I note that his influence was successful, if fruitless, because he was not released on 13 January. That said when I consider the text of what was said the pressure was subtle. There was no threat of violence, and so this offence is missing some of the aggravating features that are commonly associated with crimes of this type. That said, a custodial sentence of some length is required to reflect the obvious seriousness of what was done.

Damage property by fire

42. In regard to the intention to damage property by fire, it is a relevant factor that the offence was committed from custody where he was placed to protect the community from him.

43. I reject the unsworn assertions that it was done because his ex partner had been “bad mouthing” the child. There is no evidence to support that apart from his own unsworn assertions to others.

44. The only conclusion I could reach is that it was a further attempt to exercise some form of control over his former partner. There were a number of calls and some days of planning, therefore the crime involved premeditation. The damage was extensive. I am not particularly sure Thomas was concerned about what car was damaged just that “a” car was damaged. But here the crime led to the total loss of a valuable and brand new car. There would have been accompanying personal stress to the owner and of course the former partner who was present in the home where the car was parked.

45. The car was set alight in a residential area. Fires lit in vehicles commonly spread. There was a real risk that the fire could have caused further damage to other vehicles or premises. There was a potential risk of injury to the owner, residents or neighbours or those who came to fight the fire. Thankfully the owner was about to douse the flames, and the fire brigade were there shortly afterwards.

46. Thomas induced another person to commit the offence on his behalf, that person was a child; his child. He had a responsibility to his child not to involve her in criminal behaviour. He breached his responsibilities as a father.

47. As I noted above, I cannot double count the Form 1 offence.

48. To set fire to property in public is extremely serious and dangerous. It is an easy crime to commit, it can, as initially here, be difficult to detect. Again, the authorities by which I am bound make it clear that regardless of a person’s personal circumstances a custodial sentence is required with particular emphasis placed on specific and general deterrence.

Victim impact

49. The absence of a Victim Impact Statement does not give rise to an inference that the offences have little or no impact: Crimes (Sentencing Procedure) Act, s 30E. These offences must have had an impact on their victims.

Criminal history

50. For most of his life, since he was 16 years old, Thomas has been in custody. He has spent less than two years in the community as an adult, and he is now 38. In 2015 he was sentenced to a 10-year sentence by Judge Conlon SC. He was still on parole for that sentence when these offences occurred. The influence offence occurred while bail was refused for the subject of that charge. He received an Intensive Correction Order (‘ICO’) but because of his arrest he could not complete it. He did not breach the ICO for other crimes, but he could not serve it in any event.

51. The prosecution note that it is concerning that these offences were committed against a partner, as the 2015 offences were. And, as they included an offence of attempting to pervert the course of justice, that similarity is concerning.

52. Thomas’ criminal history is relevant to determining the proper sentence. It indicates that this offence was not an uncharacteristic aberration. His history demonstrates his continuing disobedience towards the law. That said, the prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence for sentence, but it does warrant a more severe penalty. Again, I note that my focus is on the retribution or general deterrence, personal deterrence and community protection: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

Starting date

53. Thomas has been in continuous custody since 29 June 2023. That custody continued while he was subject to the ICO, which could not be put into effect after 29 June. He also served balance of parole, but I have already taken that fact into account in aggravation of sentence. In those circumstances, I will start this sentence on 29 June 2023, the date he went into custody.

The case for the offender

54. Thomas did not give evidence. He made some assertions about his motivation to commit the offences to the psychologist he spoke to, particularly Ms Dombroski whose report is before me. In these circumstances, as I have earlier indicated, I cannot accept unsworn assertions that might go to an assessment of the objective seriousness of the offending.

55. And I do not, but there is no reason here to lessen, the effect of the opinions of the professional psychologist and psychiatrist which were based on his personal history and admitted without cross-examination and compliance with the Practice Note.

56. I can here, putting aside assertions attributed to Thomas about his motivation, take into account his personal history (which is uncontroversial) and their opinions and the significance of his history to their opinions. So, while I accept the uncontroversial personal history, and I take care to divorce from the material before me untested assertions as to motive, I have no difficulty in accepting the professional opinions of the psychologist and psychiatrist whose reports are before me.

57. To that extent I note that the Sentence Assessment Report of 2025 in Exhibit C, dealt with the assertions in an appropriate manner indicating that the author was not particularly impressed by attempts to pass the blame onto others, but that report indicates a plan can be put in place once Thomas is released to the community.

58. I have the benefit of reports from psychologist, Ms Dombrovski, who prepared a report for these proceedings. I have a report from Ms Awat, psychologist, who prepared a report for the Local Court proceedings.

59. Professor Robinson and Dr Pryor prepared reports for civil proceedings in relation to the claim for damages following from what, on balance, I find were sexual assaults committed against Thomas whilst he was in juvenile detention.

60. I note that where matters are prepared for civil proceedings and possible compensation claims, the focus of such reports is generally on harm flowing from the trauma suffered and not on matters that may mitigate criminal penalties. I note that Professor Robinson makes an impairment assessment as an Annexure to his report. One assessment is that Thomas has a “total” incapacity to work. That opinion is contradicted by the employer’s report before me that says he can work. I do not place significant weight on that difference. It may be raised at the civil proceedings, it may not, but what is clear from the reports is that the offender’s sad personal history has had a significant influence upon, and provides, as Ms Dombrowski says, context to his offending.

61. The uncontroversial history is one of significant disadvantage.

62. His father was a member of an outlaw motorcycle gang. There was violence in the home. Thomas was exposed to drug use and other abuse including sexual abuse and neglect. The details are there in the reports and, as I said, they are uncontroversial. They continued from when he was born and while he was a child.

63. Thomas has spent very limited time in the community, but he has four children. I am saddened to read that three of them are in custody. The public needs to understand the impact, the long-term impact, of having a parent in custody. His father spent time in gaol, he spent time in gaol, and now his children are in gaol!

64. In relation to his mental health; Dr Robinson notes a Substance Abuse Disorder, a Post-Traumatic Stress Disorder, a Schizophrenic Disorder and a Personality Disorder with Cluster B traits. Dr Pryor agrees with that assessment, but in his opinion the Personality Disorder has progressed to an Anti-Social Personality Disorder. Ms Dobrowski adds to Dr Robinson’s opinion. Her testing reveals an Obsessive Compulsive Disorder with obsessive thoughts and compulsive behaviour. She notes that his restlessness and agitation have been moderated by prescribed medication since 2023, which he is, as I am aware, still taking to help him sleep and moderate the symptoms of his various conditions.

65. Ms Dobrowski’s report notes that he requires management of his unstable personality structure. A par [26] she says:

“Mr Thomas requires management of his unstable personality structure (and the erratic thoughts, feelings and behaviours that characterise his personality functioning) to reduce his risk of re-offending. He struggles to engage with therapeutic interventions, which is common for people with his personality structure. He will require a pre-treatment program of motivational interviewing (or similar) to develop the commitment needed to fully engage with his treatment. He will need long term treatment and management ([that is] weekly to fortnightly to monthly) over several years to be effective. Treatment will need to target his history of childhood neglect and physical / sexual abuse to maintain long-term treatment outcomes.”

66. I endorse that opinion. A copy of each of the exhibited reports will be sent with the warrant.

67. A person’s mental illness and multiple mental problems can, and should here, result in amelioration of his moral culpability, with a consequent need to reduce the need to denounce the crime. I take into account the useful summary provided by McClelland CJ at CL, in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. However, those matters do not all point in the same direction.

68. It is clear, and the evidence before me establishes, that there are here, in the complex background of Thomas, a number of paths operating to reduce his moral culpability. They include:

1. The effects of childhood deprivation and neglect: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571;

2. Childhood trauma, including being the victim of sexual assaults on at least two occasions: Nasrallah v R [2021] NSWCCA 207; and

3. Mental health issues: De La Rosa.

69. They are here inextricably interrelated. Each, individually and collectively, had an impact on the formation of the man for sentence. They meant his socialisation, his sense of community, were all interfered with, and that interference continues to this day. His capacity to interact with others including personal partners was formed by his early childhood experiences, by his experience in juvenile detention and experience in gaol.

70. Gaols are not happy places. They are places where distrust of others is common, and violence is pervasive.

71. Thomas took up the use and abuse of illicit drugs before he was old enough to make any rational choices. He has seen himself as an outlaw and associated with outlaw groups. He has reinforced that self-image by the tattoos he has had placed on him. He has limited schooling. He has limited capacity to earn how lead a normal life in the community because he has never really led a normal community life.

72. As the plurality of the High Court acknowledged, the pervasive effect of profound deprivation is not confined to the commission of a single offence or a series of offences, it is always relevant: Bugmy at [40]; R v MJ [2023] NSWCCA 306.

73. Where a person’s childhood and adolescence has been affected by disadvantage, trauma and mental health issues, this can and has here, on the evidence before me, inhibited a development of any pro-social values. Thomas has not acquired the moral compass that one would expect of most individuals in our community. His personal history has had an impact on his capacity to make behavioural decisions and his consequential thinking. His background has compromised his capacity to mature and learn from experience. The evidence of that is starkly obvious here; not just in the reports, but in the fact that the offences were committed from gaol using gaol calls which he knew were recorded. He should have known how such calls can be used as gaol recordings had been used in in the matters dealt with by Judge Conlon SC.

Remorse?

74. I am prepared to accept that he sincerely regrets involving his daughter and his mother in his offending but there is no evidence of any remorse so far as his victims are concerned. I am not sure he is capable of thinking about the consequences of his behaviour on others. He is not to be punished for that or for minimising the criminality of his behaviour. It is inherent to, and a consequence of, the matters that reduce his moral culpability. His capacity to make moral decisions has been grossly compromised.

75. The record before me, including his institutional breaches indicates he has been institutionalised. His prognosis remains bleak. That said, even in such circumstances, special circumstances can be found in the hope that some transitional programs can be put in place and that he can be supervised and monitored for as long as possible. Ultimately, supervision and monitoring in the community may assist in the protection of the community, which in turn, lowers the chance of recidivism. I note, as the Crown submit, that I must be very guarded in this conclusion because he continued to offend while in custody and while on parole.

The burden of custody

76. The gaol custodial record indicates that since he went to custody on this occasion, he was subject to a PRNA non-association classification because he has tattoos of Nazi insignia. He has two German words across his forehead that are associated with that particular ideology. I am aware, and Ms Dombrowski reports, that non-association prisoners are limited in their custodial options, programs and work availability. Such isolation cannot help the person’s mental health as Ms Dombrowski notes at par [8]. His PRNA classification also means he spends more time in cells than other prisoners. The community has to understand that a cell contains little more than a bed and a toilet. He will be isolated from other individuals. If he is locked down, he has to eat in the same place he defecates. Judges do not ignore a lived experience of gaol.

Sentence structure

77. I am required to indicate a sentence for each offence. I am required to structure the sentences such that the aggregate sentence is just and appropriate to the totality of what he did; his crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].

78. I have to evaluate the broad sense of that overall criminality. There can be, and is here, some downward adjustment and adjustment, so far as concurrence is concerned, to achieve appropriate relativity and a total sentence: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).

79. Thomas has not kept to the parole allowed for by Judge Conlon SC’s sentence, but it is accepted by the prosecution that some adjustment of the ratio between the head sentence and the non-parole period is required here. I cannot accept the defence submission that there be a significant reduction in the legislated ratio. That is because I am mindful of the requirement of the minimum period for which he should be imprisoned must properly reflect the gravity of his offending and the many purposes of sentencing; not just rehabilitation: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. That said, I am prepared to make a finding of special circumstances to allow for longer on parole than would otherwise be the case.

Submissions

80. So far as general matters of principle are concerned there is not a significant difference between the submissions of Mr Valentin and Ms Azad, solicitor for the Director. I cannot accept the offender’s submission that the s 5 Crimes (Sentencing Procedure) Act threshold has not been crossed – so serious are these matters, given my findings in relation to objective seriousness.

81. Mr Valentin submitted that the balance of the sentence could be served subject to intensive correction in the community. Before I consider an ICO I have to first consider the length of the appropriate overall sentence; a sentence of under three years is not possible in this matter. Despite the matters raised in mitigation, community protection concerns are, and remain, significant.

Synthesis

82. Here I have to take into account all material facts and factors; some aggravate, and some mitigate. There is no golden rule: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [65]. Giving proper weight to the purposes of sentencing requires I consider complex and conflicting matters. That is what makes sentencing so difficult: Veen at [476]. For some matters considerable weight has to be given to the offender’s personal circumstances and the context of the offending in terms of his moral culpability.

83. At the same time, matters of protection of the community can assume great importance, particularly in cases involving offences against former partners or those associated with them.

84. It was submitted that Thomas is an inappropriate vehicle for general deterrence. I cannot agree with that submission, but he is clearly less appropriate because of his personal circumstances, but general deterrence still has a considerable role to play given the nature of the offending and my findings as to objective seriousness. Appellant decisions require considerable weight be given to this factor in relation to both matters for sentence.

85. There is some reduction in the need for specific deterrence because of his background and his mental health issues. Gaol has repeatedly failed to prevent him committing offences, as is clear, but the offender has to learn to recognise and apply learned behaviour. That is, if he commits offences, given his record, he will go back to gaol. It is as simple as that.

86. The De La Rosa principles, as I noted, do not always point in one way. One factor noted in De La Rosa was the need for community protection where a person might have an Anti-Social Personality Disorder. It is clear that whatever the causes, this offender can be particularly dangerous to women with whom he forms a relationship, as is demonstrated by this and the other offending.

87. But Thomas does have the capacity to make decisions, but it is clear on the evidence, that his capacity to make decisions, even those in his own interests, have been grossly comprised by his background and his socialisation in gaol and in juvenile detention. That means that regardless of cause, there is a danger here of future offending. His prognosis is guarded. There is some glimmer of hope in the Sentence Assessment Report and what is said by Ms Dombrowski in her report.

88. Thomas cannot be removed from the community for longer than is necessary. His sentence can be moderated to allow for support and targeted assistance in custody and on release. He will need extensive help, given his limited experience of living independently in the community: Dombrowski at [27].

89. He has some support; his mother and his employer are here in Court. He will need help from Victim Services, if possible, to deal with the impact of the sexual abuse he has suffered. He may get help if the civil action resolves in his favour and his compensation for the crimes he has committed is not taken away by victims or their insurers.

90. Motivation is particularly important. Too long a sentence could interfere with the current glimmers of hope, so far as personal motivation is concerned; too long a sentence can thus be counterproductive.

91. Protection of the community involves removal of someone from the community, but it is clear even in gaol he has the capacity to offend. Protection of the community must also focus on the offender’s rehabilitation and return to the community, because he must be returned to the community. As Chief Justice French has said, “Rehabilitation, if it can be achieved, is likely to bethe most durable guarantor of community protection and is clearly in the public interest”. Hogan v Hinch [2011] HCA 4.

92. Ms Dombrovski, at par [28,] says, and I endorse – Thomas will need significant pre-release planning and access to community-based supports. He will require close professional monitoring and supervision – to support his engagement in treatment and assist with this reintegration (she says at least 12 months).

93. He must have help promoting stable functioning in the community post-release. That said, he will have to earn his release. A plan must be put in place, and while special circumstances are found, it must be understood that unless he has demonstrated a capacity to engage, both in custody and in the community, before he can be released, the State Parole Authority will have to consider matters in the interests of community safety.

Orders

94. There will be an aggregate sentence. I am required to indicate sentences for each matter. They take into account; the plea of guilty (with some rounding to his advantage) and the Form 1s:

1. For the influence witness offence, I indicate a sentence of 2 years imprisonment

2. For the damage property by fire offence, I indicate a sentence of 2 years and 7 months imprisonment.

95. The aggregate sentence is 3 years and 6 months. The non-parole period is 2 years and 3 months. It will date from 16 June 2023, meaning Thomas will be eligible for consideration for release to parole on 15 September 2025. The balance of the term is 1 year and 3 months to commence on 16 September 2025 and expire on 15 December 2026.

96. A copy of the reports in the defence exhibits should go to Community Corrections.

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Decision last updated: 03 April 2025