R v Thomas

[2021] NSWDC 839

District Court

New South Wales

Medium Neutral Citation:

R v Thomas [2021] NSWDC 839

Hearing dates:

12 November 2021

Date of orders:

12 November 2021

Decision date:

12 November 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 4 years 6 month with a non-parole period of 2 year 6 months.

Catchwords:

CRIME – Take/detain person with intent to obtain advantage cause actual bodily harm (DV);

Intentionally choke etc person with recklessness (DV) - Contravene prohibition/restriction in AVO (Domestic) - Armed with intent to commit indictable offence - Take/detain person with intent to obtain advantage

SENTENCING - Relevant factors on sentence -serious domestic violence offences – breach of apprehended domestic violence orders - early guilty plea - Form 1 matter – deprived background- efficacy of harsh punishments - women should not bear the burden - time for men to step up – offender will need significant assistance-

Legislation Cited:

Crimes Act 1900

Criminal ProcedureAct1986

Cases Cited:

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 [132]

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR

Category:

Sentence

Parties:

Stephen Thomas (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Ms E Parkes, Legal Aid NSW (for the offender)
Ms A Kerr (for Director of Public Prosecutions)

File Number(s):

2021/000011257

SENTENCE – EX TEMPORE REVISED

Introduction

1. Stephen Thomas is still a young man; he was born in 1997. He has been before the Local Court on a number of occasions for domestic violence offences, specifically relating to his partner and mother of his child. He engaged with a Koori men’s support group in an attempt to address his behaviour. But he is now in custody and facing a significant penalty for two offences against his partner; offences that were committed in the presence of his child.

2. In the Local Court he pleaded guilty to an offence of aggravated detain with intent to obtain advantage. The person detained was his then partner. The circumstance of aggravation was his occasioning her actual bodily harm. That offence pursuant to s 86(2)(b) Crimes Act1900 carries a maximum penalty of 20 years imprisonment.

3. He asks that when I sentence him for the detain for advantage offence, I take into account on a Form 1 an offence of being armed with intent to commit an indictable offence.

4. Thomas also pleaded guilty to an offence of intentionally choke so as to render incapable of resistance: s 37(1) Crimes Act. That offence carries a maximum penalty of ten years imprisonment.

5. There is also a summary matter for sentence that came to this court on a Criminal Procedure Act 1986 s 166 certificate. It relates to his contravening an Apprehended Domestic Violence Order.

6. When I sentence him, I will give him the full benefit of his early guilty pleas. Each plea had utilitarian value and was an acknowledgement of responsibility; an important one, because it means that his former partner did not have to give evidence in these proceedings, sparing her additional trauma.

Agreed Facts

7. There are agreed facts before me. Thomas and the complainant had been in a relationship for about two years. At the relevant time their child was aged 17 months. Apprehended Violence Orders designed to protect the complainant from him had been put in place on a temporary basis. Final orders were made by the Local Court on 20 August 2020. A parenting plan had been put in place so that he could continue to see their child with supervision.

8. On 8 January 2021 Thomas attended the complainant’s home in Albion Park Rail for a supervised visit. The supervisor was not present, but the visit proceeded without their presence.

9. At about 9pm the complainant asked Thomas to leave as she wanted to go to bed. She went to bed and presumed he had left. However, the following morning she found him asleep in her bedroom. He woke about 1pm and spent some time with their child.

10. At about 4pm an argument began about his drug use and their relationship issues. During the argument Thomas said to the complainant, “If I can’t have you no one can have you.”

11. Thomas then ran at the complainant and pushed her head against the kitchen cupboard. He grabbed a kitchen knife and held it to her throat, saying, “If you don’t drive me home, I will kill you.”.

12. She replied, “Let me get myself together and I will drive you home”. She could hear her daughter screaming. After holding the knife against her throat for about 15 seconds he put the knife down but he still held her against the cupboard. This is the Form 1 matter.

13. The complainant picked up her child and tried to settle her. She and Thomas continued to argue. He then grabbed hold of her hair and dragged her into a garage, He pushed her with force, smashing her face against a brick wall. He held her against the wall with his forearm against her chest. She fell to the ground and tried to crawl away. He grabbed her hair and punched her with his clenched fist.

14. She screamed, she screamed in pain, and cried “Stop”. He did not stop. She was dragged into the lounge room where he knelt on her with his entire weight. He grabbed hold of her throat with both of his hands and started to choke her.

15. She said, “I can’t breathe, you’re trying to kill me”. She thought he was trying to kill her. She managed to get him off her; and as he let go of her throat she vomited.

16. The complainant was saturated with sweat, so went to change. Thomas followed her into the bedroom. There he again held her down. Again, put his hands around her throat. She was struggling to breathe. The facts note that she is asthmatic.

17. Thomas then said, “Get in the car or I’m going to kill you”. There the threats continued. The complainant tried to get away. He pulled to the car, and she fell to the ground. By this time, she was exhausted. She was told to get in the car.

18. At this point the complainant went back inside and got their child. She put her into the vehicle. At this point Thomas drove off at high speed. The complainant was frightened and thought that she and her daughter would be killed. While he was driving, he continued to punch her.

19. A witness who lives nearby saw this. She tried to follow the car and then went to the police station to report what had occurred.

20. A short time later the sister-in-law of the offender called on the victim’s phone and she complained to her. The sister-in-law said, “Drop the baby off to me”. The offender said, “I’m going to drop the baby and then I’m going to take (the complainant) to the bush and kill her. I don’t care anymore; I’m going to go all the way”.

21. Thomas then drove to the sister-in-law’s house where the complainant was able to get out of the car. The sister‑in‑law was able to take the child. Eventually Thomas got into the complainant’s car and drove away.

22. The complainant was taken to Shellharbour Hospital. She had; swelling to her forehead, abrasions to the right side of her head and forehead, lacerations to her eye, nose and abrasions under her chin. She was tender over much of her face and had bruising to her arms and scratches over a lot of her body. She sustained swelling and tenderness to her head.

23. The facts note that on the phone was a sound recording of part of the incident. It reveals the complainant saying, “I can’t breathe, get off me” pleading with him to stop hurting her, and him replying “I hate you, I hate you, I hate you”.

24. Thomas was arrested on 20 January 2021. He made admissions saying that the complainant was “In his face”. He tried to play down the seriousness of the matter and denied some aspects of the offence but agreed he had been driving erratically.

Objective Seriousness

25. The offences all form part of one incident with separate and discrete aspects. There was a child present. The offending began in the complainant’s home. The words and actions of the offender indicated the degree of his irrationality and possessiveness. He had little thought for either the complainant or his child. A weapon was used for the form one offence.

26. So far as the detention is concerned it took place, both at the home of the complainant and in her car. Although not for a lengthy period, given all that occurred during that short period it must have seemed like an eon to the complainant who had to plead for herself and her child.

27. The detention involved continued violence, both physically and by way of threats. There were threats to kill that Thomas reinforced by saying he really meant to do it. These threats were reinforced by his high speed and dangerous driving. They all enhance the seriousness of what occurred. His purpose appeared to be to coerce and threaten and exercise power over the complainant. She was not to know if his threat was real or not. It was controlling and clearly both physical and psychological harm was intended, and actual bodily harm. Some seriousness is demonstrated. It was a serious example of a domestic violence offence.

28. The choking, given the complainant’s asthma condition and the force with which it was done, created a possibility of real physical and psychological harm. Even more physical and psychological harm than that which was occasioned.

29. The community and this offender have to understand that one of the reasons why choking is a specific offence in the Crimes Act 1900 is that actions such as his can lead to death. The real and disabling fear of suffocation by a victim should never be underestimated. I am sure it has had a lasting psychological impact.

30. There is also the breach of an Apprehended Violence Order that has to be dealt with. It will be dealt with separately. A breach of an Apprehended Violence Order indicates a complete disregard for the orders of a court. A breach has the practical effect of undermining the authority of a court and prevents a court from extending effective protection to a person at risk.

31. The order was structured to allow this offender access to his daughter. By ignoring the court orders and ignoring his responsibilities to his former partner and to his daughter. He undermined those orders and acted against his own best interest, let alone those of his daughter and his partner. Deliberate disobedience of the Court is treated seriously and is ordinarily separately punished: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132].

Domestic violence offences

32. I want to say a couple of things to you Mr Thomas that might get through to you at some stage, and hopefully get through to others in the community. Victims of domestic violence in matters such as these feel personally targeted because they were personally targeted. Such acts are usually part of a large picture of physical and mental violence and the evidence before me shows that you perpetuated that against the victim. You did so for your own purposes and to control her: R v Burton [2008] NSWCCA 128 at [97].

33. Sadly, the material before me indicates behaviour is not uncommon. Men, and it is almost always men, feel that what they do is justified or can be excused, even at times that they are the true victim. While they continue to hold beliefs that they are the person who is wronged there is a consequent and continuing threat to the victim, and they never feel safe; even when you are in custody.

34. Heavy penalties are fixed to give proper recognition to the harm done, such crimes must be denounced. This creates a dilemma for the community and the courts. There is a growing perception that men who assault women in their homes must be punished severely. The way we do this is by removing men such as you from the community and placing them in gaol. But as you know from your own personal history, as a deterrent to violent behaviour that is, gaols do not work.

35. Gaols break prosocial bonds; they encourage links with other criminals. Gaols, as you well know, are intrinsically violent environments, and rather than discouraging violent crime gaols can have a crime producing effect.

36. Sentences that focus on general deterrence are likely to be of little utility in reducing the incidents of crimes, particularly matters such as this which appear relatively spontaneous and have origins in a person’s history, going back in this case generations. But it would be wrong of the Court and the community to accept that a victim of violence is somehow in lesser need for protection or vindication because of the offender’s background or even their own.

37. Two roles of the criminal law are to vindicate the dignity of victims of violence and to express the community’s disapproval of the offending. Another role is also to do what we can to prevent repetition of the violence, a matter of particular concern to the prosecution here who bring these charges on behalf of the community.

38. Courts have to confront men who offend against women both individually and collectively. It is clear from everything I have read about you and heard about you that ingrained attitudes to women were formed before you had any chance to make rational choices. People such as Mr Maurer, from the Koori men’s support group, are trying to engage with men, and in your case Aboriginal men, to talk and work through the raw issues that crimes such as this raise. There are men in your community who are doing what they can to change your life and change the lives of other perpetrators.

39. I recognise that where men, as boys, do not grow up with positive role models, and, as you did, live in fear of violence as a child, that they can grow up with negative attitudes to women. Men can grow up thinking think themselves weak if they do not put women in their place. Those negative attitudes are then used to justify; the use of weapons, the put downs, the threats and public and personal humiliation and.

40. The community has to take some responsibility for that. We cannot put an unfair burden on the women victims of domestic violence. Change will only occur when men including perpetrators take responsibility and become part of the solution. Unless you become part of the solution you will continue to be a problem. That will mean you will be a risk to others you form relationships with, and if you harm them you could continue to return to gaol.

Form 1

41. I will take into account the matter on the Form 1. It is appropriate I do so. I do not sentence for that matter. In this case it forms part of the general factual matrix, and the use of the weapon and production of the weapon cannot be excised from the other threats that were made. I will take these matters into account when I synthesise the appropriate sentence but try in doing so not to double count in aggravation of that matter.

42. Additional matters that also have to be taken into account was the fact that you were on Apprehended Violence Order, and other court orders designed to protect the complainant which you breached, requiring additional punishment.

Maximum penalties

43. The maximum penalties require careful attention. They are measures to be balanced with all the other relevant factors. They do not start at the maximum and then make proportional deductions from it. It is an important guide to the exercise of my discretion: Markarian v The Queen (2005) 228 CLR 357, at [30] and [31] .

Record

44. There are domestic violence matters on your record of escalating severity since 2015 when you were still a child. But this is your first time in gaol, and you have been in custody since your arrest.

COVID

45. You have spent all your time in custody during the COVID pandemic. Although there is no specific evidence that you have been directly affected any more than other prisoners have been affected, I do not ignore the impact of the practices required of Corrective Services to try and reduce the spread of COVID in the gaol. I am aware that there are considerable restraints on your capacity to work and engage in programs and that you spend more time locked in cells than would otherwise be the case. As a prisoner you cannot act in your own interests to meet any concerns you might have over the pandemic.

The case for the offender

46. Thomas does not give evidence. Given his background and all the material I can understand why. There is a significant amount of unsworn exculpatory material before me. Mr Bembrick’s report expresses some of the things he said, but he has given his professional opinion in relation to it.

47. I do not think Thomas is yet capable of feeling sorry for the complainant in a true way. The only way he has shown concern for her, and their child has been by the plea of guilty and acceptance of responsibility. He can offer some recompense if he resolves to use his time in gaol and on parole to take every bit of help that will have been offered him to help him change. The proof will be in his actions when released. Thomas has to understand that should he in any way reoffend against any woman or anyone, but any woman in particular, the leniency given today may not be extended to him at least to the same extent in the future. Although it may not be immediately apparent to Thomas, leniency will be extended to him because of his background, his youth his immaturity and because this is his first time in custody.

48. Thomas was born in 1997. He has one child. Prior to this offence he had unstable accommodation and was subsisting on a Youth Allowance. He is a Yuin and Waka man. He has lived most of his life in Wollongong or Nowra.

49. I cannot ignore my own experience of working and living in this community up and down the coast for the last 30 plus years. All the material before me supports a conclusion that your background was marred by instability and trauma. These multiple traumatic events were involved abuse and profound neglect. They were of such severity and pervasiveness, and occurred so early in your life, that they disrupted your development and the formation of a sense of self.

50. Thomas was raised in households where domestic violence and the abuse of alcohol was prevalent. His father was in and out of gaol. He did engage in intervention programs at school and got his School Certificate. For a period, he was able to live in the community and work with some focus. But it appears in recent years prior to the commission of this offence he had no focus whatsoever and used and abused illicit drugs and alcohol. He was not taking responsibility for himself let alone his former partner or their child.

51. The Sentence Assessment Report (SAR) indicates that Thomas still have limited insight into his offending. He used the complainant’s actions as an excuse for his own poor behaviour. The SAR notes his ongoing problems with drugs and alcohol, and ongoing issues with violence. But, while I still have doubts, it does say, that he is willing to undertake intervention, and that he has expressed some remorse.

52. A plan can be put in place both in custody and release to help Thomas help himself, including referral to a general practitioner for a mental health care plan, engagement in domestic abuse programs, going through the EQUIPS program and engaging in behavioural change exercises.

53. The comprehensive report from Mr Bembrick that sets out your personal history. There is no dispute that factors which evidence profound disadvantage and fit the specific categories noted in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58 have been made out.

54. Mr Bembrick says that Thomas has some motivation and wants to engage, but he also recognises he has complex needs because of regular drug use and a background means that he needs a considerable amount of assistance.

46. Thomas’ mother has been able to deal with her own addition problems as she has matured. She now has work and a home which she offers him. He has family up and down the coast who are still supportive and are prepared to provide accommodation for him on release.

47. Mr Bembrick concludes that as a consequence of his dysfunctional home environment Thomas suffered complex trauma, which has had a neuropsychological impact. He has poor emotional regulation, as a consequence there were poor educational outcomes. There is evidence to support the conclusion he suffers associated depression and anxiety. He struggled with relationships, and until he masters himself, he will not be able to be of any assistance to anyone else.

48. Thomas will need therapeutic intervention and support programs. They will need to be strictly supervised. Mr Bembrick suggests an intensive correction order, but that is just not available. On release he should continue to engage with people such as Mr Maurer and Koori support groups.

49. Mr Maurer indicates the work that he did do before he stopped engaging with that program, and as a consequence his behaviour deteriorated.

50. I cannot give Thomas the benefit of showing much remorse other than the practical remorse that his pleas indicate. He says things to others, but it is hard for me, in fact impossible for me, to really understand whether he means it or not. But he will have to learn, or he could spend the rest of his life in gaol. Obviously, people should be concerned about that, of more concern is that if you return to gaol, it will probably be because he has hurt someone else.

Structure of sentence

60. Thomas will need intervention, supervision, monitoring, psychological treatment, assistance with drug and alcohol, help adjusting to a normal community life. His immaturity and the fact that he will be growing up and maturing in custody mean that a significant finding of special circumstances will be made. He will have to earn release to parole. The minimum term in this case is the very minimum that I believe should be imposed. It reflects the gravity of his crimes and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

61. It is important to note that Bureau of Crime Statistics studies indicate that those who are supervised on parole take longer to commit new offences and are less likely to commit new indictable offences than those released unconditionally: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.

62. It is clear from all the material before me that Thomas will need a multi-agency approach because he cannot do it by himself. If this, it is not done then there is a continuing risk of perpetuating the cycle. Your dad went to gaol, you have gone to gaol, and I do not want any child of Thomas’s to be similarly exposed to such a risk, if at all possible.

Submissions

63. Ms Parkes, for the offender and Ms Kerr, for the Director, have both provided me with comprehensive written submissions, to which they have spoken. Ms Parkes acknowledged the seriousness of the offence, but put appropriate stress on the background and evidence of complex trauma going back to when Thomas was a baby. He is still young, she says, and it is clear that his moral culpability has been compromised by his background, and that he may with assistance change.

64. Ms Kerr asks that I put appropriate weight on a sentence that signals to the community how serious matters such as this are and has an element of specific deterrence; in the hope of getting through to Mr Thomas how serious his crime was and help him understand the continuation of behaviour such as this towards women cannot and will not be tolerated.

Synthesis

65. The effects of profound deprivation do not diminish over time and should always be given full weight. A background such as that suffered by Mr Thomas leaves a mark and has here compromised his capacity to mature and learn from experience. It remains relevant even if there is, as here, repeat offending. Attributing full weight however to such matters does not simply mean mitigation of sentence is required. There are countervailing factors such as the protection of the community.

66. As Basten JA has noted:

“These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency: Hoskins v R [2021] NSWCCA 169 at [4].

67. Change for the victims of domestic violence can only occur when men take responsibility and become part of the solution. As I said earlier, women in particular should not be forced to bear an unfair burden. Victims of serious crimes should not be deprived of the protection which is assumed punishment provides. Courts must avoid the perception that serious violence against women will be treated by the law as a matter of moment.

68. At the same time Thomas but be released, and it must be recognised that a heavy sentence may not reduce the risk that he may offend in the future.

69. Balancing all those matters and giving him the full benefit of his early pleas of guilty I have formulated what I regard as appropriate sentences.

Orders

70. In relation to the Contravene prohibition/restriction in AVO (Domestic) on the section 166 certificate there will be a sentence of imprisonment of nine months. It is a fixed term and part of that that term will be subsumed within the other sentence. That sentence should date from 20 January 2021.

71. In relation to the two indictable matters and taking into account for the s 86 offence, the matter on the Form 1, there will be an aggregate sentence.

For the s 86, Take/detain person with intent to obtain advantage matter and taking into account the Form 1, I indicate a sentence of three years and nine months imprisonment.

For the s 37(1) intentionally choke etc person with recklessness (DV) matter I indicate a sentence of two years and seven months imprisonment.

72. There will be an aggregate sentence of four years and six months. That sentence will commence on 20 March 2021 three months after the apprehended violence order sentence. That aggregate sentence will have a non-parole period of two years and six months which will date from 20 March, making Thomas eligible for consideration for release on 19 September 2023. The balance of the sentence, the parole period of two years, will commence on 20 September and expire on 19 September 2025.

73. The effect of my sentence is a sentence of four years and nine months with the minimum period to be spent in custody before you become eligible for parole of two years and nine months. That is the accumulated sentence. My finding of special circumstances means that Thomas will effectively have two years on parole of the aggregate sentence of four years and six months imposed for the two indictable matters.

74. If you do not work to earn parole you will not get parole, Mr Thomas.

75. I dismiss the backup offences that are on the s 166 certificate.

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Decision last updated: 10 March 2023