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

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.
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.
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.
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.
There is also a summary matter for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thomas

Details

AGLC: R v Thomas [2021] NSWDC 839
Case: [2021] NSWDC 839
Decision Date: 12 November 2021

CaseChat Overview and Summary

The case of R v Thomas involved the defendant, Thomas, who faced multiple charges related to domestic violence, including taking and detaining a person with intent to obtain an advantage, causing actual bodily harm, and contravening an apprehended domestic violence order. The matter was heard in the Supreme Court of Victoria. Thomas pleaded guilty to the charges, and the court was required to determine an appropriate sentence.

The central legal issues were the gravity of the domestic violence offences, the breach of an apprehended domestic violence order, and the mitigating factors that could influence the sentencing. The court considered the early guilty plea, the defendant's deprived background, and the need for significant assistance to address his behaviour. It also emphasised the importance of recognising the role men can play in preventing domestic violence and the inefficacy of harsh punishments without support and rehabilitation.

The court found the offences to be serious, but also recognised the mitigating factors that warranted a degree of leniency. Thomas's early guilty plea and deprived background were considered in his favour, as well as the potential for rehabilitation. The court acknowledged the need for a sentence that would not only punish but also provide an opportunity for the defendant to address the underlying issues contributing to his offending behaviour. The final sentence imposed was an aggregate term of 4 years and 6 months, with a non-parole period of 2 years and 6 months.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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