R v Tuohy

Case •

[2025] NSWDC 215

•

04 April 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Tuohy [2025] NSWDC 215
Hearing dates: 4 April 2025
Date of orders: 4 April 2025
Decision date: 04 April 2025
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

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

Catchwords:

CRIME — Domestic violence — Detain for advantage — Aggravated offence — Choking, suffocation or strangulation — Common assault — Stalking or intimidation — Destroying or damaging property

CRIME — Apprehended Violence Orders — Contravene Apprehended Violence Order

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty for some matters — Limited remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence — General deterrence — Form 1 offences — Moral culpability — Multiple offences — Accumulation, concurrency and totality — Aggregate sentences — Crushing sentence — Objective seriousness

SENTENCING — Sentencing procedure — Disputed facts — Findings of fact separate judgment — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction — Mental illness and disorders — Trauma, violence and disadvantage in childhood — Intergeneration trauma — Childhood sexual abuse

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

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

DeSimoniv 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 Prosecutions (NSW) v GS [2022] NSWCCA 65

Heine v R [2008] NSWCCA 61

Jibran v R [2020] NSWCCA 86

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Munda v Western Australia [2013] HCA 3; (2013) 249 CLR 600

Pearce v The Queen [1998] HCA 37; (1998) 194 CLR 610

Peiris v R (2014) 240 A Crim R 114

R v Burton [2008] NSWCCA 128

R v Doan (2000) 50 NSWLR 115

R v Dunn [2004] NSWCCA 346

R v Herring (1956) 73 WN (NSW) 203

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v Newell [2004] NSWCCA 183

R v Palmer [2005] NSWCCA 349

R v Speechley [2012] NSWCCA 130; 221 A Crim R 175

R v Windle [2012] NSWCCA 222

Ryanv The Queen [2001] HCA 21; (2001) 206 CLR 267

Sampson v R [2025] NSWCCA 25

Suksa-Ngacharoen v R [2018] NSWCCA 142

The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 (2016) 91 ALJR 131

Tukuafu v R [2024] NSWCCA 84

Usaia v R [2023] NSWCCA 57

Category:Sentence
Parties: Dean Michael Tuohy (the offender)
Public Prosecutions (NSW) (Crown)
Representation:

Counsel:
D Mulligan (for the offender)

Solicitors:
Morrisons Law (for the offender)
T George solicitor advocate for Public Prosecutions (NSW) (Crown)
File Number(s): 2023/44166
Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the complainant

JUDGMENT – ex tmepore revised

Introduction

  1. On 4 October 2023, Dean Tuohy was committed to this Court for sentence on a number of matters relating to what can be characterised as domestic violence offences committed against his former partner. In 2024 when he came to this Court, he sought to reverse his plea on one count, that of aggravated detain person within intent to obtain an advantage and occasioning actual bodily harm, pursuant to s 86(2) Crimes Act 1900 (NSW), Sequence 8. That matter went for trial at Wollongong District Court from 21 October 2024. On 25 October 2024 a jury of 12 returned a guilty verdict.

  2. While the matters were committed to this Court for sentence, because of procedural irregularities a separate indictment was presented, and the sequences were then reformulated as counts. But the full discount for the plea has to be given to the offender, with the exceptions I will refer to later

  3. All matters were adjourned to today for sentence. I am also asked to deal with a breach of an Apprehended Domestic Violence Order (‘ADVO’) that came to the Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate, Sequence 9. There are also matters on Form 1s; for Sequence1 / Count 1 – Sequence 17; and for Count 3 / Sequence 16 – Sequence 3.

Chronology

  1. Dean Tuohy was born in 1996. He has appeared before the Children’s Court in Victoria. He has been before courts in Queensland. He has been before courts in New South Wales, including for domestic violence offences in 2020. A Community Correction Order was imposed on him on 6 April 2021.

  2. In April 2021 he went into custody. In February 2021 he was granted parole. In July 2022, it appears he met, formed a relationship with, and moved in with, the complainant in this matter. She was then aged 38, about 10 years older than him.

  3. The first matter, Sequence 17, is an act of intimidation which occurred on 2 August 2022. Sequence 1 occurred on 5 August 2021. There was an event on 12 August 2022 which led to Sequences 3, 15 and 16. On 4 September 2022 there was an offence of reckless damage to property and the matter which came to trial. On 5 September 2022 there was the offence relating to a matter that was dealt with in the Local Court. The Local Court placed him on an ADVO. Sequence 9 relates to a contravention of that Order; which was breached the following day.

  4. On 8 September 2022, the offences which are made up of Sequences 11, 12, 13 and 20 occurred.

  5. On 13 September 2022, Tuohy was arrested for contravening the ADVO. On 16 October 2022, he was released to an Intensive Correction Order (‘ICO’) for offences of common assault and intimidation, relating to the same complainant.

  6. On 14 October 2022, he was arrested and ultimately sentenced for an offence of assault occasioning actual bodily harm, contravening an ADVO and intimidation. He has been in custody ever since.

  7. The formal arrest for the matters that I am dealing with today did not occur until 9 February 2023.

  8. The non-parole period of the sentence imposed on 14 October expired on 13 March 2023.

  9. The ICO could not be reinstated by the State Parole Authority because he was bail refused in relation to this matter and could not comply with the necessary conditions.

Charges for sentence

  1. The formal charges for sentence relating to the guilty pleas and the trial matter charged are:

  • Sequence 1, on 5 August 2022 at Kiama is charged pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW).

  • Sequence 15 is another charge of intimidation on 12 August 2022 at Kiama, pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act.

  • Sequence 16, intentionally choke with recklessness, is said to have occurred between 12 and 13 August 2022, s 37(1) Crimes Act.

  • Sequence 6, recklessly damage property, windscreen of a motor vehicle, occurred on 4 September 2022, s 195(1)(a) Crimes Act.

  • The trial matter, the s 86(2)(b) Crimes Act matter, occurred on that day as well, 4 September 2022.

  • Sequence 11 is a common assault, s 61 Crimes Act. It occurred at Dapto on 8 September 2022.

  • Sequence 12, intimidation with intent to cause fear, another s 13 matter, occurred on 8 September 2022 at Koonawarra, s 13(1) Crimes (Domestic and Personal Violence) Act.

  • Sequence 13, recklessly damage property, another s 195(1)(a) Crimes Act matter, occurred on 8 September.

  • Sequence 20, charge of common assault, s 61 Crimes Act, occurred on 8 September 2022. That matter was subject to a disputed facts hearing today.

  • There was a further matter of contravening a prohibition and restriction in an ADVO, s 14(1) Crimes (Domestic and Personal Violence) Act, that occurred on 9 September 2022.

Maximum penalties

  1. The following maximum penalties apply:

  • Aggravated detain for advantage, s 86(2)(b) Crimes Act, carries a maximum penalty of 20 years imprisonment.

  • Intimidation s 13(1) Crimes (Domestic and Personal Violence) Act carries a maximum penalty of 5 years and 2 years if dealt with in the Local Court.

  • Intentionally choke, s 37(1) Crimes Act carries a maximum penalty of 10 years imprisonment.

  • Reckless damage to property, s 195(1)(a) Crimes Act , carries a maximum penalty of 5 years imprisonment.

  • Common assault s 61Crimes Act carries a maximum penalty of 2 years imprisonment.

  • Breach of an ADVO, s 14(1) Crimes (Domestic and Personal Violence) Act, carries a maximum penalty of 2 years imprisonment.

  1. Maximum Penalties are important guides to the exercise of the Court’s discretion. They convey Parliament’s view of the relative seriousness of the offences.

  2. Common assaults and intimidation are generally dealt with in the Local Court, even in matters as serious as the matters before me. Where matters came to this Court because they were linked to indictable matters a judge should not go behind the decision to send the matters to this Court except to note that it was entirely appropriate that they all come up to the Court together. But although they came to this Court I can take into account that the cap on the maximum penalties that applied if they had been dealt with in the Local Court: R v Palmer [2005] NSWCCA 349 at [14]-[15]; Bonwick v R [2010] NSWCCA 177 at [43]-[45]; Peiris v R (2014) 240 A Crim R 114 at [85].R v Doan (2000) 50 NSWLR 115 at [42].

Form 1s

  1. When I sentence for the principal offences, Sequence 1 and Sequence 3, I take into account the matters which are on the Form 1A under s 33(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW). I do not sentence for those offences; I apply the principles set out by the Court of Criminal Appeal in the guideline judgment: 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 at [39]-[42].

  2. I must recognise the need for personal deterrence and retribution in the crime for sentence. Those matters also give context to what occurred. They show that the principal offence was neither isolated nor aberrant but part of an ongoing course of conduct: Tukuafu v R [2024] NSWCCA 84 at [129].

Guilty pleas

  1. The pleas of guilty to all but the aggravated detain matter were entered in the Local Court. For all but Sequence 20, where facts were disputed, the offender is entitled to, and will receive, a discount of 25% for the otherwise utilitarian value of the sentence.

  2. That he pleaded not guilty to the trial matter means that he loses the opportunity for that utilitarian reduction, and I can give him no reduction for remorse for that matter – there being no expression of remorse.

  3. Sequence 20, the disputed facts matter, I resolved against the offender today: see separate judgment. Given that finding Tuohy loses some benefit for that plea: s 25F(4) Crimes (Sentencing Procedure) Act 1999. In that matter the complainant had to come to Court. While she was cross-examined on one aspect of the events that day, she was still, as was at trial, attacked on her credit and credibility. There was considerably more Court time spent on it than had it been resolved without the disputed facts. He still gets some benefit for the utilitarian value of the plea; I will allow 10%.

  4. There is a recent decision of the Court of Criminal Appeal that says that percentages should specifically accord with s 25 Crimes (Sentencing Procedure) Act 1999 discounts such that it is necessary to express indicated sentences in terms of weeks and days: Sampson v R [2025] NSWCCA 25 at [49]. I note that that decision conflicts with other practice and other authorities: Usaia v R [2023] NSWCCA 57 at [41]; Akkawi v R [2012] NSWCCA 11 at [110]-[111]. I will comply with the older decisions, and where necessary, round to the offender’s advantage. Sentencing should never become subordinate to arithmetic equations.

Facts for sentence

  1. With the exception of the trial matter, there are Agreed Facts for sentence. The disputed paragraph is included in the facts document. And, as I have said, I have found against the offender in relation to that matter. Given the hour, and it being late on a Friday, I will try and summarise the facts as best as possible.

  2. The complainant, then 38, met the offender in July 2022. They commenced a relationship. They lived at the complainant’s rented property in Kiama.

  3. On 22 August 2022, she received demands from the offender wanting to know where she was and why she had not picked him up. His words were abusive. She drove to meet him, but she stayed in the car and locked the door. He walked towards her in an aggressive manner. He then abused her, tried to open the door, punched the passenger door. She would not open the door saying she was scared. He demanded she do so. Eventually she unlocked the door and let him in, and he used a number of abusive terms to her. That is Sequence 17, the matter on the Form 1.

  4. On 5 August 2022 they were at a friend’s home in southern Wollongong. Something that occurred angered the offender. He told her to stop treating him like a “gronk”. He called her a “slut” and a “whore”. He kicked at the glovebox of her car cracking the plastic. He kicked around inside the car and then during the drive said, “You’re lucky I don’t knock you out, you’re a mouthy cunt for someone who can’t punch on”. Sequence 1, an offence of intimidation.

  5. When they got home the offender stormed inside the premises. The complainant stayed in the car as she did not feel safe. She eventually left and went to a friend’s house. Later when she returned home the offender tried to apologise to her.

  6. On the evening of 12 August 2022, the pair were at home in Kiama. Marijuana was smoked. There was discussion about photos on Snapchat. He demanded to know who she was speaking to on Snapchat. He kept saying, “I’m burning on this, you’re a dog, you’re a mutt and a liar”. This behaviour continued for some time and began to escalate with him becoming more and more verbally abusive. He stood over the complainant while she was lying on the bed and yelled at her. He continued to accuse her of lying about the Snapchat messaging: Sequence 15.

  7. He was pacing in the kitchen of their home. He took a 1.25 litre plastic bottle out of the fridge and threw the contents over the complainant. He then threw the plastic bottle which struck her on the forehead. She responded, “What the fuck was that what the fuck is wrong with you?”: Sequence 3 on the Form 1.

  8. After the bottle incident she lay on her bed. The offender grabbed her around the throat. He knelt next to her squeezing her throat. She could not breathe. As his grip became tighter, she screamed at him. She tried to hit his hand away, but he was too strong. She started to panic. She thought she was going to die. Her vision went blurry, she could not breathe, he felt like his pressure was crushing something in her neck: Sequence 16, intentionally choke with recklessness. Suddenly she could breathe again. He had let go. He started apologising immediately saying, “Fuck sorry, sorry, you’re making me go mental over you, you’re doing this to me”. She was in shock. The offender went quiet and then continued to apologise.

Events of 4 September

  1. On 4 September 2022 in the afternoon the two left their home in Kiama to drive to Wollongong so the offender could buy cannabis. The complainant was tired of driving him around. There was an argument. They also argued about money. While they were driving the offender put his feet on the dashboard and kicked the inside of the windscreen of the car causing it to crack: Sequence 6, reckless damage.

  2. What occurred thereafter was ventilated at trial. It is clear from the issues the jury were asked to determine and their guilty verdict, that they accepted the account given by the complainant. The following account comes from her evidence at trial: Trial Tcpt, 22 October 2024, pp 10 to 33.

  3. She told the jury on that day things at home were volatile. At the time he was not letting her go to work. They were arguing because they did not have any money, and she was behind in the rent. There was a dispute about petrol and money and available money for purchasing cannabis. He called her a “dumb cunt” and a “mutt”. It was at about that point in the journey that Sequence 6 occurred. After that he continued to scream at her. She tried to get him to catch a train home. He screamed at her to “drive”. At one time he put his hand on the steering wheel. She was so concerned that she dialled Triple 0. She left the phone line open. A recording of that call was played at trial.

  4. He got out when they got to Wollongong. When he came back, he had calmed down; she assumed because he had smoked some pot. They then drove back towards Kiama. They stopped at a car park so she could make phone calls. He wanted her to try and get methylamphetamine on ‘tick’ from people she knew. She started driving south along the Shellharbour Road towards Windang. She told the jury he was getting worked up and angry. He was calling her a “mutt”, a “whore” and a “liar”. He punched her to the left side of her cheek. She slowed down. He said if she stopped, he was going to “kill her”. She stopped the car on a straight and wide road in the Windang area. He said, “Keep driving”. He grabbed her hair and slammed her head into the driver’s window. She told the jury she was terrified. She said she thought, “he was going to kill me”.

  5. She opened the door and ran into the road, which is three lanes each way. She said, she put up her hands, toward oncoming cars but no one stopped. They slowed and drove around her. She said she was so scared she wet her pants. He then left the car, walked into the road and grabbed her. She said when he grabbed her it “really hurt”. He dragged her back to the car saying, “Get back into the car cunt”. He told her he was going to kill her when they got home and / or that he was going to kill her if the cops came. He threw her into the car.

  6. The detention started from the point he dragged her to the car and threw her into the car. She was scared of him. She had pain in her upper left arm and shoulder. She said it “really hurt”. She thought at the time he had “broken [her] arm or something”.

  7. She then drove south. She was wondering how she was going to get out of her predicament. She saw a service station. She pulled over and jumped out of the door of the car and ran into the shop. It is at this point when she had escaped the car that the detention ends.

  8. She said to the man at the counter, “Call the police, he’s going to kill me”. At this time, she said she was not thinking clearly. The man in the service station gave her a phone. She called Triple 0, the recoding of which was Exhibit D.

  9. Before the police arrived, she got back into the car and drove away. He was not in the car park at that stage. But he was nearby. They made contact. She picked him up and they returned to their home. The police came soon after, but nobody answered their knock.

  10. The following day there was another incident between the two. The offender was arrested, charged and taken to the Local Court. This led to the other Local Court proceedings. The police applied for, and the Court granted, an ADVO protecting the complainant.

  11. At 12.45pm that morning after the Court Order was made the complainant met the offender at a local railway station. They caught a train to Kiama and stayed at her home. This was in breach of the order made only hours or an hour earlier: Sequence 9.

8 September incidents

  1. On 8 September 2022 the complainant and the offender were in Dapto at the local mall. They argued. At one stage the offender said to the complainant, “You fucked everything, we missed the train”. He then left taking her phone. She screamed at him wanting her phone back. He called her a “mouthy slut”. He then ran at her foaming at the mouth. She started screaming. He was screaming that he was going to “bash” her. A man standing nearby intervened, saying, “Hey what the fuck’s going on?”. Other men came from a local hotel to ask the complainant if she was alright. The offender turned and ran away.

  2. One of the males assisted the complainant to get a taxi, but the complainant directed the taxi driver to go to where the offender had run to. As he was picked, he said, “I’m gonna kill you, you mutt you whore, we’re done”. The driver took them to a railway station. As they were walking through the gates the offender said to her, “You’re a dog you set me [up]”. She said, “Fuck off I’m done with this, fuck off”.

  3. Station staff yelled out that they had called the police. Despite this, the offender followed the complainant, screaming at her, “We need to get out of here, I’m not going to gaol over you, cunt”: Sequence 12.

  4. They crossed the road towards the local Leagues Club. He grabbed her from behind and pulled her back. She twisted her foot. He was still screaming at her. He pulled her towards Dapto Railway Station. They saw a friend and she drove them to other premises. During the journey, he continued to scream at her.

  5. The abuse continued when they reached a friend’s home. He continued to abuse her, at which point she left and went and sat in the driver’s seat of the car. She locked herself in. He came out to the vehicle. He was yelling at her, “Look what you’ve done you’re a mutt”. He tried to open the door, but it was locked. He laughed and threatened to kill her. He said, “Open the door”. She was so fearful she wet her pants. She could not start the car.

  6. He kicked the driver’s door panel and the driver’s side rear passenger door. The force of his kicks caused the vehicle to move back and forth; panels were crushed: Sequence 13.

  7. The complainant begged him to stop. He screamed, “Open the door or I’m going to smash every window”. She was crying, but she did unlock the door. He ripped the door open; he punched her to the top of her head while pulling her hair with his other hand. She was screaming and he let go. He then spat directly into her face. He then pulled down the top of his drawstring shorts, took out his penis and urinated on her while she was seated in the driver’s seat of her vehicle. He sprayed his urine around. It wet her clothing. When he had finished, he said, “I’m don’t with you. I hate you mutt” and walked away: Sequence 20 (disputed facts resolved against offender): see separate judgment.

  8. I note that in my earlier judgment, I made a factual error about her evidence of wetting her pants. She did say that in her police statement. The error had no consequence.

A proportional sentence

  1. A sentence must be proportionate to what was done. That requires I assess the objective seriousness of each offence. Such an assessment is essential to setting the parameters of the sentence to be indicated and the appropriate sentencing outcomes.

Choke

  1. To choke someone means to “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head”: GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65. Any choking is inherently serious, and this offence was a serious example of its type, even though it only occurred for a relatively brief period.

  2. Given the risks inherent from any interference with breathing or blood flow, its actual impact must be considered. I must also take into account the form, grabbing of the neck, that is, all of the physical acts that led to the event. There was no loss of consciousness here, and it was only brief, but she felt she was going to die. At that level the psychological impact of the offence has to be considered; it was extreme. There was obviously associated anxiety, which she described as “panic”.

  3. The context here is important. It was a domestic violence offence. Here, he stopped suddenly and thus voluntarily desisted, but his subsequent apology had no value to her or this sentencing exercise.

Detain for advantage

  1. There were two matters of dispute during the hearing. Context is important. I have resolved the period of the detention: See 34 and 35 above. Tuohy is sentenced for the detention itself, that is, from the point that he grabbed her in the road until she left the car at the service station where she had entered and was given refuge and safety.

  2. It was also submitted by Touhy that the fact the complainant was a driver was a significant fact that differed from other cases of a similar nature: Ball v R [2013] NSWCCA 126; Jibran v R [2020] NSWCCA 86. There is no issue that she was a driver, but I accept the Crown’s submissions; the fact she was a driver does not moderate the offending in any way. The impact on her, the impact on her as a driver, did not reduce the objective seriousness of the actual detention. In some respects, it worsened it because she was under considerable stress while driving at his direction.

  3. The disputed issue is of only marginal significance compared to the other matters; being the threat and the level of violence. The best that can be said is, as she was a driver, she was able more easily to reach a point of safety than if she had been a passenger.

  4. The concept of advantage in s 86(1)(b) Crimes Act is interpreted broadly. It includes, here, psychological gratification or satisfaction: R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [185].

  5. Relevant principles in detain for advantage matter involving both domestic violence and driving were helpfully set out by Justice Johnson in Jibran v R. He applied principles derived from R v Newell [2004] NSWCCA 183 and R v Speechley [2012] NSWCCA 130.

  6. I have to consider, the circumstances of the detention, the circumstances of the person being detained and the purposes of detention.

  1. A very relevant factors here is that the offence occurred in a domestic violence context: Heine v R [2008] NSWCCA 61 at [40]. That fact does not diminish its seriousness. To the contrary, significant weight must be accorded to general deterrence and denunciation.

  2. The offence did form part of a pattern of violence towards the complainant. He acted towards her in a controlling and violent way. He demonstrated a sense of misplaced entitlement, commonly occurring in domestic violence offences: R v Burton [2008] NSWCCA 128 at [95].

  3. The period of the detention was relatively short, but it was the complainant who brought her detention to an end by parking and running away: Allen v R [2010] NSWCCA 47 at [22]. The circumstance of her escape involves an irresistible inference that she was very fearful, as she had been before she was dragged back to the car: Bott v R [2012] NSWCCA 191.

  4. The decision to detain her in the first place appears to have been impulsive. It may have been affected by his ingestion of drugs, but drug use does not mitigate: Crimes (Sentencing Procedure) Act, s21A(5AA).

  5. Before the incident he manhandled her and struck her, causing her injury. Photographs of the bruising were put before the Court at trial. I note that is an element of the offence and should not be double-counted.

  6. His advantage was to scare her into submitting to his control.

  1. It was a serious example of its type.

Intimidation

  1. In these matters I have to consider the level of fear the words caused the complainant. She may have been stoic, she may have wanted, as she did, to preserve the relationship, but in my long experience this is not at all unusual for women subject to violence, who wanted to preserve what she believed was a loving relationship. She tried to focus on the good things and put aside the extreme and negative aspects in their relationship, including violence. That does not mean these matters did not cause her anxiety and distress. Further some of the incidents occurred in her home.

Common assault

  1. The level of violence is a matter that has to be taken into account. So too the demeaning nature of the acts. In particular Sequence 20, which involved a hit, a spit and urination.

  2. I accept the Crown submission that Sequence 20 falls into the worst case for a matter such as this. But I do not start with that finding and then oscillate around it, there are other factors that have to be taken into account: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [54].

Domestic violence offences

  1. As is obvious, all of these matters were domestic violence offences. Generally, for good reasons, the courts take a very dim view of domestic violence offences. What follows is not meant to say I have double counted that aspect, but to summarise what was taken into account in relation to each of the offences.

  2. The courts recognise there are special dynamics to domestic violence offences. The courts recognise that no-one should stereotype either victims or offenders; relationships are complex. No-one should be blamed for continuing in a relationship where violence is present. To the contrary, it is sometimes the existence of violence that leads to fears that mean that people cannot break off a relationship. Victims sometimes have a belief that the offender may change; sometimes they do, but courts see the cases where they do not. I am prepared to accept the offender himself believed that things would get better and change. There were obviously good things in the relationship, and both sought benefit from it. But there are also significant negatives.

  3. Because of the number of charges here and their context it is obvious that matters before the Court were part of a larger picture of physical and mental violence. Subject to the principles set out by the High Court in De Simoniv The Queen (1981) 147 CLR 383, I can view each offence for sentence as part of a series of multiple acts all with one purpose; that is the exercise of power and control by the offender over the complainant: R v Burton at [97]; The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 (2016) 91 ALJR 131.

  4. Crimes such as these are treated with real seriousness because domestic violence is unacceptable behaviour, as the offender himself recognised in his evidence today. Proper recognition must be given to the real harm crimes such as this do the complainants and the community in general. Denunciation is required because domestic violence offences involve, as here, an exercise of coercive power and control over the complainant. At times it appears, as was clear from the evidence before me, that the offender believes that they are justified in what they were doing or that they themselves are the victim of manipulation by the complainant. Such views must be condemned.

  5. The offender refused to accept responsibility for two of the matters for sentence While he is not punished for going to trial or putting matters in dispute that continued refusal to accept responsibility involves a continued threat to the complainant. Even where an offender admits and apologises it is recognised that a complainant may never truly feel safe and fear that they may again in the future be personally targeted: R v Dunn [2004] NSWCCA 346. Those matters require courts give particular weight to principles called specific and general deterrence or retribution.

  6. All these matters commonly, and do here, require custodial penalties. This can, however, create a dilemma. Community protection supported by growing community perceptions demand that men who assault or intimidate women be punished severely. This requires, in many cases and in this case, that a person be gaoled. Gaol can create a significant negative attitude to women. Gaols are intrinsically violent places. Men in gaol are often there because they do not have positive interactions with or consideration for others. Men in gaol are there because they often lack empathy for others and understanding of their behaviour.

  7. There is evidence before me that I am prepared to accept that the offender’s father was a violent man; violent to Tuohy, violent to his partners. He adopted some of his father’s attitudes and, I suspect, learnt some more negative attitudes to women by spending time in gaol.

  8. I first started working in gaols in 1977 as a law clerk, I have come to know that terms such as “mutt”, “dog” and “gronk” are gaol speak. And those words, I suspect Tuohy learnt when he was a child, were repeated in order to denigrate the complainant in this matter.

  9. Locking men up in gaol may prevent them offending against women while they’re in custody, but that itself is not the solution to both the individual problem posed by Tuohy, and offenders more generally, as he must be released into the community.

Breach of an ADVO

  1. The criminality of breaching an ADVO rests in the disregard for the Court Order. Here that Order was made only an hour or so before it was breached. Such breaches practically affect and undermine the authority of courts, they prevent effective protection being given to people at risk.

  2. The authority of the courts cannot be ignored. If it is ignored, as Tuohy did, then the authority of the courts and the law and the police are diminished, as is our capacity to protect vulnerable individuals. Even in cases where contact is made by the complainant herself, the courts treat these matters seriously. Breaches require, subject to totality principles, additional time in custody solely for the breach: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132]; Pearce v The Queen [1998] HCA 37; (1998) 194 CLR 610; Cherry v R [2017] NSWCCA 150.

Reckless damage to the car

  1. Unless you are lucky enough to own a home, a motor vehicle is generally the most expensive and valuable item a person can own. To have your car damaged means not just financial loss, but the loss of the ability to move freely about the community. Not all vehicles are insured and, even if they are, repair costs lead to higher premiums that are passed onto individuals and the whole community. Here, by the end of this episode, the complainant had lost her car. These are not an insignificant offences.

Brief summary of seriousness

  1. Assessment of objective seriousness is, and has always been, a critical component of the sentencing process:  Campbell v R [2014] NSWCCA 102 at [27]. In brief summary:

  2. Sequence 1, Count 1, intimidation – Was a serious and demeaning event which required a custodial sentence.

  3. Sequence 15, Count 2 – Involved a serious and demeaning event.

  4. Sequence 16, Count 3, intentionally choke – Occurred over a short period of time but she feared for her life. It is a serious example of its type.

  5. Sequence 6, Count 4, reckless damage, the crack in the windscreen – Was a thoughtless, dangerous act. It requires a short custodial sentence.

  6. Sequence 8, the trial matter – Given the matters I have outlined and the bruising which appears quite severe, the public nature of the detention, the fact he ignored her distress, the fact that he exercised such dominion over her for the period of the journey, all require a custodial sentence of some length, particularly given the context, to which I have already alluded.

  7. Sequence 11, Count 5, common assault – She was grabbed and pulled. It was relatively minor, but context is given by Sequence 12.

  8. Sequence 12, Count 6, intimidation – It was a serious example involving a threat to kill and a high level of fear was generated.

  9. Sequence 13, Count 7, reckless damage – Effectively, all the panels were smashed and considerable damage to the complainant’s car was caused. Again, calls for a custodial sentence.

  10. Sequence 20, common assault – I agree with the Crown submission that this assault was so demeaning it fell in the worst case category.

  11. Sequence 9, the 166 certificate – I have already explained why that requires a custodial sentence and some additional penalty.

Other factors

  1. The trial was conducted expeditiously. There were Agreed Facts put before the jury. They covered most of the plea offences: Trial Exhibit A. They reduced the length of the trial considerably. They avoided the need for the complainant to give this evidence. The Crown relied upon these Agreed Facts to establish the uncontested tendency point and context evidence led at trial. These matters require some reduction in penalty to reflect what was, in context, some degree of assistance to the administration of justice facilitated by the defence: Crimes (Sentencing Procedure) Act, s 22A.

  2. That said, the complainant still had to give evidence. She was subject to cross-examination during which her credibility and believability was tested.

Victim impact

  1. In her Victim Impact Statement, which was read to the Court today, the complainant told me and the Court and the offender how “these crimes tore apart every aspect of her life" – her home, her car, her relationship with her family. They took away her self-worth and dignity. She noted that she had welcomed the offender into her home, but he turned it into a place where she feared to be. She spoke of the terror she experienced. As a consequence of these offences, she lost her rental property; she has been homeless for a lengthy period. She effectively lost all of her possessions.

  2. She spoke of increased isolation and hypervigilance, nightmares and unrelenting symptoms. She has been diagnosed with Post-Traumatic Stress Disorder. She says she has lost her ability to trust. She said the relationship with her parents has changed and they still struggle to understand why she could not leave. But more importantly, she has learnt to focus not on criticising herself, but continuing to ask herself the question “why did he do it?”. She noted how “humiliating” this matter was and how humiliating it still was to her. She expressed her distress at having to return to this city to relive the experience and confront him, both at trial and again today.

  3. This statement attests to the personal harm suffered by her as a direct result of the offences and includes mention of economic loss she suffered. I have no difficulty accepting what she said. What she said serves the very practical purpose of drawing to the offender’s, the Court’s and the community’s attention the personal harm caused by offences such as this.

  4. The Crown made the submission the offences were each aggravated by the harm being substantial. I cannot accept the submission. In part because it would require me to parse each offence and the harm done because it is the offences themselves which are aggravated not the overall totality of the offending.

  5. Also, sadly, what she said reflects what is commonly said by complainants who suffer from offences such as this where they were personally targeted. That they were both drug users is not a matter that concerns me, it was Tuohy’s violence that was of concern to the Court. It was the principal source of any dysfunction in their relationship.

  6. I cannot ignore the impact of the trial and the sustained attack on the complainant’s credibility, which continued until today. It may be some comfort to her that she was believed by the jury and by me.

Offender’s criminal history

  1. Tuohy has a prior criminal history. That history cannot result in a sentence which is disproportionate to the gravity of his offending. But here, it requires greater weight be given to matters that point in both directions. It requires some additional focus on deterrence and protection. The community will be protected while he is in custody, but that, as I have said, can only have limited temporal impact. He should be deterred from committing further offences. He says he has been. This assertion will have to be tested in the community.

  1. It also requires consideration be given to his rehabilitation. He is not to be punished for his history.

Commencement date

  1. Tuohy served sentences for other offences against the complainant from 14 October to 10 March 2023. As a consequence, an Intensive Corrections Order (ICO) was breached. He was not able to enter into that ICO because he was bail refused for this matter.

  2. I will discuss shortly principles relating to totality. But in all the circumstances I propose to commence this sentence on 9 February 2023.

Case for the offender

  1. Tuohy gave evidence today. He said he was sorry. He said that what he did was “unacceptable” and “not okay”. He was “saddened”, he said, to hear, when the Victim Impact Statement was read, about the negative impact of his behaviour. He had trouble, I believe, actually understanding from his appearance online the impact on the complainant herself, but that is partly the product of this being an online hearing.

  2. He said he needs to focus on himself, and that is true. He has to learn from this experience. He accepts he has hurt someone. He said he learnt as a child how to hurt someone to get what he wants.

  3. He says that he has been able, while on remand, to stay away from drugs and alcohol with the help of the Buvidal Program.

  4. He adhered to an affidavit which he swore earlier. In the affidavit he accepted responsibility for his actions. But he did not, as the facts of these proceedings make clear, take full responsibility in relation to two of the more serious aspects of his offending; he fought to the bitter end.

  5. I cannot accept a submission made by his counsel that there was deep and meaningful remorse and insight. At best I can detect a degree of remorse; that come from the offender’s plea, and he said the right things in his evidence and his affidavit. He has some insight into what he needs to do to address his behaviour, particularly when it comes to future relationships, his drug and alcohol use, and underlying mental health problems.

  6. He has demonstrated a willingness to engage in offence specific treatment to reduce his risk of future domestic violence offences. I accept his evidence that he wants to change, but that all comes too late to provide any solace to the complainant.

  7. I accept his evidence that he has spent time locked in cells during COVID-19 and other lockdowns. That is an additional hardship I will take into account. Judges do not ignore the lived experience of gaol. The community has to understand that when a person is locked down, they are kept in a very small room, often with one or two other people and a toilet. When they are locked down, they eat in that room with those other people and that toilet.

  8. He tells me he has set “some goals for himself”. Having a motivation to change is important. He needs to keep taking his buprenorphine, he is working, he accepts he will need drug and alcohol treatment and a mental health care plan. Motivation is an important factor in rehabilitation and prevention of future crimes and hopefully the protection of further women from him. Care needs to be taken when structuring a sentence that the length of the sentence not “crush” or undermine his motivation.

  9. I am helped, as always, by a report of a respected psychologist, Ms North. Her report of 28 March 2025 at par 36 noted that, Tuohy revealed a “dysfunctional family upbringing” characterised by his childhood “domestic violence, physical abuse” and substance abuse within his home environment in addition to an early onset of attachment issues.

  10. Mr Tuohy also disclosed having been “sexually abused at the age of 13” and identified this traumatic experience had contributed to the onset of alcohol and drug use from early adolescence. At par 36 of her report:

“It was my opinion Mr Tuohy’s history of attachment issues and exposure to trauma from a young age had also contributed to his difficulties in managing emotions, in addition to impacting on his ability to maintain healthy relationships as an adult.”

  1. A reference provided by a social worker from Victoria (who had dealt with him when he was a young child) corroborated the history that had been given and the basis in the report for those findings.

  2. His personal history is set out in his affidavit and Ms North’s report; it is uncontroversial, but sad. He was born in 1996. His mother had drug and alcohol problems. He spent most of his time living with his father in Victoria, but his father spent time in custody. He spent time then living with his grandmother. The family moved to Queensland for a period. He describes a history of domestic violence in the home and physical abuse by his father. At the same time his father seems to be the main source and the only source of support to him apart from his former social worker and a former employer who also provided a reference.

  3. His schooling was disrupted. There was regular truancy. Ms North suggests at par 15 that “his dysfunctional home environment throughout his youth may also have impacted on his behaviours and motivation towards school”. He also disclosed being sexually abused by a school principal which could not have assisted in his attitude towards schooling. He has recently made a statement in relation to a civil matter, but no verification of that abuse is otherwise available.

  4. He left home at 16. He was often homeless. He took up the use and abuse of illicit drugs, cannabis and alcohol when he was 14. And methylamphetamine and other drugs from the age of 16, far too young a time to be able to make rational choices. Ms North suggests his exposure to drug use through his mother from a young age meant that drug use had been “normalised within his home environment”: par 38. For a period, he got help from Youth Housing, but he has rarely worked, and when he did work, he told her, although he minimised it with me, that he left because of drug use. He has been working while he is in gaol.

  5. He spent time in a mental health unit when he was 20 and he has experienced symptoms of depression and suicidal ideation. He is now on the Buvidal Injection Program. He is trying to do, I accept, any programs offered to him in gaol. He has done, or doing, the remand Domestic Violence Program, preparation pathway for higher studies, TPP, a Certificate II in Skills for Work and the remand Addiction and Anger Management course. I trust that more programs will be made available to him once he has a sentence of imprisonment.

  6. The evidence before me which I will not go into detail, notes that his life has been blighted by child abuse and neglect, incarceration of a parent, childhood exposure to violence, early exposure to drug use, a lack of formal education and homelessness. All these things can manifest as part of an intergenerational cycle of trauma, violence and disadvantage. So too can the childhood trauma of being a victim of a child sexual assault.

  7. Ms North diagnoses the offender as having a Post-Traumatic Stress Disorder and a Borderline Personality Disorder. She suggests too that his substance use issues were also directly related to his underlying mental health issues. At par 26 she says Mr Tuohy also described he experienced symptoms of Post-Traumatic Stress Disorder, which she notes of relevance:

“Mr Tuohy has never engaged in treatment in relation to his history of complex trauma, however presented as motivated towards treatment at the time of assessment and displayed insight into the impact of unresolved trauma and mental health issues on his offending behaviour.”

  1. These findings require consideration and application of the principles raised in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Particularly those relating to moral culpability and reduction of the need for general deterrence.

  2. Ms North suggested at par 40 that Mr Tuohy would also benefit from engaging in an anger management program, whether in custody or as part of his discharge planning into the community. It is also recommended he engage with a psychologist to address his trauma issues and a referral to Victim Services. Her report sets out a possible treatment plan and a copy of her report should go to Corrective Services with the warrant.

Moral culpability

  1. The various matters in Tuohy’s background and history and his associated mental health conditions are all relevant to reduce his moral culpability. Often as here, these matters are inextricably interrelated ergo to moderate the need for general deterrence and to reduce the offender’s moral culpability. But like all sentencing matters they do not all point in the one direction.

  2. Mr Mulligan asked that I give full weight to these matters in understanding how he reacts when dealing with intimate partners, that that reaction as evidenced by the material before me also indicates that if he continues to behave on release, as he did to the complainant in this matter, he will be a continuing danger to any further partner. He recognised that fact in his evidence when he said he does not plan to have relationships at least soon after he gets released.

  3. While Ms North and Ms Oswin point to reasons which require a reduction of the element of general deterrence and full weight being given to what the plurality of the High Court acknowledged in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [40], to be the pervasive impact of profound deprivation, care has to be taken.

  4. There is evidence of “profound” deprivation, although that finding is not strictly necessary for me to take into account the Bugmy principles. It is accepted that where a person’s childhood or adolescence, or both, has been affected by disadvantage, trauma or mental health issues, this can inhibit the development of prosocial values on the acquisition of a moral compass or on the capacity to make behavioural decisions and consequential thinking. Such background may compromise a person’s capacity to mature and learn from experience.

  5. It is clear from all the material before me that although he is 29 years old his capacity to mature and learn from experience has been impacted on by his background. While it will be taken into account in moderation of sentence, I am also acutely aware that if he continues to behave as he did to this complainant, this risk of reoffending raises issues of community protection.

Structure

  1. I am required to impose and indicate an appropriate sentence for each offence. I then have to structure the sentences such that the overall sentence is just and appropriate to the totality of his crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. I need to evaluate, in a broad sense, that overall criminality. I need to adjust the sentences appropriately: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).

  2. There must be some notional accumulation, judges do not simply add one penalty on top of the other. At the same time an aggregate sentence must not give the impression there is a discount for multiple offending against a victim. I also have to have regard to the overall pattern of behaviour and the context surrounding each incident and be careful not to double count matters against the offender.

Special circumstances

  1. Ms North’s recommendations provide a reason to find special circumstances. In addition, I will be accumulating this sentence partially on the Local Court matters.

  2. Tuohy is still immature, and, from his evidence before me, overconfident about his own ability. He needs help in custody. He needs help on release. He needs help stabilising his drug and alcohol abuse problems. He needs help dealing with his psychological problems. He will need help adjusting to normal community life because he has never had much opportunity to live a normal community life. That said, the minimum time he must spend in custody must properly reflect the purposes of sentencing and what he did.

Submissions

  1. I am indebted to Mr George, Solicitor Advocate for the Director and Mr Mulligan for Tuohy who appeared today and at trial for their comprehensive oral and written submissions. In this judgment I have sought to do justice to them and resolve the real issues that were raised by them. The fact that I have not explicitly referred to them does not mean that I have not considered them, I have. I am grateful to both of them.

Synthesis

  1. I have tried to identify all the factors that are relevant to this sentence. I have sought to discuss their significance. I must make a value judgment as to what the appropriate indicated sentences and total sentence should be given all the material before me: Markarian at [51].

  2. It now appears, as Ms North notes at [34] that Tuohy has:

“Displayed insight into the impact of his underlying mental health and unresolved trauma issues and [is] motivated towards engaging in psychological treatment in addition to completing offence specific treatment relating to domestic violence”.

  1. I accept that at the time he was caught in a cycle of substance abuse and offending, and that has been part of the story of his life to date. But drug use and childhood deprivation cannot excuse this criminal behaviour to another human he purported to love and care for. He denied the complainant her human dignity.

  2. Some of the matters I take into account aggravate the penalty, some mitigate. Mitigating factors will be given full weight and other factors remain relevant. Giving weight to the conflicting purposes of punishment is what makes exercises such as this so difficult, and the need to identify all relevant factors is why sentences like this take so long to deliver.

  3. A proper sentence should mark the Court’s view of the seriousness of the crime and crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryanv The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. It should let others know what will occur to them if they commit similar offences. Here, given the nature of the offences, protection of community, that is anyone who might have future contact with Tuohy, and the dignity of the complainant, are of particular importance.

  4. It would be wrong if a court were to accept that a complainant of violence in a domestic context is somehow less in need or deserving of protection and vindication that the criminal law can provide.

  5. The proper role of the criminal law is not simply limited to general deterrence. It has to also consider questions of community protection, that is, encouraging rehabilitation of an offender and providing for them to be supervised and helped when they are released. But ultimately courts, in matters such as this, must attempt to vindicate the dignity of the complainant, a victim of violence on multiple occasions, and to express the community’s disapproval of the offending. We must also try and protect others in the future of repetition of matters such as this. Removal, as I have said, can only have limited utility: Munda v Western Australia [2013] HCA 3; (2013) 249 CLR 600. The offender has to learn, and has to be motivated to learn, to change his behaviour.

Orders

  1. The start date will be 9 February 2023. With the exception of Sequence 8, where there is no discount, and Sequence 20 where there is a 10% discount, there is the utilitarian value discount of 25%. Where I have rounded, I have rounded to the offender’s advantage, I make that clear. That has been easier because I have taken into account s 22A factors.

  2. I indicate the following sentences:

  • Sequence 1, Count 1, intimidation plus the Form 1 – 10 months.

  • Sequence 15, Count 2, intimidation – 8 months.

  • Sequence 16, Count 3, intentionally choke, also includes the Form 1 – 2 years, 1 month.

  • Sequence 6, Count 4, reckless damage – 3 months.

  • Sequence 8, the trial indictment, detain for advantage aggravated – 3 years, 7 months.

  • Sequence 11, Count 5, common assault – 4 months.

  • Sequence 12, Count 6, intimidation – 1 year, 4 months.

  • Sequence 13, Count 7, reckless damage – 8 months.

  • Sequence 20, Count 8, common assault – 1 year, 4 months.

  • Sequence 9, 166 certificate, contravene ADVO – 3 months.

  1. The term of the sentence is 6 years and 3 months. The non parole period is 3 years and 6 months. It will commence on 9 February 2023, making Tuohy eligible for release to parole on 8 August 2026. To give effect to special circumstances finding including the accumulation there will be a balance of the term of 2 years and 9 months which will commence on 9 August 2026 and expire on 8 May 2029.

  2. Release to parole will be subject to an order from the State Parole Authority. They will not release the offender unless their statutory obligation to consider community safety has been satisfied: Crimes (Administration of Sentences) Act, s 135.

  3. The report of Ms North is to go with the warrant.

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Decision last updated: 13 June 2025

Cases Citing This Decision

0

Cases Cited

38

Statutory Material Cited

5

Akkawi v R; Akkawi v R [2012] NSWCCA 11
Allen v R [2010] NSWCCA 47
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518