R v Thompson

1. [1]

   BELL CJ: Domestic violence is a scourge that afflicts modern Australia. Regrettably, this is not a fresh phenomenon. In a decision given almost 20 years ago, Johnson J, sitting as a member of this Court, surveyed cases over the previous decade highlighting the issue: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [67]-[88]. Thus, for example, in R v Devine (Supreme Court of Tasmania, 5 July 1993, unreported), Underwood J had said:

2. [2]

   Apprehended Domestic Violence Orders (ADVOs) were first introduced in New South Wales in 1982 as part of the Crimes (Domestic Violence) Amendment Act 1982 (NSW), which was a response to the 1981 Taskforce on Domestic Violence: see G Griffith “Domestic Violence: An Overview of the Legislative Changes in NSW” (NSW Parliamentary Library Research Service, Briefing Paper No 18/95, May 1995).

3. [3]

   In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]:

4. [4]

   In 2013, the High Court addressed the issue of domestic violence in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[55] in which the plurality observed:

5. [5]

   By 2016, the High Court was able to observe that “current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations”: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21].

6. [6]

   This Court has routinely decried the commission of crimes of domestic violence and advised that it “must be dealt with sternly by the courts, to mark society’s strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner”: Yaman v R [2020] NSWCCA 239 at [131].

7. [7]

   In R v Tammajanta [2024] NSWSC 1180 (Tammajanta), N Adams J would have imposed a head sentence of 26 years before application of a 10% discount for a guilty plea to what her Honour described as the offender’s “brutal murder of his intimate partner”: at [5]. The relationship involved “some history of violence” with the dominant feature being “the offender’s intense irrational jealousy and his desire to control the deceased’s behaviour”: at [79]. The Crown submitted that the objective seriousness of the offence lay at or above the mid-range of offences of its type. Her Honour found that there were no circumstances which might have reduced the offender’s moral culpability, and was not satisfied that there was any genuine remorse. Her Honour concluded her sentencing judgment by observing at [137] that:

8. [8]

   Domestic violence remains not only a scourge but has been described, more recently, as a “national emergency – and an ongoing national priority”: E Campbell et al, “Unlocking the Prevention Potential: Accelerating Action to End Domestic, Family and Sexual Violence” (Rapid Review Expert Panel, Report, 23 August 2024) which noted that a total number of 58 women were victims of domestic homicide in 2023, up from 35 killed in 2022 and 33 killed in 2021, citing Australian Bureau of Statistics (ABS), ‘Table 29 – Victims of family and domestic violence related offences by sex, Australia, 2014–2023’, Recorded Crime – Victims, 2023 [table], ABS website, 2024: see https://www.pmc.gov.au/sites/default/files/resource/download/unlocking-the-prevention-potential-4.pdf at pp 7, 13, 18 and 31.

9. [9]

   In the Second Reading Speech to the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024 (NSW), the Attorney General said:

10. [10]

    Not always but frequently, domestic violence is inter-generational with perpetrators themselves having either witnessed and grown up in an environment of domestic violence between parents or themselves having been the subject of domestic violence in the family context or both. As Fullerton J remarked in Perkins v R [2018] NSWCCA 62 at [99] (Perkins):

11. [11]

    The facts of the present case present yet another tragic example of domestic violence resulting in the violent death of an innocent young woman. In this case, that death occurred in the presence of the victim’s infant child. Sympathy for the victim’s family and friends is profound, and was appropriately and sensitively expressed by Weinstein J (the Sentencing Judge): R v Thompson [2025] NSWSC 419 (the Sentencing Judgment or SJ). I echo that sympathy.

The Sentencing Judgment

1. [12]

   The respondent, Tyrone Thompson, was convicted following a late guilty plea, of the offence of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act). The guilty plea entitled the respondent to a 10% discount on his sentence pursuant to s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). The facts, which were agreed, were set out in close and extensive detail by the Sentencing Judge.

2. [13]

   His Honour imposed a sentence of imprisonment of 22 years and 6 months, with a non-parole period of 15 years and 6 months and indicated that, without the 10% discount, the respondent would have received a sentence of imprisonment of 25 years: SJ [262]. His Honour also convicted the respondent of a related offence, namely that he had knowingly contravened a prohibition/restriction in an ADVO. The facts of this offending were the facts that led up to the murder. As, in the Sentencing Judge’s words, “the murder entirely comprehends the breach of the ADVO, and bearing in mind the principle of totality”, no further penalty was imposed pursuant to s 10A of the CSP Act: SJ [248].

3. [14]

   The Sentencing Judge noted that the Crown did not submit that a life sentence was called for in the circumstances of this case: SJ [249]. The Crown submitted that the matter was “above the mid-range of objective seriousness”. His Honour was satisfied beyond reasonable doubt that the respondent had an intention to kill the victim at the time of the first stab wounds he inflicted upon her (SJ [192]) although there was no premeditation: SJ [194]. His Honour accepted on the balance of probabilities that “the offending commenced after an argument, in which the deceased hel[d] up a knife, that the offender attempted to disarm the deceased by grabbing the blade of the knife which caused his hand wound, following which the offender stabbed the deceased repeatedly”: SJ [196].

4. [15]

   A number of aggravating factors were taken into account including that the murder was committed in the victim’s home, in the presence of her infant child, involved the use of a weapon, and occurred while the respondent was on parole for the offence of assaulting and intimidating the victim and destroying her property. The Sentencing Judge was “circumspect” as to the respondent’s expression of remorse: SJ [213].

5. [16]

   His Honour observed at SJ [236] that:

6. [17]

   In respect of the respondent’s relative youth (he was 22 at the time of commission of the murder), while his Honour accepted that the offender’s immaturity contributed to his breach of the law and that, in line with authorities such as KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571, BP v R [2010] NSWCCA 303, Miller v R [2015] NSWCCA 86 and Clarke-Jeffries v R [2019] NSWCCA 56, more emphasis must be put on an opportunity for him to rehabilitate than would be the case with an older, more mature offender, his Honour went on to observe that “retribution, denunciation and deterrence, in the circumstances of this particular objectively serious domestic violence offending, cannot give way to the interests of rehabilitation”: SJ [219].

7. [18]

   His Honour found that the respondent “is suffering from significant unresolved mental health issues” (SJ [223]) which were “so intertwined with the elements of [childhood] disadvantage” (which included being “a witness to and the victim of domestic violence from a very early age” and extended homelessness: SJ [222]) such that “his mental health issues cannot be sensibly disentangled from the deprivation he suffered in his early life”: SJ [227]. Although his Honour did not find that the respondent’s mental health issues caused him to offend, they did, in combination with his “background of significant deprivation”, lead to “diminished” moral culpability which the Sentencing Judge took into account as a matter “to synthesise on sentence”: SJ [235].

8. [19]

   The Sentencing Judge accepted the respondent’s evidence in the form of an unchallenged affidavit of 29 April 2025 that he had spent the majority of his period on remand (approximately three years) at the High Risk Management Unit at Goulburn Correctional Centre where he has been classified as A1EHR (extreme high risk) with very spartan cell conditions, little natural light and limited access to telephones. His Honour noted that “[i]t is fair to say that the conditions of his custody are very strict. It is agreed that during the entirety of his time in custody the offender has never had an opportunity to interact with any other inmate”: SJ [175].

9. [20]

   In this context, the Sentencing Judge said (at SJ [242]):

10. [21]

    At the sentencing hearing, his Honour was provided with a bundle of comparable cases provided by the Crown and a set of statistics by defence counsel. His Honour noted that “[a]s always, the different objective and subjective factors in those cases make any true comparison difficult” and made the same observation about the use of statistics: see at SJ [256].

11. [22]

    Given the significance which comparable cases assumed on the hearing of the appeal, and noting that they were cited with the usual caveats as to the utility of resort to “comparable” cases, the cases relied upon before the Sentencing Judge by the Crown for the purposes of the sentencing hearing should nevertheless be noted. Each was described in the Crown’s sentencing submissions as involving “a violent and relatively spontaneous attack with a knife, or have an underlying motive of jealousy/anger in relation to the conduct of a partner/former partner.”

12. [23]

    These cases were as follows (with the pre-discounted head sentence identified and the role of moral culpability noted):

Crown appeal – manifest inadequacy

1. [24]

   The Crown has brought an appeal against sentence pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) (CAA) on the single ground of manifest inadequacy. The Crown raises no separate grounds of appeal nor any challenge to the Sentencing Judge’s findings as to the respondent’s diminished moral culpability by reason to the combination of his unresolved mental health issues and background of significant deprivation in his childhood.

2. [25]

   The general principles guiding this Court on the hearing of a sentence appeal were considered at length in my judgment (with which Payne JA and N Adams J agreed) in R v White [2025] NSWCCA 111 at [20]-[22] (White). The particular principles relating to Crown appeals and the existence and exercise of the residual discretion were considered at [33]-[44]. There was also discussion of the principles relevant to manifest inadequacy at [100]-[104]. The discussion and overview of principle in White is equally relevant to the present case and is incorporated by reference into these reasons.

3. [26]

   It follows from these principles that, even if a case could be made for a lengthier sentence being imposed on the respondent, that would not necessarily mean that the sentence in fact imposed was manifestly inadequate. Indeed, in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (Hili), the High Court said, citing Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] and Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (Wong):

4. [27]

   Mr Wilson SC, who appeared for the respondent, made reference to Hili and The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 (Pham). He drew particular attention to Hili at [59] which states (omitting footnotes):

5. [28]

   Mr Wilson also specifically referred to Pham (at [28(7)]) where it was stated that:

6. [29]

   In emphasising the expressions “only where”, “must have been” and “is driven to conclude”, Mr Wilson noted the high degree of satisfaction required as to the inadequacy of a given sentence before appellate intervention may occur. That high degree of satisfaction or confidence is also reflected in the language of a sentence being “so disproportionate to the seriousness of the crime as to shock the public conscience”: R v Osenkowski (1982) 30 SASR 212 at 213; (1982) 5 A Crim R 394 at 394, quoted with approval by Gleeson CJ in Wong at [8]. The epithet “manifest” is given real work to do in this context and is an intentional constraint on an appellate court’s ability to interfere in the broad discretion reposed in sentencing judges and in circumstances where it has been stated that there is no single correct sentence for an offender and an offence: Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [46]; Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24]; White at [20].

7. [30]

   For the reasons that follow, notwithstanding that this was a shocking and confronting crime, marked by frenzied stabbing of the poor victim in the presence of her young son, and sympathy for the victim, her family and friends is profound, the sentence imposed was not, in my assessment, “manifestly inadequate” or “plainly unjust”.

8. [31]

   The assessment of the adequacy of the sentence imposed must commence with his Honour’s 25 year starting point. To do otherwise would be to ignore the statutory discount which the respondent had obtained as a result of his guilty plea. As shall be seen, the sentence imposed in the present case was not “markedly different from other sentences that have been imposed in other cases”, to employ the language in Hili at [59]. Further, and consistently with the above, to describe a sentence as “lenient” (if 25 years could be so described) “does not render it plainly unjust” or mean that such a sentence is manifestly inadequate: White at [48].

9. [32]

   For the victim’s family, I strongly suspect that no sentence less than life imprisonment could even begin to accommodate their undoubted grief and anger at what occurred to her. The Crown did not seek such a sentence, however, and the sentence imposed was comparable to those imposed in recent years by judges of this Court: see [7], [23] above and [47] below.

10. [33]

    It is not suggested that the Sentencing Judge failed to take into account any relevant considerations and there was no challenge by the Crown to his Honour’s finding of diminished moral culpability. The Crown also acknowledged that the Sentencing Judge “appeared to have had regard to all relevant factors in his consideration of the objective seriousness of the offence”. His Honour was under no illusion as to the objective seriousness of the offence, stating in the third paragraph of the Sentencing Judgment that “This sentence concerns the brutal stabbing of the offender’s former partner”, and noted the concession of senior counsel for the respondent that the offence was “extremely serious”.

11. [34]

    While not raising “patent” error in the Sentencing Judgment, the Crown asserted that the importance of general deterrence was not adequately reflected in the sentence that was ultimately imposed. That submission flies somewhat in the face of the passage from the Sentencing Judgment reproduced at [16] above and his Honour’s subsequent statement that “retribution, denunciation and deterrence, in the circumstances of this particular objectively serious domestic violence offending, cannot give way to the interests of rehabilitation”.

12. [35]

    The Crown also raised an argument which centred on the respondent’s “dangerousness” to the community, contending that “the continuing dangerousness posed by the respondent both in custody and upon his eventual release into the community, warranted greater weight”. Matters of weight are quintessentially for the sentencing judge (see, for example, White at [30]) and do not sustain discrete grounds of appeal from a discretionary sentencing decision. But two further points can and should be made.

13. [36]

    First, because the respondent has been sentenced for more than three years, Division 2 of Part 6 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act) applies by virtue of s 134. Pursuant to s 135(1) of that Act, the Parole Authority “must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community.” The Authority must, pursuant to s 135(2), have regard to the following principal matters:

14. [37]

    The second point to be made is that the offence in question in the present case was a “serious offence” within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act). That means that, within 9 months of the end of the respondent’s total sentence, it would be open to the State to make an application for a continuing detention order, the criteria for which are set out in s 17 of the Act. Indeed, since 4 March 2022, the Parole Authority must have regard to whether the High Risk Offenders Assessment Committee has recommended, pursuant to the CHRO Act, to apply for an extended supervision order or continuing detention order: CAS Act, s 135(3)(i1).

15. [38]

    To note these two points is not to intrude into the future work of the Parole Authority or the Supreme Court in the event that an application for a continuing detention order were to be made. It is to address, however, the concern raised by the Crown as to the respondent’s future “dangerousness” to the community. That was plainly a matter to which the Sentencing Judge had regard. As the respondent will not be eligible for parole until 22 March 2038, however, a meaningful assessment of his suitability for release on parole or at the end of his total sentence will not be able to be properly made until much closer to that time. The victim’s family should be aware of these institutional safeguards which exist for the protection of the community.

16. [39]

    To return to the sentence imposed, as already indicated, it sat within the range of a series of relatively recent sentences imposed by judges of this Court and or the Court of Criminal Appeal for offences committed in broadly similar circumstances, namely homicides of domestic partners including those featuring frenzied attacks on the victim with knifes or other weapons, accompanied by an intention to kill or inflict grievous bodily harm on the victim. Each individual case of course has its own unique features which makes the process of comparison necessarily approximate and difficult for that reason.

17. [40]

    Although in Wong at [12], Gleeson CJ observed that "inadequacy or excessiveness is often demonstrated by a process of comparison", there are well established caveats to the use of comparative sentences to test the adequacy (or excessiveness) of any given sentence: see, for example, Merkel v R [2019] NSWCCA 212 at [80]; McFarland v R [2021] NSWCCA 79 at [57]-[58]; McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542 at [77]-[81]; Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [130]; Perkins at [60]-[64]. These include that:

18. [41]

    The classic statement in this area is the judgment of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304], endorsed by the High Court in Hili at [54]:

19. [42]

    As I endeavoured to point out in R v Moodie [2020] NSWCCA 160; (2020) 284 A Crim R 87 at [82]-[89], the process of comparison is nuanced and requires great care. It remains the fact, however, that “the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, and consistency of sentencing is an important element of both criminal justice and the rule of law more generally”: at [83].

20. [43]

    The process of comparison will often be difficult, as is implicit in the caveats referred to above and as the Sentencing Judge observed. Further, the “instinctive synthesis” involved in sentencing means that it will frequently not be possible to discern in any quantifiable sense the weight a particular judge has placed on any of the myriad factors that may bear upon the sentencing exercise in any given case. Nor is this required so long as all relevant considerations have been taken into account. The factors to be taken into account, moreover, often point and push in different directions.

21. [44]

    Furthermore, mere comparison of the numerical length of particular sentences, even after some rudimentary adjustment for apparent differences in the facts and subjective circumstances of the offender, will not always disclose or reflect the particular nature of the punishment involved. Thus, in the present case, Mr Wilson pointed to the fact, referred to at [19] above, that the respondent had effectively been kept in solitary confinement for the first three years of his sentence while on remand, a feature which differentiates his punishment from that of others.

22. [45]

    Acknowledging these caveats, the Crown in particular, made extensive oral submissions endeavouring to highlight similarities and differences in the sentences which have been imposed in the tragically high number of murder cases in New South Wales involving killing of an intimate partner in the context of domestic violence. The comparable sentences referred to the Sentencing Judge have already been noted at [7] and [23] above.

23. [46]

    To the extent that the sentence imposed in the present case may have been slightly lower numerically than some but not all other sentences referred to and relied upon by the Crown, it was nonetheless stern and, as Mr Wilson carefully pointed out in oral submissions relatively marginal differences in length of sentences between that imposed in the present case and those imposed in other recent cases were at least partially explicable by the Sentencing Judge’s unchallenged findings as to the respondent’s diminished moral culpability on account of his unresolved mental health issues coupled with and compounded by his troubled upbringing, childhood deprivation and exposure to domestic violence and sexual assault. This was a feature lacking in many of the comparable sentences the Crown referred to in the sentencing proceedings: see [23] above. The Crown acknowledged that aspects of the respondent’s subjective case were mitigatory.

24. [47]

    Nothing in the detailed submissions that were put by the Crown on appeal and in working through an expanded list of comparative sentences furnished after the hearing of the appeal suggested that the Sentencing Judgment was manifestly inadequate. Thus, to take a number of recent cases from that expanded list:

    1. (1)

       In R v Hachem [2023] NSWSC 535, a sentence of 24 years was imposed after trial in a case where there was a background of domestic violence where there had been numerous attempts by the victim to leave the offender, including moving interstate. The offender repeatedly waited outside victim’s house and took steps to dispose of the victim’s body and remove evidence linking him to crime.

    2. (2)

       In R v Knight [2023] NSWSC 321, the offender was the subject of an ADVO when the murder took place. A pre-discounted sentence of 23 years was imposed in circumstances where the victim was killed by a single stab wound to the back with a kitchen knife. There was a background of significant deprivation and considerable evidence of remorse. On the other hand, there were prior convictions for AOABH and contravene ADVO against the same victim.

    3. (3)

       In R v Dempsey [2023] NSWSC 205, a pre-discounted sentence of 22 years was imposed where the victim was formerly in a de facto relationship with the offender, and the fatal attack occurred in the victim’s home, involving the use of one or two weapons to assault the victim, resulting in extensive injuries sustained to the victim’s head, neck, torso, arms and legs, and the infliction of a severe blow to the victim’s head with a circular shaped object, possibly a hammer, which caused a deep skull fracture behind her right ear. The offender left victim naked in bathtub filled with water.

    4. (4)

       in R v Zafar [2024] NSWSC 1639, a pre-discounted sentence of 23 years and 11 months was imposed on an offender who was 20 years old at the time of his murder of his female intimate partner against a background of domestic violence and while he was subject to an ADVO taken out for protection of the victim’s father. The fatal act was committed in the context of the victim wanting to leave the marriage and while she was pregnant.

    5. (5)

       in R v He [2024] NSWSC 417, the offender was a 24 year old who had been in a 2 year relationship with the victim marked by coercive control and violence with evidence that he wanted to be rid of the victim before her murder. There was intent to kill and the attack involved a hammer, two knives and 75 stab wounds to the face, neck and head. There was only a mild reduction in his sentence on account of moral culpability. He was sentenced on a pre-discounted basis for 26 years and 8 months which was reduced by 25% to 20 years with a 13 year non-parole period on account of an early plea of guilty.

25. [48]

    To be sure, the Crown also pointed to other cases where a non-discounted sentence of greater than 25 years was imposed (see, for example, R v Latu (No 3) [2019] NSWSC 951 and R v Homann [2018] NSWSC 757 – a case in which there was no reduction to the sentence on account of diminished moral culpability). However, bare mathematical comparisons are of very limited, if any, utility, as has been pointed out earlier in these reasons and in many other cases.

26. [49]

    The exercise in the present case of considering all the cases referred to by the Crown only confirmed a number of verities in sentencing jurisprudence, namely that there is no one correct sentence, that sentencing judges have a broad discretion and that meaningful comparison of sentences is difficult.

27. [50]

    While I may and probably would have been inclined to impose a slightly higher sentence on the respondent than that imposed by the Sentencing Judge, authority dictates that that is of no moment provided that the actual sentence imposed was not manifestly inadequate within the well understood meaning of that expression. For the reasons given, the sentence imposed did not warrant that description.

28. [51]

    Nor could I discern any inconsistency in the application of principle by the Sentencing Judge of a kind that may have resulted in an aberrantly low sentence. The absence of any grounds of patent error being raised in respect of his Honour’s reasons, while not determinative, was nonetheless telling in this regard. Those reasons were careful, consistent in their statement and application of principle and comprehensive.

29. [52]

    I reject the Crown’s submission that the sentence imposed in the present case was so far below the range of sentences that could justly be imposed that it should be viewed as undermining public confidence in the proper administration of criminal justice.

30. [53]

    For completeness, I should indicate that, even had I reached the conclusion that the sentence was manifestly inadequate, I would have exercised the discretion reposed by s 5D(1) of the CAA against allowing the appeal. This is because the case does not present the occasion, or need for guidance of the kind described in cases such as Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [42] and CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 nor was it a decision that exposed inconsistency in sentencing patterns that required correction by this Court.

31. [54]

    This Court and the High Court have regularly provided guidance in relation to sentencing for offending involving domestic violence, and the numerous instances of sentencing for domestic violence murders in this State including those noted above have taken that guidance into account. In the present case, the Sentencing Judge was acutely conscious of that guidance, did not depart from it and cannot be said to have erred in the exercise of his discretion so as to justify the upholding of the Crown’s appeal.

32. [55]

    For the above reasons, I would dismiss the appeal.

33. [56]

    HUGGETT J: I agree with Bell CJ.

34. [57]

    RIGG J: I agree with Bell CJ.