R v Thomas

1. [1]

   HIS HONOUR: Joshua Paul Thomas pleaded guilty on 10 November 2017 to a charge that, on 10 April 2015, at Sydney, he did hinder the investigation of a serious indictable offence, contrary to the provisions of s 315(1)(a) of the Crimes Act 1900. The Crown accepted that plea in full satisfaction and discharge of both counts on the indictment. Mr Thomas is therefore to be sentenced for that offence in the circumstances that are described in what follows.

Agreed statement of facts

1. [2]

   On 22 March 2015, Mr Thomas purchased a Hyundai i30 station wagon from Luke Mullens. On 31 March 2015, that vehicle was involved in an incident at South Windsor. The Crown does not allege that Mr Thomas was involved in that incident or that he had any knowledge of it. However, Brendan Vollmost has not been seen since he was shown on CCTV footage in the course of this incident being chased into residential premises by a number of men who alighted from Mr Thomas’ Hyundai motor vehicle. That vehicle has also not been located and its current whereabouts are unknown.

2. [3]

   Police investigators spoke to Mr Mullens on 9 April 2015 and were told that he had sold his motor vehicle to Mr Thomas. In due course, Mr Thomas attended a meeting that had been arranged in a park in South Windsor. The conversations among the individuals present at that meeting were recorded on a listening device that had been duly authorised by a listening device warrant. During that meeting, Mr Thomas was urged to say that, if he were spoken to by police about his car, he had purchased it a few days beforehand but that it had been stolen. Mr Thomas agreed at that time that he would say, “I bought a car, two days later it was stolen. I thought it was stolen so I didn’t chase it up.”

3. [4]

   The following day, Mr Thomas made a statement to the police in which he described the circumstances in which he had purchased the car. The content of that portion of his statement was truthful. However, Mr Thomas also said that his car had been taken on 24 March 2015 in these terms:

4. [5]

   The making of that statement to police is the basis of the offence being an act intended to hinder the investigation of a serious indictable offence. On 3 September 2015, Mr Thomas was arrested and charged with the offence of being an accessory after the fact to the murder of Mr Vollmost, contrary to s 349(1) of the Crimes Act. He declined to be interviewed. Mr Thomas has always maintained his plea of not guilty to that charge. He remained in custody following his arrest on that charge bail refused until bail was granted in this Court on 10 March 2016.

The offence

1. [6]

   Section 315 of the Crimes Act is in these relevant terms:

2. [7]

   No person has yet been convicted for the murder of Mr Vollmost or with any associated or related serious indictable offences arising out of the incident at South Windsor on 31 March 2015. Section 315(2) applies to the circumstances of the present charge.

Subjective features

1. [8]

   Mr Thomas was born in March 1989 and is currently 28 years of age. He has prior convictions for traffic offences. He has never been sentenced to or served a period of imprisonment. His only custodial experience is the time spent on remand when originally arrested as earlier discussed.

2. [9]

   Mr Thomas has lived in the Windsor area all of his life. His family members remain in the local area. Mr Thomas is one of 11 children, with whom he continues to share a close relationship. Mr Thomas has been in a domestic relationship with Tamryn Brown for 11 years. They have two children. I accept that Mr Thomas is a devoted father and family man.

3. [10]

   Mr Thomas completed his education at Windsor High School to Year 10. After completing his School Certificate he obtained work as a chicken catcher with Steggles Pty Ltd. He remained in that position for six years. He thereafter became a truck driver with Wayne Fenech Transport. Immediately prior to his arrest he was employed by Rick Murray Excavations. Mr Thomas is currently proposing to commence work as a self-employed landscape contractor. That business venture is yet to be established.

Objective seriousness

1. [11]

   In my opinion this offence falls at the very lowest level of seriousness for offences of its kind.

Aggravating and mitigating factors

1. [12]

   My attention was not drawn to the existence of any particular factors that are suggested should mitigate this offending.

2. [13]

   Mr Thomas was on a s 10 bond for 12 months imposed on 11 February 2015 for the offence of drive while his licence was suspended.

Custodial history

1. [14]

   As I have already indicated, Mr Thomas has spent a period of 6 months and 8 days on remand awaiting trial on the original charge.

Criminal history

1. [15]

   Mr Thomas has three convictions for driving offences. In addition to the offence referred to at [13], he has convictions for driving while suspended on 16 February 2017 and 13 July 2017. He also has a conviction for driving whilst under the influence of an illicit drug on 20 April 2017.

Prospects of rehabilitation

1. [16]

   Mr Thomas would appear to have committed the subject offence as the result of some misguided loyalty to another person or out of a sense of obligation. His decision to do so was not one that was in his own best interests. The consequences for him, including especially the period during which he was incarcerated upon remand, will no doubt remain with him always as constant and unpleasant reminders of his mistakes. I have no present reason to suspect that he will reoffend. The somewhat idiosyncratic nature of the circumstances that led to the commission of this offence tend as well to suggest that any further offending of this kind is highly unlikely. There are corresponding reasons to suspect that Mr Thomas therefore has good prospects for rehabilitation.

Special and general deterrence

1. [17]

   I do not consider that the circumstances of this case represent an opportunity for the imposition of a sentence that incorporates some element of either special or general deterrence. This is particularly so having regard to the amount of time Mr Thomas has already spent in custody on a different charge, to which he had always pleaded not guilty.

The proper sentence

1. [18]

   Section 10A of the Crimes (Sentencing Procedure) Act 1999 provides as follows:

2. [19]

   In my opinion, this case is an appropriate case in which to proceed to dispose of the proceedings without imposing any penalty other than the recording of a conviction. The recording of a conviction alone is itself a not insignificant penalty: see, for example, R v Mauger [2012] NSWCCA 51. Indeed, the specific wording of s 10A(1), referring as it does to “any other penalty” implicitly indicates or at least suggests that the conviction of an offender is itself to be treated as, or considered to be, a penalty.

Costs

1. [20]

   Section 2 of the Costs in Criminal Cases Act 1967 provides relevantly as follows:

2. [21]

   Section 3 of the Act is in these terms:

3. [22]

   Mr Thomas seeks an order for the payment of his costs under these provisions upon the basis that

   1. (1)

      His trial on the s 349(1) charge had commenced;

   2. (2)

      He was discharged, acquitted or a direction was given by the Director that no further proceedings be taken; and

   3. (3)

      I ought to find that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings.

4. [23]

   In JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 the court held that a trial has commenced when the accused is arraigned upon an indictment and enters a plea of not guilty. “Institution of proceedings” for the purposes of s 3(1) of the Act is the time of arrest or charge: Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550; (1991) 53 A Crim R 33 at 558.

5. [24]

   In Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121, McColl JA held at [36] that the Act was:

6. [25]

   At [64] of the same case, her Honour went on to indicate that:

7. [26]

   The onus rests upon the accused person to demonstrate that it would not have been reasonable to institute proceedings: Solomons v District Court (NSW) (2002) 211 CLR 119.

8. [27]

   The Crown concedes in this case that, in the events which have occurred, being specifically the Crown’s acceptance of his guilty plea in satisfaction of both counts on the indictment, that Mr Thomas has relevantly been “discharged” within the meaning of s 2(1) of the Act.

9. [28]

   The Crown contended, in response to the application, that there was in the first place no jurisdiction in this case to make the order sought. That was said to be because it was never the legislative intention to extend the granting of a certificate to cases, such as the present, where an alternative count proceeds to a guilty verdict or to a plea upon the discharge of a person such as Mr Thomas on what the Crown described as “the primary count”. The Crown contended in the second place that it was in all of the circumstances reasonable in any event to commence the s 349(1) prosecution. The Crown submitted in this respect that commencing the prosecution did not necessarily refer only to the limited or specific charge upon which the person was ultimately discharged but included the process of the investigation and the obtaining of evidence. The Crown argued that the question of reasonableness in this case is informed or is evidenced by Mr Thomas’ plea of guilty to the charge of hindering the investigation, which was based upon the same facts as those that led to the s 349(1) charge.

10. [29]

    McColl JA set out an exhaustive and helpful review of the authorities dealing with applications for a s 2 certificate at [36] of her judgment in Mordaunt at (e) and (f) as follows:

11. [30]

    Mr Thomas contends, and the Crown does not dispute, that “all of the relevant facts” for the purposes of s 3(1)(a) of the Act are to be found within two documents. The first is a document referred to as Transcript B. For present purposes, Transcript B is accepted to be a transcript of the listening device recorded on Thursday 9 April 2015 on the occasion of the meeting in the park at South Windsor among a group of men, including Mr Thomas. The second document is the statement given by Mr Thomas to the police on 10 April 2015. That statement was to have been the subject of an application by Mr Thomas to exclude it from use at his trial upon the basis that it was inadmissible having regard to s 281 of the Criminal Procedure Act 1986. In the events that have now transpired, that application did not proceed but the material in the statement has become, somewhat ironically, the basis for the agreed facts in respect of the charge to which Mr Thomas has pleaded guilty and for which he is now to be sentenced.

12. [31]

    In my opinion, this is not a case in which there is any doubt or question about whether before the proceedings were instituted the prosecution had been in possession of evidence of all the relevant facts. Transcript B and Mr Thomas’ statement were available to the prosecution by no later than 10 April 2015. Transcript B contains no material or evidence that could have inculpated Mr Thomas on a charge laid pursuant to s 349(1) of the Crimes Act. Any fair reading of everything that was said by Mr Thomas at the meeting in the park does nothing to implicate him in an allegation that he received, harboured, maintained or assisted anyone in any way at all. By way of contrast, Transcript B does contain material that suggests that Mr Thomas may have been prepared to hinder the police investigation of a serious indictable offence, which was consummated the following day when he provided his partially false statement to the police.

13. [32]

    However, having regard to the scope and content of the evidence contained in Transcript B, I consider that it would not have been reasonable to institute the proceedings against Mr Thomas on the s 349(1) charge. Mr Thomas’ discharge on that particular count in the indictment was approaching an inevitability.

14. [33]

    Nor do I consider that there is any support for the proposition that it was never the legislative intention to extend the granting of a certificate to cases, such as the present, where an alternative count proceeds to a guilty verdict or to a plea upon the discharge of a person such as Mr Thomas on what the Crown described as “the primary count.” The touchstone of this statute is effectively the reasonableness of commencing the proceedings having regard to the evidence that is, or with due diligence would be, available to the prosecution. In this case, Mr Thomas was taken into custody where he remained for over six months having been charged with the s 349(1) offence. It is highly likely that Mr Thomas would not have been taken into custody, or held on remand for so long, if he had only been charged with the hinder police offence. The Costs in Criminal Cases Act is not in terms specifically directed at constraining the due and proper exercise of prosecutorial discretion. However, there is correspondingly also nothing to be found in the Act that limits its operation to circumstances where someone, such as Mr Thomas, has been charged with multiple offences that do not all result in a conviction or a plea of guilty. The laying of several charges arising out of related events for what might be considered or appear to be tactical reasons is commonplace in my experience, but it cannot be assumed that in adopting such a course the prosecution will not attract at least the possibility that adverse costs consequences may follow if the evidence does not support it.

Orders

1. [34]

   I make the following orders:

   1. (1)

      Joshua Paul Thomas, for the offence of hinder the investigation of a serious indictable offence, contrary to s 315(1)(a) of the Crimes Act 1900, you are convicted.

   2. (2)

      Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I specifically dispose of these proceedings without the imposition of any other penalty.

   3. (3)

      I grant Joshua Paul Thomas a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 specifying in accordance with s 3 of the Act: