Supreme Court New South Wales Medium Neutral Citation: R v Thomas [2017] NSWSC 1542 Hearing dates: 10 November 2017 Date of orders: 17 November 2017 Decision date: 17 November 2017 Before: Harrison J Decision: (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) 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) 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: (a) that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of Joshua Paul Thomas that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. Legislation Cited: Costs in Criminal Cases Act 1967 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550; (1991) 53 A Crim R 33 JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121 R v Mauger [2012] NSWCCA 51 Solomons v District Court (NSW) (2002) 211 CLR 119 Category: Sentence Parties: Regina (Crown) Joshua Paul Thomas (Offender) Representation: Counsel: L Lungo (Crown) B Walmsley QC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Matouk Joyner Lawyers (Offender) File Number(s): 2015/258418 Publication restriction: Nil REMARKS ON SENTENCE 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. 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. 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. 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: "I got home from work about 6.30 to 6.45pm that night. When I looked up the road I saw the car was missing. I thought that the finance company must have picked it up and taken it because it's theirs. When I bought it, I knew that it hadn't been paid off, so I expected that it would have been taken sooner or later. I presume the finance company knew where to find it because Luke would have given the RMS the notice of disposal. I know you can do it on line these days. After it was taken I didn't ring the police or Trent or anyone. I just thought I was a dickhead for buying a car that was still under finance. I expected my missus to go off at me." 1. 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. Section 315 of the Crimes Act is in these relevant terms: "315 Hindering investigation etc (1) A person who does anything intending in any way to hinder: (a) the investigation of a serious indictable offence committed by another person, or (b) the discovery of evidence concerning a serious indictable offence committed by another person, or (c) the apprehension of another person who has committed a serious indictable offence, is liable to imprisonment for 7 years. (2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence. (3) …" 1. 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. 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. 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. 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. In my opinion this offence falls at the very lowest level of seriousness for offences of its kind. Aggravating and mitigating factors 1. My attention was not drawn to the existence of any particular factors that are suggested should mitigate this offending. 2. 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. 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. 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. 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. 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. Section 10A of the Crimes (Sentencing Procedure) Act 1999 provides as follows: "10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender." 1. 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. Section 2 of the Costs in Criminal Cases Act 1967 provides relevantly as follows: "2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) …" 1. Section 3 of the Act is in these terms: "3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances." 1. Mr Thomas seeks an order for the payment of his costs under these provisions upon the basis that 1. His trial on the s 349(1) charge had commenced; 2. He was discharged, acquitted or a direction was given by the Director that no further proceedings be taken; and 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. 1. 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. 2. In Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121, McColl JA held at [36] that the Act was: "…reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed as to defeat the achievement of its general purposes." 1. At [64] of the same case, her Honour went on to indicate that: "…the purpose of the CCC Act is to ensure an objective review of the criminal prosecution upon which a person was ultimately acquitted, discharged or had his or her conviction quashed in order to determine whether, in all those circumstances, it was not reasonable that that person should have been exposed to the proceedings in the first place." 1. 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. 2. 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. 3. 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. 4. 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: "(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 – 560); the judicial officer considering an application must find what, within the Act, were 'all the relevant facts' and assume the prosecution to have been 'in possession of evidence of' all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, 'it would not have been reasonable to institute [them]'; an applicant for a certificate must succeed on both the 'facts issue' and the 'reasonableness issue': Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 – 135) per Kirby P; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 – 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 – 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);…" 1. 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. 2. 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. 3. 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. 4. 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. I make the following orders: 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. 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. 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: 1. that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and 2. that any act or omission of Joshua Paul Thomas that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2017