Attorney-General for Tasmania v O

Crimes Act, 1900. S. 35 (2) LEGISLATION CITED: Crimes (Sentencing Procedure) Act, 1999, Ss 3A; 5; 21A; Crimes (Domestic and Personal Violence) Act, 2007.

Attorney-General for Tasmania v O [2004] TASSC 53). DPP v Smith [1961] AC 290. Gallegos v R [1999] WASCA 191; Haoui v R [2008] NSWCCA 209 Hillier v Director of Public Prosecutions [2009] NSWCCA 312 McCullough v R [2009] NSWCCA 94 R v Berry; [2000] NSWCCA 451 R v Borkowski [2009] NSWCCA 102 R v Byrne (1998) 104 A Crim R 456R v Channells (Unrep), NSWCCA 30/9/97 R v Corbett [2008] NSWCCA 42 R v Devine (Unrep) TASSC, 5 July 1993, R v Doan (2000) 115 NSWLR R v Dodd (1991) 57 A Crim R 349. R v Douglas [2007] NSWCCA 31. R v Dunn (2004) 144 A Crim R 180, R v Edwards (1996) 90 A Crim 510 R v Edigarov (2001) 125 A Crim R 551, CASES CITED: R v Fahda [1999] NSWCCA 267 R v Glen (Unrep) NSWCCA, 19 December 1994, R v Greene [2001] NSWCCA 258. R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 R v Hopley [2008] NSWCCA 105 R v King (2004) 150 A Crim R 409. R v Ma (2004) 145 A Crim R 434. R v McNaughton (2006) 66 NSWLR 566; Roberts v R [2007] NSWCCA 112. Veen v The Queen (No. 2) (1988) 164 CLR 465; R v O'Neill (1979) 2 NSWLR 582 R v Ross (NSWCCA), 20 November 1996, (unrep) R v Wickham [2004] NSWCCA 193;. R v Wirth (1976) 145 SASR 219 Ugle v R [2001] WASCA 268; Vragovic v R [2007] NSWCCA 46 Weininger v The Queen (2003) 212 CLR 629

REPRESENTATION: Sergeant D. Brand, Police Prosecutor, for the Informant. Messrs Gordon, Garling, Moffitt, Solicitors, for the Offender.

1 The Offender, Theodore Giallourakis, stands for sentence having entered a plea of guilty to the following charge - "(For that he) between 4am and 4.30am on 22 nd May, 2010, at Cowra in the State of New South Wales, did recklessly cause grievous bodily harm to Donna Fields."

2 The Offender was originally charged with assaulting Ms Fields causing actual bodily harm: Section 59 (1), Crimes Act, 1900. Further medical evidence resulted in the index charge being laid leaving the Section 59 matter as a back-up. Following the plea of guilty, that charge is now marked as withdrawn. Also awaiting disposition is an associated Apprehended Domestic Violence Application. 3 The remaining offence is contrary to Section 35 (2) of the Crimes Act, 1900, which provides a penalty upon conviction on indictment of imprisonment for 10 years. No election having been made by the parties, the charge remains to be dealt with in the Local Court. Section 267 (2) of the Criminal Procedure Act, 1986, provides the maximum penalty that may be imposed by the Local Court for the offence is two years imprisonment. The matter on which I have to pass sentence is one to which the principles enunciated by the Court of Criminal Appeal in R -v- Doan (2000) 115 NSWLR 115 apply. In that decision Grove J. (Spigelman CJ, Kirby J. agreeing) said at [35]: [35] "The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'".

4 The factual material was presented to the Court in the form of a Facts Sheet, photographs and medical reports (Exhibit 1 on Sentence). No dispute was taken or flagged to the contents. The documents will form part of the Court record. I set out below my own summary of the facts for the Remarks on Sentence.

5 The Offender and the Complainant, Donna Fields, at the relevant time, had been in a domestic relationship for 11 months. There are no children of the relationship. Up until the present, there had not been any report of domestic violence between them. They live in separate houses. Ms Fields has a young son from a previous relationship living with her. The Offender lives with his elderly mother and a daughter of a prior relationship.

6 About 4.00am on Saturday, 22nd May, 2010, Ms Fields and the Offender were asleep at her residence. Ms Fields says the Offender woke up and became "grumpy". She attributes this, she says, to the Offender consuming drugs the night before. Police cannot confirm this. For my part, and notwithstanding a history involving drugs dating back to 1988, I ignore the assertion for present purposes.

7 The Offender proceeded to touch and feel Ms Fields who did not welcome the advances. The Offender left the bed and began to yell at her. He was asked to quieten down so as not to wake the son sleeping in an adjoining room. Ms Fields had by this time also left the bed.

8 The Offender said to her, "Watch your mouth." He pushed her onto the bed and sat astride her. He then punched her about four times with closed fists to her nose area and right ear. She managed to jump off the bed and told the Offender to get out of the room. He complied. Ms Fields closed the door and stayed in the room. About an hour later, the Offender asked her to call a taxi for him. The Facts Sheet says that at this time the Offender threatened to kill Ms Field and orphan her son before he left the residence but details of what was said are not provided.

9 The incident was not reported to Police until 27th May, 2010. Ms Field said she was scared and worried that the Offender would carry out his threat or do something to hurt her. She was encouraged by family members to contact Police. Police obtained a video-recorded statement plus took photographs of her injuries. Ms Fields attended the Brisbane Street Medical Centre on 24th May, 2010, because her head was throbbing. She was examined and blood was found in her left ear. A possible broken nose was diagnosed. Arrangements were made for x-ray at the Hospital.

10 The three photographs (part of Exhibit 1) show obvious bruising above and below both eyes and across the bridge of the nose which itself appears noticeably swollen. The brief report of Doctor Jesuthasan has annexed to it a brief report from Doctor K. Neale, Radiologist, which says, in part, "Findings - there are fractures of both nasal bones with slight depression of the distal fragments." The combination of this material indicates to me, at least, that a number of blows of not inconsiderable degree of force were applied to the Complainant's facial area to result in the injuries.

11 Generally speaking, the seriousness of the offence will significantly depend upon the seriousness of the wounding or injury: McCullough v R [2009] NSWCCA 94 at [37]. The injury inflicted is not the only factor in determining the seriousness of an offence under s 35. The nature of the attack and surrounding circumstances are highly relevant: R v Channells (Unrep), NSWCCA 30/9/97; McCullough v R at [37]. In R v Douglas [2007] NSWCCA 31 at [12], it was held that the number of blows and the circumstances in which they were delivered were relevant to the objective seriousness of the offence.

12 On the evening of 27th May, 2010, the Offender was spoken to at his place of residence and arrested. He said, "It's between us. We been having problems." He also said, "She hit me first." He pointed to the left side of his face, however, Police could see no visible injury. The Offender was taken to the Police Station and offered the opportunity to be interviewed. While set out in more detail in the Facts Sheet it seems the Offender's behaviour towards Police thereafter deteriorated. It is not necessary for present purposes to rehearse what happened except to note the Offender was not interviewed.

13 The Offender was born on xx/xx/1963 and is aged 47 years. His prior history commences at Cowra Petty Sessions for MRPCA in 1984. There are other entries for dishonesty, possession of drugs, numerous traffic offences, and cultivate cannabis. He received a suspended sentence in 2004 for Drive Whilst Disqualified but has not served any full-time custody.

14 I pay particular regard to the manner in which an offender's criminal record may sound in sentence: R v McNaughton (2006) 66 NSWLR 566; Veen v the Queen (No. 2) (1988) 164 CLR 465; R v Wickham [2004] NSWCCA 193; Hillier v Director of Public Prosecutions [2009] NSWCCA 312 and Weininger v The Queen (2003) 212 CLR 629.

15 The Court has been provided with a Pre-Sentence Report by Ms Lisa Luff of the Young District Office, dated 12th August, 2010 - (Exhibit 2 on Sentence). The report notes the Offender is a 46 year old widower and the father of 3 daughters. He resides with his mother and youngest daughter in Cowra and is their sole carer. He receives a Centrelink Disability Support Pension for drug dependency, depression and chronic obstructive pulmonary disease and also receives a Carer's Allowance.

16 The Offender says he does not agree totally with the Police Facts. He said his partner accused him of infidelity earlier in the day and asked him to leave the home. He admitted to using an illicit substance due to being upset. He said the offence was drug-related and that he was "coming off the gear". He denied punching his partner in the face, however, admitted to slapping his partner across the head. I interpolate here that the objective evidence of the injuries flies in the face of the Offender's assertion of slapping his partner across the head and I reject it.

17 The Offender has a history dating back to his early twenties of illicit substance abuse, at one stage costing him $1,000.00 per day. Of more recent years he commenced abusing alcohol. He is a daily cannabis user but claims to be abstinent from alcohol and other illicit drugs since the offence. The Offender is suitable for a medium level of intervention by the Service addressing the following areas of criminogenic need: Continued attendance at Anger Management Programme Complete Domestic Abuse Programme Address Drug and Alcohol Abuse.

18 He has been assessed as unsuitable for a Community Service Order due to outstanding health issues and illicit drug and alcohol dependency.

Matters of General Principle Objective Seriousness. 19 The correct starting point is a level-headed assessment of the gravity of the objective facts of the offences with which the Court is dealing. There can be no doubting the objective seriousness of these offences - if only by reference to the penalties provided by Parliament. I remind myself of what the Court of Criminal Appeal said in the decision of R v Dodd (1991) 57 A Crim R 349. (Gleeson CJ; Lee CJ at CL and Hunt J.) said at p. 354: "As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place.

Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594. " The added emphasis on the last sentence of that extract is mine.

20 I allow the full discount of 25% for the utilitarian value of the plea in accordance with the principles in R v Thompson & Houlton 49 NSWLR 383; R v Borkowski [2009] NSWCCA 102. See also Section 22 (1) Crimes (Sentencing Procedure) Act, 1999. The plea of guilty admits those matters which are the essence of the charge: see R v O'Neill (1979) 2 NSWLR 582 at 588. At common law, the words "grievous bodily harm" are given their ordinary and natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": DPP v Smith [1961] AC 290; Haoui v R [2008] NSWCCA 209 at [137], [160].

21 There is something else which needs be said about a plea of guilty in cases of domestic violence: it is a tangible demonstration of remorse and contrition. It saves the victim the trauma of giving evidence in the witness box and, depending upon the tack taken, being accused of embellishing her evidence, or worse, to have the Defender convicted. If a reconciliation between the parties is likely, a plea of guilty is a public acknowledgement of wrong-doing and helps the healing process - particularly where children are concerned.. If a custodial penalty has to be imposed nonetheless, such a plea can make quite a difference to the "bottom line" where considerations as to likelihood of re-offending and rehabilitation arise.

22 It is sad testimony indeed to the state of our society that instances of domestic violence, and serious domestic violence at that, continue unabated. It does not seem to matter what resources are employed to protect women (and it is almost always women) from violence in a domestic context. It is important, yet again, to stress with both clarity and resolution, the need for personal and general deterrence and denunciation in cases of domestic violence which inherently involve breaches of trust and vulnerability of victims. It is worthwhile taking a little time to re-state what Courts of higher and binding authority have said time without number as to what is required of subordinate Courts in dealing with these cases

23 In approaching the resolution of sentencing in domestic violence cases, Courts have made numerous statements about the importance of general deterrence. In R v Glen (Unrep) NSWCCA, 19 December 1994, Simpson J., stressed the importance of general deterrence in cases of domestic violence. Her Honour stated that victims of domestic violence will "receive the full protection of the law, insofar as the courts are able to afford it to them". (See also R v Greene [2001] NSWCCA 258 per Howie J: - "general deterrence was a significant matter in sentencing the applicant simply because of the prevalence of violence by men against women in domestic relationships") In R v Berry; [2000] NSWCCA 451 the Court recognised that there was a need for "both general and personal deterrence in sentencing for a crime of domestic violence."

24 In the landmark case of R v Hamid (2006) (164 A Crim R 179; [2006] NSWCCA 302), in the leading judgment of Justice Johnson, the Court noted that the importance of general deterrence in domestic violence cases, given the prevalence of violence by men against women in domestic relationships had been emphasised repeatedly by the Court and the following passages were cited in support: In R v Ross (NSWCCA), 20 November 1996, (unrep) , Adams AJ (Newman J agreeing) observed, in the context of a sentence appeal concerning an offence of assault occasioning actual bodily harm committed upon a domestic partner:

"This was an act of frightening violence meted out to a woman [who] was entitled to the protection of the law. Until men such as the applicant understand that the law will treat with real seriousness cases which hitherto have been dismissed as having 'domestic' significance, this appalling series of violent acts meted out continuously to women in this community by men who suppose they have the right to do so will not stop."

In R v Fahda [1999] NSWCCA 267, Simpson J (Studdert J agreeing) said at paragraph 26: "Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished." In R v Edigarov (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at 558 [41]: "As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence." In R v Dunn (2004) 144 A Crim R 180 , Adams J (Ipp JA and Sully J agreeing) said at 195 [47]: " Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind."

25 In Hamid the Court also said: "In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC."

26 The Court also referred to criminological research, stating: "An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control"

27 Most recently in Vragovic v R [2007] NSWCCA 46 the Court observed: "It was once thought in some circles that domestic violence was somehow less serious than criminal violence inflicted in other circumstances. I do not agree. In many cases of domestic violence a distinguishing characteristic is the notion of the offender that he (and it is almost invariably a male) is entitled to act as he did pursuant to some perverted view of the rights of a male over a female with whom he is or was intimately connected. It is this characteristic of self-justification which requires particular emphasis to be given, in cases of this kind, to the elements of general and personal deterrence…"

28 Similar views have been expressed in other Australian jurisdictions with respect to sentencing of domestic violence offenders. (See, for example, R v Devine (Tasmanian Supreme Court, 5 July 1993, unreported); Gallegos v R [1999] WASCA 191; Ugle v R [2001] WASCA 268; Attorney-General for Tasmania v O [2004] TASSC 53).

29 Given that weight of judicial authority, it is crystal clear that there is a serious obligation upon Courts called upon to deal with cases of domestic violence to impose condign punishment in appropriate cases. The message needs be spread, and loudly, throughout the community, that that is precisely what will happen. My Circuit, known as the Cootamundra Circuit, comprising 7 Local Court districts of which this Court is one, has what I regard as a truly appalling level of domestic violence - but, sadly, it is on a par with the rest of the State, which is nothing to be proud of.

30 It has been submitted that the Court should consider the hardship of any custodial penalty upon the Offender's elderly mother and children. This is a mitigating feature that is generally of very little significance. Dunford J., reviewed the principles and authorities in his judgment in R v Byrne (1998) 104 A Crim R 456 @ 463 - "The general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in mitigation of sentence in highly exceptional circumstances. The care of young children is not normally an exceptional circumstance. In R v Edwards (1996) 90 A Crim 510 @ 516 Gleeson CJ., said:

"The real difficulty about a case such as the present and many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional; regrettably, causing hardship to third parties by the imprisonment of the offender is only too common. …

Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional. See the remarks of Wells J., in R v Wirth (1976) 145 SASR 219 @ 295-6."

31 More recently, the authorities relating to hardship to an Offender's family were reviewed by the Court of Criminal Appeal in R v Hopley [2008] NSWCCA 105 @ [39]-[41]. At [39] Johnson J., (Beazley JA and McCallum agreeing) said: "The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards @ 516; R v Day @ 277; R v Gip; R v Ly @ 179. " 32 Submissions notwithstanding, I have come to the view that this is not one of those, " …truly, wholly or highly exceptional," cases as referred to in the judgment of Johnson J., in R v Hopley [2008] NSWCCA 105 @ [39]-[41]. 'Hardship' is, however, a matter which can be regarded as a "special circumstance" and I will do that.

33 What, then, is to be done with an Offender who punched his domestic companion repeatedly in the face and causing injuries amounting in law to grievous bodily harm. While it is always possible to conjure up a "worse case" - I assess the conduct at the upper end of the lower range of the scale of offending. The applicable sentencing principles are found in Sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999: see R v Ma (2004) 145 A Crim R 434; R v King (2004) 150 A Crim R 409 per McColl JA.

34 I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. In arriving at that conclusion I have regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general and specific deterrence and the subjective circumstances of the offender. Taken together, I am of the view that this is not an appropriate case for a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. It follows from what I have just said that it is not appropriate for the sentence to be suspended: R -v- Zamagias [2002] NSWCCA 17 at [25]-26] per Howie J; Regina v Blundell [2008] NSWCCA 92 per Simpson J.

35 In respect of the charge of Recklessly Cause Grievous Bodily Harm to which the Offender has pleaded guilty he is convicted. I sentence him to a term of 24 months to date from 18th August, 2010. To that sentence I apply a discount of 25% resulting in an actual term of sentence of 18 months. He is to serve a non-parole period of 6 months to date from 18th August, 2010, expiring on 17th February, 2011 and a balance of term of 12 months to date from 18th February, 2011, expiring on 17th February, 2012,

36 I find circumstances are sufficiently special for the statutory proportion to be reduced owing to the Offender's age; the need for rehabilitation; the need for extended supervision upon release; this will be his first full-time custody, and the impact of the sentence upon third parties, namely, his mother and children - see Roberts v R [2007] NSWCCA 112 per Rothman J @ [61].

37 Pursuant to Section 50 I direct the release of the Offender to parole at the end of the non-parole period. In accordance with Section 51 I direct as a condition of parole that the offender be subject to supervision by the Probation & Parole Service for such period as that Service deems necessary and undertake any programme or treatment recommended by the Service. Any failure to comply with this direction may be regarded as a breach of parole.

38 I turn now to a finalisation of the Apprehended Domestic Violence Application. Upon conviction for the index offence, I make final orders in terms of 1, 3 and 7 for a period of 12 months from 18th August, 2010.

39 Earlier in these Remarks (par. 26) I expressed concern at the level of domestic violence throughout my Circuit and the serious obligation upon Courts called upon to deal severely with cases of domestic violence. In imposing the sentence upon this Offender to-day, I hope to telegraph to the wider community, in a very public way, the Court's attitude to offences of this type.

40 As Hulme J observed in R v Corbett [2008] NSWCCA 42 at [7]: "From time to time particular offences have become more common, either throughout the state or in particular towns or parts of it. It is an accepted practice for criminal courts to respond to such increases in offending of a particular type by increasing sentences for such offences and this without any change to the legislative proscription of the conduct or any increase in the penalty prescribed".

41 His Honour was there dealing with a drug case but, in my view, the stated principles are of general application.

42 Someone unfamiliar with the more commonplace anti-social dynamics of this community, and responding, perhaps, to a case not put before me, might be persuaded to release this Offender on appeal or reduce the sentence. For my part, however, all I can do is to continue to apply the principles of binding authority which the higher Courts have made plain are required in sentencing for offences of this type and the crucial aspect of general deterrence. Until this message is spread and applied consistently at all levels more women will continue to be assaulted and perpetrators will continue to do the assaulting.

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