Director of Public Prosecutions (NSW) v Vallelonga

Local Court of NSW|2014-09-04

Judgment 1The offender, Aldo Vallelonga appears before the Court to be sentenced on 7 counts of common assault and 1 count of assault occasioning actual bodily harm. Each offence was committed against his then wife, Olivia Falvo. [Each offence is a domestic violence offence. In addition to any penalty this Court imposes there is a direction in accordance with section 12(2) of the Crimes (Domestic and Personal Violence) Act requiring each conviction be endorsed on his criminal record as convictions for a domestic violence offence.] 2The offending took place over an 18 month period. For a large part of this time the victim, Olivia Falvo was pregnant with the offender's child. For some of the time the child of the relationship was present during acts of violence by the offender towards Ms Falvo. For the whole of the time the offender was in the grip of addiction, mostly to cocaine. This is a circumstance of his own creation. It does not mitigate his conduct. Against this background and context it is necessary to describe the offender's behaviour.

Offence 1 - Common assault 3On 1 June 2011 the victim took the offender to task about his illicit drug taking. She was, at the time, pregnant. The offender reacted to being questioned in an angry and hostile fashion. The argument escalated. The victim said she was leaving. As she attempted to walk past the offender he grabbed her in what may loosely be interpreted as a "bear hug" and attempted to manhandle her down the stairs. The victim implored the offender to stop as she was pregnant. The offender dragged the victim down four steps of stairs and ordered her to sit down so they could talk. The victim managed to elude the offender and escape to the safety of her parents' residence. They lived upstairs.

Offence 9 - Assault occasioning actual bodily harm 4This charge was preferred by the DPP in substitution for an offence under section 37 of the Crimes Act 1900. In preferring this charge it is understood the prosecution concede there was no intention on the part of the offender to choke the victim for the purpose of committing an indictable offence. Rather, the plea is on the basis that on 21 October 2011 at the house that was being renovated, the offender did in fact place his arm around the victim's neck squeezing sufficiently tightly that she commenced to go dizzy and reach the point of probable momentary unconsciousness. She staggered forward only to be taken by the offender in the same hold again losing her sense of orientation, with her next memory being of her sitting on the steps to the house. She was at the time 36 weeks pregnant.

Offence 3 - Common assault 5At the beginning of November 2011, 3 weeks before the victim was due to give birth she and the offender argued over money. Evidence given before this Court by the victim on 8 July 2014 establishes that she rather than the offender was the main breadwinner. Part of the conversation related to the quality of electrical work being undertaken at their house. In company with her mother the victim travelled to the house. It was her intention to dispense with the services of the electrician. 6The victim was confronted by the offender. She told the offender she was there to pay off the electrician and fire him. The offender became angry. According to the tendered statement of facts he grabbed the victim by her ponytail and slammed her whole body against a wall, on at least 3 occasions. The victim's mother yelled at the offender to let her daughter go. He did so. The victim called police. The offender told her that if she had him charged she would have her baby alone and that DOCS would get involved and take the baby. The victim began to panic at the prospect of losing her child. Such was the effectiveness of the offender's threatening statement that when police arrived both the victim and her mother remained mute.

Offence 4 - Common assault 7In early December 2011 the victim was in the home when some building work was being undertaken. She expressed concern that the work was causing damage. She wanted the builder to stop. The offender began arguing with her. He pushed the victim against the wall and leant on her so she could not approach the tradesman who was doing the hammering in another room. The offender is a tall, heavy set man. The victim told him to stop as she was pregnant. The offender let her go and she left the house to go to her mother's home.

Offence 5 - Common assault 8On 23 November 2012 Ms Falvo was lying on a mattress on the floor watching television. Her baby was asleep beside her. The offender entered the room. An argument ensued about the tidiness of the house. After about 15 minutes the offender took hold of the victim's legs and twisted them, causing the victim pain. He held her in this position until she began to cry. He released her and left the room.

Offence 6 - Common assault 9On 24 November 2012 the victim was once again in bed watching television. Once again an argument about the tidiness of the house took place. Once again the offender took hold of the victim's legs in a similar fashion to that applied the previous day twisting them until the victim began to cry.

Offence 7 - Common assault 10After the earlier assault the victim was proximate to the dining room. She observed a plastic bag the offender had been carrying around for some months. There is some suggestion the bag contained material associated with the offender's acknowledged drug addiction. Ms Falvo upended the bag disgorging its contents. The offender approached her in an angry manner grabbing her body and pushing her against a set of doors. The offender took hold of the victim's face and gripped it. The victim was, at the time holding their son in her right arm. The offender began yelling at the victim who became concerned for her own wellbeing and that of her baby. She picked up a pen and stabbed it into the offender's arm yelling for him to let go of her. The offender let go and collected his plastic bag. The baby was crying and upset. An argument continued until the offender left.

Offence 8 - Common assault 11In December 2012 in the family home the victim picked up the offender's plastic bag and its contents and took it outside. The offender followed her outside. He pushed her in the back causing her to fall to the ground. Although the facts describe minor injuries, for the reasons outlined in R v Abboud [2005] NSWCCA 251 actual physical injury cannot form part of the factual basis on sentence for a charge of common assault.

Subjective factors 12Mr Vahl for the offender placed great emphasis on the co-existence of the offender's problems with drugs and alcohol. It is conceded by counsel for the offender that during the period when the assaults were occurring the offender was in the grip of an addiction to alcohol, cocaine and possibly other drugs. Whilst one course of unwise behaviour in relation to alcohol is a legal course of conduct, the acquisition of an addiction to prohibited drugs involves participation in unlawful conduct on an ongoing basis. Such behaviour may put the offender's conduct in context inasmuch as the inference arises that but for his problem with drugs, and perhaps alcohol, the offending would not have taken place but it is not the view of the court that this mitigates the objective seriousness of the conduct within the commission of the offence. 13To the contrary the acknowledged involvement in drug taking reflects poorly on his character, as does the conviction for a criminal offence in 2013. The addictive nature of the circumstances surrounding these offences requires the court to be cautious about the prospects of rehabilitation. It is to be noted the victim in the course of her evidence despite her admirable desire to help the offender in his rehabilitation expressed reservations about his commitment given that he continued to associate with a person she believed to also be involved in the abuse of prohibited drugs. 14The Court can place little weight on an unproven assertion but it remains a matter of common sense that the temptation for the offender to continue to associate with those who seek to justify their illicit drug taking by tempting him into re-joining them is a real concern, for his ex-wife and for the Court. This is not to say the victim was entirely negative towards the offender. 15Ms Falvo was called by counsel for the offender to give evidence. She stated that before the offender began his association with drugs their relationship had not been one that had a violent or intimidatory component. Ms Falvo was fair and open in her evidence that the relationship between the offender and her had been a good one for some 9 years. Contrary to the suggestion of the Crown I did not find her a witness who tailored her evidence to favour the offender. Ms Falvo was a confident and strong woman who had endured an ongoing relationship mired by almost 18 months by physical violence, manipulation, threat and the potential for harm to the successful completion of her pregnancy and the early period of her son's life. She continues to endure the consequences of the destruction of a once successful marriage. 16Despite what was clearly a manifestation of her personal commitment to her marriage and with declining commitment to her husband she experienced what too many women in society experience - the vexed question of whether to stay or to go in circumstances where that decision is made all the harder by pregnancy and subsequent birth. As she said in her evidence, "I thought having a baby would shock him but in my heart I knew he hadn't stopped taking drugs". 17Hope expressed in this form reflects the natural aspiration of a mother that her child should have two parents not one and the belief that bringing a new life into the world would be the most powerful emotional tool she could use to bring the offender to his senses through the realisation that parenthood is a shared responsibility. Sadly the extent of the offender's addiction to drugs meant it was not to be. That which Ms Falvo already knew within her heart of hearts came to pass. The offender sacrificed his marriage and the opportunity to carry out his proper role as a parent to its full extent in exchange for drug addiction, violence, menace and the loss of his reputation. 18The question that remains to be answered is whether he has, by reason of the nature and extent of his conduct, also sacrificed his freedom. His former wife gave evidence orally and in writing that she did not wish to see the offender sent to gaol, was conscious of the need for him to be involved in the life of their son and had observed demonstrable change in the offender since his engagement with counselling and the MERIT programme. Whilst it is always important to recognise the view of a victim this is but one of the considerations and is not of itself determinative. 19There is support for Ms Falvo's observations. Mr Vahl for the offender outlined in great detail the efforts undertaken by the offender to address the aspects of causation - his abuse of alcohol and drugs. The MERIT report, Pre-Sentence Report and the report of the offender's treating clinical psychologist, Dr Yourell detail the lengthy and to date positive efforts by the offender to react to the environment created by his lengthy period of offending, abuse and the breakdown of his domestic life. Importantly he has taken part in cognitive therapy to provide him with strategies to help him cope if confronted with situations that cause him to respond with anger. 20Dr Yourell's report also notes a history of a major depressive disorder for which treatment is managed by a psychiatrist. To his credit the offender does not seek to mitigate his conduct by reason of his underlying issues with mental health. Those reports separately and in combination support the observations of Ms Falvo. It cannot be said he is "cured" to use a common perception. 21It can be said the extent of his pre-sentence efforts to embark on a path towards rehabilitation are impressive. Courts are acutely aware of course that some offenders, facing the prospect of gaol, take steps to engage in the types of activities outlined at length by Dr Yourell as a means of achieving a lesser sentence. Against that caution however the weight of achievement weighs in the offender's favour, but not as a substitute for an appropriate sentence. Addressing the criminal is not the same as addressing the crime.

The sentence 22The offender entered pleas of guilty to the allegations of common assault some 6 months after he was charged. A plea was entered to the charge of assault occasioning actual bodily harm after negotiations with the prosecution. It is suggested the pleas are early and the utilitarian value towards the upper range because the plea was entered at the first available opportunity after negotiations. 23Before determining the discount for the plea it is timely to make a general observation. There is a practice in matters involving potential prosecutions on indictment to withhold any indication of the position in relation to matters that are amenable to summary disposition in the Local Court. The prosecution is then put to the effort of arranging the preparation and service of a brief only to find the offender is willing to engage in negotiations in relation to the more serious charge with a view to it remaining in the Local Court. 24Such an approach appears to be undertaken with a lack of pragmatism in assessing the principles of general application identified by Howie J in R v Borkowski [2009] NSWCCA 102. The principles are set out at [32] of that judgment. In matters that commence on indictment but which have a mixture of indictable and summary charges points 6 and 9 of Howie J's statement are often overlooked - to the detriment of an offender. 25It is clear in these proceedings there was never any issue of the offender's guilt in relation to the charges of common assault yet the utilitarian value of the eventual plea to each of these matters is truncated by delay. During the 6 months from charge to plea the prosecution was put to the task of preparing a brief not just in relation to the indictable matter, but also in relation to the charges of common assault. The utilitarian value of the eventual plea will be allocated a discount of 15%. 26I have already made observations in relation to some of the subjective factors put before the Court in support of the offender. I accept Mr Vahl's submissions on behalf of the offender that there are good prospects of rehabilitation. This is not a statement that rehabilitation is guaranteed. It simply reflects the logical probability that the concerted efforts by the offender to engage in treatment for his addiction and in relation to his mental health provide a platform upon which greater confidence may be placed as opposed to an offender who does nothing. 27Having read the detailed psychological report and the other reports I also accept the offender is genuinely remorseful for his actions although like so many who fall under the spell of drug addiction there is an element of blaming the drug rather than himself for his conduct. As his former wife said in the witness box, "He has sort of said sorry but can't believe he did it". The Court can understand why a person would, for their own peace of mind, qualify the acceptance of responsibility. I am satisfied however that there is sufficient remorse to mitigate the penalty. These factors weigh in the offender's favour but do so against the law in relation to domestic violence. 28Regrettably violent conduct within relationships is an entrenched social reality in our society. Overwhelmingly it is men who carry responsibility for domestic violence. It is the conduct of men that feeds capacity for such violence to create victim after victim or, as is the case in these proceedings the same victim time and time again. The seeming inability to eradicate domestic violence from society warrants a strong response from the legal system, and for good reason. 29The observations of the Court of Criminal Appeal in R v Hamid [2006] NSWCCA 302 at [66]-[78] are of particular relevance to the issue in general and the proceedings before this Court. The observations are well known. They do not need to be repeated at length in the context of these sentencing remarks. The general tenor of the approach urged by the CCA can be brought home to the offender before me by noting the words expressed in R v Edigarov (2001) 125 A Crim R 551 cited with approval in Hamid: 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 that it is adequately punished and that sentences are handed out which have a strong element of personal and general deterrence. 30The observation at paragraph [75] of Hamid in citing a Canadian decision of R v Brown (1992) 73 CCC (3s) 242 at 249 adds to the chorus as to why there is a need for Courts to be strong in their response: When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. 31In these matters although the offender was not, according to Ms Falvo, the principle financial contributor he was the type of individual who used what in colloquial terms might be called "emotional blackmail" in the form of a threat to involve DOCS and forecast the removal of the child of their relationship to stay the hand of Ms Falvo in reporting his conduct to police until she could do so no longer; and he used such tactics more than once. 32It is also disturbing that the conduct continued over an extended period of time. Eight events of domestic violence are worrying. Viewed independently there is a range of objective seriousness warranting a range of outcomes. Viewed as a prevailing mindset, the conduct warrants a deterrent sentence. As Price J observed in Hiron v R [2007] NSWCCA 336 at [34]: After each of the individual offences of assault the appellant was afforded the opportunity to reflect upon his actions and to appreciate that the violent abuse of his partner was wrong. 33The catalyst for cessation in these instances is to be found in the departure of the victim from the family home and the charging of the offender. 34In the minds of some the offence of common assault, in a general sense is regarded as a minor offence. The objective seriousness of the offence is reflected in the fact that although the offence may be dealt with on indictment it is almost exclusively dealt with in the summary jurisdiction of the Local Court. The absence of physical injury from the offence can also serve to undermine the seriousness of the offence (see R v Abboud [2005] NSWCCA 251). 35It is trite law to observe that there is more to the consequences of a crime of violence than physical injury. Violence carried out in a domestic context is aggravated in the manner described hitherto. In the matters before me the offences are to be regarded at the higher end of objective seriousness because of the fact that an assault committed on a pregnant mother to be brings with it significant potential danger to the health and wellbeing of the unborn child as well as the mother. 36The emotional harm arising from such conduct is also a reality to be taken into account. The court does not lose sight of the fact that the offender is a person of significant stature compared to that of his then wife. Her words used in each of the acts are clearly indicative of the natural concern of a mother for an unborn child. It should also be noted that sequences 5, 6 and 7, offences committed after the birth of the victim and offender's son, were committed in the presence of the son. Whilst it is realistic to accept the child was of an age where memory of the conduct is unlikely that does not diminish the seriousness of the conduct. 37I find the objective seriousness of each offence to be in the upper range of offending for the offence of common assault. 38The parties concede the nature of the offending in sequence 9 - the charge of assault occasioning actual bodily harm is towards the upper end of the range. It is assumed that concession relates to the upper end of the range of the sentencing limit of the Local Court. I make this observation because when approaching an offence such as assault occasioning actual bodily harm the objective seriousness of the offence is to be viewed from the perspective of the maximum legislated penalty - in this case 5 years imprisonment. So much is made clear by the now well established principle outlined in R v Doan (2000) 50 NSWLR 115. 39The court agrees with the observations of the parties as to objective seriousness. The submission by the Crown that constricting the victim's ability to breath elevates the risk of death or other injury is a realistic proposition. Acknowledgment by counsel for the offender that the custody threshold is passed in this matter is also realistic. 40Mr Vahl for the offender submits the Court could impose a sufficiently appropriate sentence on the offender through either the mechanism of section 12 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) or a sentence to undertake an Intensive Correction Order. Mr Kotsis for the DPP argues that a suspended sentence would be inappropriate and that if sentences of imprisonment are imposed; they should be imposed on a cumulative basis. 41I agree with the observations of both sides that the custody threshold has been crossed in these matters. The domestic context of the assaults, potential danger to the then unborn son and afterwards to a child held in his mother's arms or conduct committed in the presence of the child collectively warrant sentences of condign punishment. The threshold set out in section 5 of the Sentencing Act is crossed. 42Having come to this conclusion in accordance with the first of the steps outlined in R v Zamagias [2002] NSWCCA 17 it would be customary to determine the length of the individual sentences and thereafter the manner in which they are to be served. Before doing so I turn to the issue of section 12 of the Sentencing Act. Although there is a line of authority supporting the use of a suspended sentence in appropriate circumstances, as the Court in R v Taylor [2000] NSWCCA 442 at [49] observed -"suspended sentences provide little if anything by way of general deterrence". I agree. 43Domestic violence is such an entrenched and widespread problem that the need for general deterrence is perhaps stronger than might be argued for other offences. This being so I agree with the DPP, a suspended sentence is not appropriate. It may meet the purpose of denunciation but for an offender who comes before the court as someone unlikely to reoffend given the change in the family circumstances and encouraging progress in rehabilitation it would in the eyes of the community be tantamount to no penalty at all. As such it would not support the principle of general deterrence. 44The submission by counsel for the offender that a sentence of imprisonment to be served by way of an Intensive Correction Order has a greater degree of persuasiveness. It is clear from section 7 of the Sentencing Act that an Intensive Correction Order is a sentence of imprisonment. It was made clear in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 that such an order is "a significant sentence which has a real impact on the life of an offender and deprives him or her of liberty in a real sense".1 45The Report of the Sentencing Council in recommending the introduction of Intensive Correction Orders and part of the government's observations in the Second Reading Speech to Parliament warrants revisiting to highlight the policy considerations behind this type of sentence of imprisonment and to identify the reality that it is far from a soft option. 46At paragraph 7.26 of its report the Council noted:

It permits the courts to impose a sentence of imprisonment which emphasises its seriousness and which has a symbolic value for victims;
It enables the offender to maintain contact with family, friends and employment;
It can address the causes of the offending behaviour by providing for frequent contact with a community corrections officer and opportunities for treatment, counselling and education;
It can include an element of detention in the form of a curfew or other residential restrictions;
It avoids the contaminatory effects of imprisonment;
It is cheaper than full-time imprisonment;
It is compatible with the principles of restorative justice by returning a benefit to the community in the form of work on community projects, while retaining a strong element of punishment; and
Breach of its conditions can attract significant sanctions including a requirement to serve out the balance of the un-served term in full time custody. 47The Attorney General introducing the Bill providing for Intensive Correction Orders described the option as "designed to reduce an offender's risk of re-offending through the provision of intensive rehabilitation and supervision in the community" and that "an intensive correction order is a sentence of imprisonment of up to two years that is ordered to be served in the community, where offenders can be subject to a range of stringent conditions including 24 hour monitoring, regular community work and a combination of tailored educational, rehabilitative and other related activities." 48The offender should know that if he is sentenced to such an order there will be a condition requiring regular testing for the presence of drugs in his system. It is not a soft option. 49Having determined the ultimate aggregate of the sentences that ought to be imposed for these matters I can state on the record that they will not exceed in combination, 2 years imprisonment. The limitation on the use of Intensive Correction Orders set out in section 7(1) of the Sentencing Act correspondingly does not apply to the extent of excluding the offender from this sentencing option. 50Against the background of ongoing rehabilitation, underlying mental health issues, lack of serious antecedents, mindful of the need for denunciation, general and specific deterrence and taking into account the impact of the criminal offending behaviour on the victim I come to the view that the purposes of sentencing may be achieved by considering the alternative to the traditional form of imprisonment. This is not to say that the sentence ultimately to be imposed for these matters is guaranteed to be imposed by way of an Intensive Correction Order. If the offender is found to be unsuitable then he should be prepared to enter full time custody. I have already indicated a suspended sentence is not appropriate in matters of this type. 51Although I have indicated the total sentence will not exceed two years it is not appropriate at this time to pronounce the individual sentences. They are to await the Intensive Correction Report. 52These proceedings are adjourned until 4 September 2014 at 12 noon for the purpose of obtaining an Intensive Correction Report. The offender is to provide his contact details to Probation and Parole before leaving the Court premises.

4 September 2014 53The offender is before the Court today following an adjournment of the sentencing proceedings for the purpose of an assessment of suitability regarding an Intensive Correction Order. The basis for the adjournment is set out in earlier sentencing remarks. 54The Report provided by Community Corrections assesses the offender as suitable for such an order. Being satisfied with the approach to be taken in relation to the need to address some of the offender's problems I am prepared to make such an order in relation to those offences that warrant a custodial outcome. Of the 8 offences, 6 warrant a custodial outcome. 55There will be a measure of concurrent sentences and partial accumulation the effect of which will lead to an overall term of imprisonment of 18 months. The sentences in question together with the decision in relation to the manner in which they are to be served reflect the discount applied in relation to the timing of the offender's pleas of guilty. 56During the adjournment the offender was assessed as to his suitability for an Intensive Correction Order. He has been assessed as suitable to serve the terms of imprisonment in this fashion. 57The practical outcome of such an order means the offender will be under a lengthy period of supervision by officers of Community Corrections and engaged in activities that meet both the objectives of punishment and rehabilitation. In such an instance there is little perceived need for a lengthy parole period subject to supervision. 58The formal orders of the Court are as follows: Charge sequence 1 - Convicted and sentenced to imprisonment for a period of 6 months. Charge sequence 2 - Convicted and sentenced to imprisonment for 3 months. This sentence is to be served concurrently with and to commence on the same date as the sentence imposed in relation to Sequence 1. Charge sequence 9 - Convicted and sentenced to imprisonment for a period of 12 months. This sentence is to commence upon the expiry of the sentence imposed in relation to Sequence 1. Charge sequences 5 and 6 - Convicted. In respect of each sequence sentenced to imprisonment for a period of 6 months. The sentences for these matters are to commence on and from the date of expiry of the sentence imposed in respect of sequence 1. Charge sequence 7 - Convicted and sentenced to imprisonment for a period of 9 months. This sentence is to commence on and from the expiry of the sentence imposed in respect of sequence 1 and be served concurrently with other sentences ordered to be served on and from the expiry of that term. The total term of 18 months for the combined sentences of imprisonment commences today and expires on 3.3.2016. The Intensive Correction Order is subject to the mandatory conditions prescribed by cl 175 Crimes (Administration of Sentences) Regulation 2008. Without limitation these include that the offender must:

Be of good behaviour and not commit any offences
Reside at an approved address and not leave the State or Australia without permission
Comply with the directions of supervisor
Submit to alcohol and drug testing, surveillance and monitoring
Receive home visits from a supervisor
Participate in any activities to address the offender's offending behaviour and
Undertake 32 hours of community service work per month. Offence Sequences 4 and 8 - Convicted. As an alternative to imposing a sentence of imprisonment, given the lesser degree of objective seriousness in the conduct the offender is to be released in each matter conditionally upon entering a bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of 3 years from today. The bonds are to be subject to supervision by officers of Community Corrections for as long as deemed necessary but not less than 18 months. Each bond is further conditioned that for the period of required supervision the offender undertake random urinalysis as directed. The offender is to supply his contact details to the Probation and Parole Officer located at this Court before he leaves the Court premises. Judge Henson Chief Magistrate 4 September 2014

Footnotes 1 LexisNexis, Criminal Practice and Procedure NSW at [5-s 7.5]

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: 05 September 2014

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