R v Bucca

[2021] NSWDC 394

District Court of NSW|2021-07-22|Before: Honour Bathurst CJ, McHugh J

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2021-07-22

Before

Honour Bathurst CJ, McHugh J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

Judgment

Joseph Bucca ('the Offender') appears for sentence, having pleaded guilty to the offence H ending 319 sequence 6, being a single charge of specially aggravated break and enter and committing a serious indictable offence, in breach of s 112(3) of the Crimes Act 1900 (NSW). The circumstances of special aggravation were that during the commission of the break and enter, the Offender inflicted grievous bodily harm upon the victim, pursuant to s 105(1)(b) of the Crimes Act. This charge carries a maximum penalty of 25 years' imprisonment, and a standard non-parole period of 7 years' imprisonment.
Attaching to this charge are 5 further charges placed on a Form 1, being charge H ending 319 sequences 1 through 5, all of which are contravene a prohibition or restriction in AVO (domestic), in breach of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2009 (NSW). These charges each carry a maximum penalty of 2 years' imprisonment and/or a fine of $5,500.00 when prosecuted in the Local Court. They arise from an AVO taken out to protect Cleo Taueli and her children, with whom the Offender had a domestic relationship and a son.
The maximum penalties and the standard non-parole period are guideposts for a sentencing judge, and reflect the seriousness with which the community, through Parliament, views the offending.
There is also a related charge of contravening a prohibition or restriction, being H ending 319 (7), which is to be dealt with on a s 166 Certificate.
The charges on a Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequence. The Court does so by giving greater weight to 2 elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community's entitlement to extract retribution for serious offences: Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 at [65].
In Abbas, Bodiotis, Taleb and Amoun v Regina (2013) 231 A Crim R 413, a 5-judge bench of the Court of Criminal Appeal provided further guidance as to the manner in which a sentencing court may take into account criminality of Form 1 offences to increase the penalty for the principal offence. His Honour Bathurst CJ stated that: [t]he existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

[4]

Agreed Facts

I have been assisted by the parties agreeing upon facts relevant to the offending.
The victims are Dylan Gibson (hereafter referred to as 'the Victim') and Cleo Taueli ('Ms Taueli').
The Offender and Ms Taueli were previously in a domestic relationship for about 7 years. They have a 5 year old son as a result of their relationship and Ms Taueli has a second child from a previous relationship. Ms Taueli and her children reside at Delia Avenue, Budgewoi.
The relationship between the Offender and Ms Taueli ended in about September 2019.
On 5 September 2019, a final AVO for the protection of Ms Taueli and her children was made against the Offender. The AVO has the mandatory conditions. The AVO prohibits the Offender from contacting Ms Taueli and from going within 100 metres of any place Ms Taueli lives or works.
Since September 2019, the Offender continued to text Ms Taueli to enquire about their son. Ms Taueli provided updates in response. The Offender attended Ms Taueli's residence unannounced on about 10 occasions, since the AVO was made.
In 2018, Ms Taueli was introduced to the Victim, who was a friend of her brother. The Victim added Ms Taueli on Facebook and they developed a friendship.
In about August 2019, the Offender asked Ms Taueli about the relationship she had with the Victim. Ms Taueli informed the Offender the Victim was a friend.
On an occasion in about August 2019, the Victim visited Ms Taueli at her house. The Offender attended unannounced and met the Victim. The Offender was friendly with the Victim and was critical of Ms Taueli in front of the Victim. The Victim left the address and Ms Taueli told the Offender to leave.
In early May 2020, the Offender telephoned the Victim. The Offender was angry and raised his voice. He told the victim "I'm only going to tell you this once. Stay away from Cleo. I'm going to fucking find you". The Victim hung up and the Offender rang back. They then spoke for about an hour. The Offender told the Victim about his past relationship with Ms Taueli, including how he previously felt when Ms Taueli left him for another man and how he wanted to 'smash the guy's head in'. After the call, the Victim told Ms Taueli he did not want to cause her trouble.
Otherwise, the Offender had always been friendly towards the Victim and had made an effort to be nice towards him.
On about 7 or 8 May 2020, Ms Taueli was out the front of her property after walking the dog with her 2 children and the Victim. The Offender arrived in his vehicle and attempted to speak to Ms Taueli. The Offender then left. That act constituted sequence 1.
The following day the Offender arrived at Ms Taueli's residence and asked Ms Taueli if he could come in for a shower. Ms Taueli told the Offender to leave and he did. That act constituted sequence 2.
The following facts relate to sequence 3. Between 4:17pm and 7:53pm on 12 May 2020, Ms Taueli received 24 phone calls from the Offender. None of these calls were answered.
On the same day the Victim and Ms Taueli went to dinner. When they returned to Ms Taueli's address, the Offender arrived and parked his vehicle on the front lawn. The Offender spoke with Ms Taueli and the Victim for a short time. The Victim left and the Offender stayed for some period. Ms Taueli made plans to take her children to visit her friend in Jervis Bay for a weekend. Her plan was to depart on Thursday 14 May 2020 and return on Sunday 17 May 2020. She arranged for the Victim to look after her property and her dog named "Bulla" whilst she was away. The Victim advised her that he would come and go from the property and might stay there occasionally.
In the week leading up to 14 May 2020, Ms Taueli spoke with the Offender. The Offender asked Ms Taueli what plans she had coming up. Ms Taueli told the Offender that she was going to see her friend with the children. The Offender told Ms Taueli to have a nice time.
About a day or 2 later, Ms Taueli and the Offender spoke once again. The Offender asked who would be taking care of the dog. Ms Taueli told the Offender that the Victim was taking care of the dog and the house while she was away.
I pause to observe that on the Agreed Facts it cannot be said that either Ms Taueli and, more relevantly, the Offender were aware that the Victim would be at the house the night of the offending.
On Thursday 14 May 2020, Ms Taueli went away with her children. The Victim stayed overnight at her property on 14 and 15 May 2020.
The following facts relate to sequence 4. At 5:42am on Saturday 16 May 2020, the Offender sent an SMS message to Ms Taueli stating "Regardless, is bulla sorted". Ms Taueli replied that the dog was fine. At about 8:02am the Offender replied "With ur caretaker" and "Lol". Ms Taueli replied "Just dnt msg ok".
From 5:47pm, the Offender and Ms Taueli continued the text message conversation as follows: T: I just singed my eyelashes getting the pizza oven started T: (Image of Ms Taueli and child) T: Also… O: Wtf O: Hahaha O: Hahahah T: How weird is it O: I had to really look at that O: I was like whaat who is that O: I was like has luca had kids O: To his aunty? T: My face on Lucas body T: (3x Laughing emojis) T: Looks like gay phillipino or a lesbian T: Hahahaha
From 7:18pm to about 10:54 pm, the Offender and Ms Taueli engaged in the following text message conversation: T: Wats happening O: Having a feed at my mates house, his brewed up a big meat stew potatoes baked bread little salami jayz the whole lot. Fkn beautiful T: Fair enough O: R u awake T: Ye T: Wats happening T: Hello?
The following facts relate to sequence 5. Between 2:36am and 3:27am the Offender made 5 calls to Ms Taueli, which went unanswered.
At about 3:00am on Sunday 17 May 2020 the Victim came back to Ms Taueli's house, having been at a party.
The following facts relate to sequences 6 and 7, being the principal offence for sentence and the related offence. Between 3:00am and 4:40am the Offender attended Ms Taueli's address. The Offender was intoxicated. He had consumed about 20 beers. The Offender ripped a fly screen on a side window and entered the house. The Offender went to Ms Taueli's bedroom and observed the Victim sleeping in his underwear.
The Offender began assaulting the Victim, with punches to the head, whilst he was asleep. The Offender grabbed the Victim and dragged him through the house, into the living room, then the kitchen, and out to the backyard. The Offender continued punching the Victim to the head, a number of times, while in the backyard.
The Offender said "Stay out of my family. This is my family. I can't be here, yet you're here always". The Offender attempted to clean blood from the back door of the property before leaving.
At about 4:40am the Victim was discovered in the street by residents. He was wearing a t-shirt, underpants and socks and had serious facial injuries. A passer-by drove the Victim to Wyong Hospital.
About 1:30pm on Sunday 17 May 2020, Ms Taueli returned to her residence and discovered bloodstains in the kitchen, lounge room, hallway and on the bed sheets in her bedroom. Ms Taueli alerted Police who attended and conducted a crime scene examination.
Forensic analysis identified the Offender's fingerprint located at the side window of the house.
Later on Sunday 17 May 2020, the Offender telephoned Ms Taueli and made the following admissions: I was at a party drinking. I got heaps drunk. I was doing shots. I was going to stay in my car on the property. It was cold, and I didn't want to stay there. I was so pissed, it was like I was unconscious. I just thought about going to sleep in your garage with Bulla. I went to Lucca's bedroom window, I ripped the screen on the window, and went into Lucca's bedroom. I went into the front bedroom. I saw Dylan laying there. I should have just left then. I was just so pissed. I just smashed him in his sleep. I dragged him. I smashed him in his sleep. I just smashed him. I dragged him into the living room. I took him out the back and …. the shit out of him. I told Dylan to get his shit and leave. I left him out the back.
On 18 May 2020 at 5:27pm, the Offender telephoned Ms Taueli, but she missed the call. At 5:32pm Ms Taueli telephoned the Offender and they had the following conversation: T: What are you doing? Have you handed yourself in yet? O: I'm still just in shock. T: Hurry up. Go and hand yourself in. O: I will. I'm going to, I just need to organise my stuff. T: Well, what are you doing? You don't have that much stuff to organise. What about your parents? Have you spoken to your family? O: I'm sorry I've done this. I'm sorry to Dylan. I'm going to jail again. T: You're not growing as a person.
On 21 May 2020, the Offender attended Wyong Police Station and was placed under arrest. He participated in an electronically recorded interview in which he made the following admissions: 1. the Offender had been drinking, and had probably consumed 20 beers since 6pm (A8); 2. the Offender knew Ms Taueli was not there and the Victim had been asked to come and stay or feed the dog (A58); 3. the Offender ripped the flyscreen from the window and climbed through (A68); 4. the Offender walked into the bedroom with the torch on his phone and the Victim was asleep in the bed in his underwear (A70); 5. the Offender stopped and looked at the Victim (A72); 6. the Offender called out the Victim's name a few times (A124); 7. the Offender punched the Victim twice and then grabbed him (A124); 8. the Offender dragged the Victim out to the backyard and punched the Victim 3 or 4 more times (A124); 9. the Victim was conscious and the Offender was speaking to him saying "stay out of my family. This is my family. I can't be here, yet you're always here always" (A124); 10. the Offender knew he had done enough damage to the Victim and could see that he had really hurt him (A125-126); 11. the Offender saw blood at the back door and got a cloth and wiped it (A140); 12. the Victim was walking when he left him (A74); 13. the Offender was resentful because he had been stopped from seeing his family (A160); 14. the Offender rang the Victim 2 or 3 weeks prior and gave the message "Get out of my family. It's mine". After this he rang the Victim again and had a good chat to him, wanting to communicate as a gentleman (A166, 168, 172); 15. the Offender was affected by the Victim having such a good relationship with Ms Taueli and their son and dog. The Offender had been working and saw the Victim walking the dog and pushing his son on the bike (A177); and 16. the Offender admitted to entering the property and assaulting the Victim.
The Victim remembers having his eyes closed, not knowing where he was and the voice of the Offender saying "tonight's the night you die, fucker".
The Victim was transferred from Wyong Hospital to Gosford Hospital. The Victim was discharged from Gosford Hospital on 19 May 2020, with an urgent Ophthalmologist review to be undertaken once his facial swelling had subsided. The Victim was found to have suffered the following injuries: 1. severe facial swelling; 2. bilateral frontal scalp haematoma; 3. right floor of orbit blowout fracture, anterior wall or right maxillary antrum fracture (fractured eye socket); 4. bilateral angle of mandibles minimally displaced comminuted fractures, with the fracture lines involving the mandibular canals and extending to the roots of bilateral mandibular wisdom teeth (broken jaw in two places); 5. right retrobulbar mild fat stranding, suspicious for retrobulbar haematoma; 6. right intraconal and extraconal intraorbital emphysema; and 7. right periorbital pre-septal and post-septal soft tissue hematoma and emphysema, extending inferiorly to overlie the right cheek and mandible, with soft tissue haematoma and emphysema within the right submandibular and masseteric spaces.
On 21 May 2020, the Victim underwent surgery for open reduction and internal fixation of his bilateral mandible fractures at Westmead Hospital. The surgery involved the insertion of 2 plates and 8 screws to fixate the fracture segments in the jaw. On 23 May 2020, the Victim was discharged from Westmead Hospital.
The Victim presented for further review at Westmead Hospital on 26 and 29 May 2020. The victim's prognosis was that the plates and screws should have been able to be removed from his jaw in about November 2020, but that did not occur. In the Victim Impact Statement the Victim said that he is still waiting to hear back about the surgery.
Those are the Agreed Facts.

[10]

Crown Written Submissions

The Crown's written submissions were marked MFI 1.
The Crown commenced by submitting that, given the offending involved the commission of domestic violence offences, denunciation, community protection and specific and general deterrence should be given special weight in the sentencing exercise. There was a dispute between the parties as to whether it was a domestic violence offence, which I consider below.
In respect of objective seriousness, it was submitted that the offending was elevated, as the offence of recklessly inflicting grievous bodily harm is "at the higher end of the scale of seriousness when considering the maximum penalties provided for serious indictable offences". It was further submitted that the substantial degree of unprovoked violence with "a significant degree of persistence and ferocity", which resulted in multiple facial fractures and reconstructive surgery, might further elevate the objective seriousness of this offending.
Whilst the Crown submission would be apposite in an offence of break and enter and commit serious indictable offence simpliciter, which carries a maximum penalty of 14 years' imprisonment, the offence charged was under s 112(3), which in this matter requires the infliction of grievous bodily harm and attracts a maximum sentence of 25 years.
Regarding the relationship between the Offender and Victim, it was contended for by the Crown that as the offence was one of domestic violence, "the authorities are clear that it is a matter which increases the objective seriousness".
Overall, the submission from the Crown was that these factors would lead to a finding that the offending fell above the mid-range.
In terms of s 21A factors, the Crown submitted that the following aggravating features applied: 1. the offending happened in the home of the victim or any other person (s 21A(2)(eb)). In this respect, it was submitted that it was not necessary that the home be the only place of residence of the Victim, or even the primary place of residence, but is a question of "whether the offending involves a violation of the victim's reasonable expectation of safety and security in the premises in question"; 2. record of previous convictions (s 21A(2)(d)). The Crown submitted, and I accept, that the Offender has a record for serious personal violence offences, including assault occasioning actual bodily harm, choking and contravening ADVO's. I intend to find this as an aggravating factor; 3. the Offender was on conditional liberty at the time of offending (s 21A(2)(j)). As the Offender was subject to 4 Intensive Corrections Orders for previous offending upon Ms Taueli, I intend to find this as an aggravating factor, and accept the Crown's submission that "it has been held to be a most significant breach of conditional liberty to commit offences of domestic violence in breach of an ADVO". Offending of this nature cannot and will not be tolerated in the community; and 4. multiple victims impacted (s 21A(2)(m)). The Crown submitted that both the primary victim, Mr Gibson, and Ms Taueli were jointly affected by the offending, given that it was Ms Taueli's home in which Mr Gibson was assaulted, thereby violating her safety and security "irrespective of the fact she was absent". Given that the impact on Ms Taueli was minimal, I decline to find this as an aggravating factor.
In respect of mitigating factors, the Crown conceded that the Offender's guilty plea may be considered (s 21A(3)(k)). I make this finding, and will afford the Offender the appropriate discount of 25%.
It was further submitted that the Offender's prospects of rehabilitation should be considered "somewhat guarded, or neutral" for reasons including slowness in engaging with counselling or programs regarding domestic violence, and the fact that the subject offending was committed while on conditional liberty for domestic violence offences. For both of the reasons submitted, I accept this submission, though I do acknowledge that the Offender has commenced taking steps towards rehabilitating himself.
In respect of the Form 1 offences, the Crown submitted that they are separate and distinct offences which are not "part and parcel" of the principal offence. For this reason, it was submitted that this should be reflected through an appropriate increase in the penalty imposed for the principal offence. I accept that submission, particularly as the victim of the offending was not the same victim of the principal matter for sentence, and also given the Offender's history of failing to comply with conditions of Apprehended Domestic Violence Orders.
In relation to the commencement date, the Crown submitted that the Court has the discretion to determine the commencement date of the sentence, given that not all of the pre-sentence custody is solely referable to the subject offending, though it was the reason for the revocation of the previous Intensive Corrections Orders. In this respect, the Crown submitted that in selecting a commencement date, the Court "must be cautious not to double count the breach of conditional liberty … by making a sentence entirely cumulative on breach of conditional liberty that has resulted in revocation and a period of custody where that breach is also relied upon as an aggravating factor". I have borne that in mind, and intend to backdate the commencement to allow partial concurrency between this sentence and the time served following the revocation of the Intensive Corrections Orders.
Finally, the Crown submitted that a finding of special circumstances may be open to the Court based on the Offender's need for rehabilitation and it being his first time in custody. I also intend to make this finding.

[11]

Offender's Written Submissions

Marked MFI 2, the Offender's primary written submissions sought to rebut a number of submissions made by the Crown.
In respect of objective seriousness, counsel for the Offender pointed to the fact that the relevant serious indictable offence which constituted the breach of s 112(3), and that the specially aggravating circumstances relied upon are all inherent in the same act, in submitting that this particular offence could be found to fall "at the lower end of the scale, well below the mid-range" of objective seriousness. That is, that the indictable offence in s 112(1)(a) of inflicting grievous bodily harm is the same act qualifying the offence of circumstances of special aggravation. It was submitted that while the prosecution may rely upon the same act to prove both the commission of a serious indictable offence and relevant circumstances of special aggravation, caution must be given to not to double count the circumstance, which was the infliction of grievous bodily harm in this instance.
In addition, counsel submitted that the Court should recognise that as the s 105A 'aggravating circumstance': is entirely subsumed within the 'special aggravating circumstances', it is important not to double count by additionally ascribing weight to the aggravating circumstance, distinct from the special aggravating circumstance.
In this regard, counsel further submitted that given the necessary overlap between the s 105A 'circumstances of aggravation' and 'circumstances of special aggravation', the lack of "distinct aggravating circumstances marks this matter as having a lower level of objective seriousness, as an example of a s 112(3) offence". This was discussed in oral addresses with counsel.
Counsel for the Offender sought to further bolster this submission by characterising the nature of the grievous bodily harm inflicted upon the victim, while "not seeking to diminish its seriousness or its undoubted impact upon the victim", as falling at the lower end of the scale for an offence of that serious type.
In respect of the domestic violence context, counsel for the Offender submitted that while it may be open to the Court to consider this offence through such a lens, it should be differentiated from authorities relied upon by the Crown, insofar as this offending was not perpetrated by a male upon a female with whom they maintained a relationship. Again, this was the subject of addresses, referred to below. Counsel did not accept that any greater weight should be given to principles of general and specific deterrence, denunciation or the need for community protection, even if viewed in a domestic violence context.
Further submissions were made by counsel as to the lack of planning and the absence of a weapon, both of which I accept.
Turning to aggravating factors, counsel for the Offender submitted, among other points, that if the Court chose to accept 'in the home of victim or any other person' as an aggravating factor then, as a matter of practicality, almost all instances of offending under s 112(3) would attract the same consideration, thereby diminishing its significance as an aggravating factor under s21A. Although the submission was not expressed in these terms, it may also be said that to find this aggravating factor may risk double counting, as the offence is breaking into 'any home'. I decline to find 'in the home' as an aggravating factor.
In relation to the aggravating factor 'multiple victims impacted', counsel for the Offender submitted that by finding the Offender's ex-partner, Ms Taueli, as one of 'multiple victims', the Court might risk double-counting, as the Offender's entry into her house is also the subject of a count of contravene AVO. I accept this submission, and for this reason, and the one referred to above, I do not find the principal offence as involving multiple victims per s 21A(2)(m).
I have had regard to counsel for the Offender's written submissions as to mitigating factors, however, I only intend to find that the Offender's guilty plea and demonstration of remorse apply in the circumstances.
Counsel for the Offender made reference to the Offender's upbringing in submitting that the Court might find that he suffered childhood disadvantage of the type contemplated in Bugmy v R [2013] 249 CLR 571. In making this submission, the Court was referred to the Offender's affidavit, which formed part of Exhibit 1, as well as factors including his parents' early separation, witnessing domestic violence and general familial instability. Noting the inconsistencies between the letter and affidavit provided by the Offender, as well as the general nature of the suggested childhood disadvantage, I do not accept that this Offender's upbringing rises to the Bugmy threshold.
In respect of assistance to authorities, counsel pointed to "early and fulsome admissions" made by the Offender to police in submitting that the prosecution was assisted to the extent that a discount pursuant to s 23 of the CSP Act and in accordance with the decision in R v Ellis (1986) 6 NSWLR 603. Again, for reasons which I will explain, I reject this submission.
Counsel for the Offender submitted that the Offender's prospects of rehabilitation should be assessed as "good", given his assertions of wanting to address his relationship and domestic violence issues, as well as having the "training and skills" to be productively employed once out of custody. Given this Offender's previous record of like offending, I am only able to assess his prospects of rehabilitation as guarded. It follows that the assessment of the risk of re-offending is also guarded.
Turning to commencement date, counsel for the Offender made a similar submission to the Crown as to avoiding double-counting time spent in custody, and also submitted that it was open to the Court to backdate any sentence to commence on the date the Offender first entered into custody. I intend to commence this sentence at a date between the Offender first entering custody and the commencement of time spent solely in respect of this offending.

[14]

Objective Seriousness

In respect of objective seriousness, the Crown conceded that the degree of trauma, psychological and physical injury inflicted on the victim, while serious, is "inherently part of a grievous bodily harm offence, and a s 112(3) offence". It would not, therefore, qualify as an aggravating factor pursuant to s 21A(2). I accept this submission.
The Crown did, however, maintain that the degree of physical, mental and also financial harm suffered by the victim might be taken into account in assessing the objective seriousness generally, rather than as an aggravating factor. Still, this was framed in the context that the harm caused was "at the upper end of perhaps what some victims might suffer", however it is "not above and beyond something outside of the ordinary spectrum of the offence". I will have regard to the nature and extent of harm when determining objective seriousness.
More generally, the Crown referenced the circumstances of aggravation and of special aggravation in seeking to clarify their written submission that where the offending was referenced as being at the "higher end of the scale", it was not intended to mean the most serious offence, but rather that "it falls higher than many". I cannot accept this submission as I can contemplate more serious examples of special aggravation, particularly where the Offender is armed with a dangerous weapon.
Counsel for the Offender maintained the submission that considering that the relevant s 105A aggravating factors and special aggravating factors were "entirely bound … in one overall act which constitutes the strictly indictable offence", in the context of "the wide range of matters" that fall under this offence provision, this particular example is "significantly unusual". While accepting that any matter charged under the special aggravation circumstances is inherently serious, the fact that a number of aggravating circumstances potentially involved "largely mirror one another" and are incorporated within the specially aggravating circumstances, a lower degree of objective seriousness is made out.
In respect of counsel's submission that the offending was "well below the mid-range", this was clarified that the descriptor of "well below" applied "if one is looking upon the mid-range as a narrow spectrum", however if the mid-range was considered in broader terms, then than "the more general description of below (the mid-range) would be appropriate".

[16]

Domestic Violence

The Crown sought to clarify and maintain its submission that, although she was not present at the time of the assault, Ms Taueli remained a victim of the offending. This was put on the basis that the offences occurred in her house, a place which the Offender was prohibited from visiting, and to which "she returned home to find it broken into with blood everywhere". It was conceded that Ms Taueli was not a victim of the violence but, in circumstances where there is a history of domestic violence and an intrusion into her home, she remained a victim of that criminal offending.
Counsel for the Offender again drew attention to the circumstances in which the offence of violence was committed, that being upon the victim and not on Ms Taueli. However, following further discussions by the Crown and reference to the relevant definitions under the Crimes (Domestic and Personal Violence) Act, it was acknowledged that the offending may be considered a personal violence offence for the purposes of the Act.
I find that that pursuant to section 4(b1) of the Crimes (Domestic and Personal Violence) Act, that the offence was a personal violence offence, as it is an offence under s 112(3) of the Crimes Act, wherein the serious indictable offence was inflict grievous bodily harm (s 35 Crimes Act), referred to in s 4(a) of the Crimes (Domestic and Personal Violence) Act.
In considering the practical effects of such a finding, counsel for the Offender conceded that this would result in the imposition of a Final Apprehended Violence Order. The Crown reiterated their written submission that such a finding would increase the objective seriousness by requiring greater consideration of general and, in this case, specific deterrence. I accept the Crown's submission in this respect.
The Crown submitted that the s 112(3) offence ought to be recorded as a domestic violence offence by reason of s 12 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Those words are defined in s 11. Whilst I do find that the offence was a personal violence offence, I decline to record it as a domestic violence offence in circumstances where the victim was not a person with whom the Offender had a domestic relationship. The fact that Ms Taueli was also impacted, albeit minimally, by the offending does not warrant the finding for which the Crown contends.

[27]

Ellis Discount

Counsel for the Offender contended that a further discount should be afforded to the Offender for assistance provided to authorities.
The issue of assistance to authorities was recently considered by the Court of Criminal Appeal in Irwin v R [2021] NSWCCA 172. In considering the circumstances in which an Ellis discount might apply, Rothman J made a number of significant observations. While I acknowledge this is a somewhat lengthy extract, it is my view that the following remarks are apposite in the circumstances: [80] Over and above the foregoing, the circumstances of the offending were well known and easily proved. That which was said by the applicant was not said in circumstances "where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence". [81] In terms referable to s 23 of the Crimes (Sentencing Procedure) Act, that which is required to be assessed is the degree to which the offender has assisted authorities in, relevantly, the detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. … [83] I have above cited a passage from Ellis, supra, which is now codified, as stated above, in s 23 of the Crimes (Sentencing Procedure) Act. Notwithstanding the codification of the allowance for assistance, the comments of the Court in Ellis and the cases that followed it in time provide guidance for the application of s 23. [84] Assistance is a matter of mitigation and the offender bears the onus of proof, on the balance of probabilities, to establish that such assistance has been given and that a discount ought to follow.
As was discussed during the course of the sentence hearing, and given the nature of the disclosures made, I do not consider it appropriate that any such discount of the nature contemplated in R v Ellis, or by s 23, be made.
It is clear from the Agreed Facts that the Offender made disclosures to Ms Taueli which were similar to those made to the police and, in any event, I do not believe that a significant amount falls from those disclosures. In my view, the Offender has not disclosed criminality that would not otherwise have been detected, nor admitted guilt that was otherwise unknown (see Le v R [2019] NSWCCA 181 at [52]-[53]). In the circumstances, I find that the Offender has failed to discharge his onus entitling him to any further discount.

[30]

Conviction and Sentence

Mr Bucca, you are convicted of the following offences: 1. offence H ending 319 sequence 6, being specially aggravated break and enter and committing a serious indictable offence, in breach of s 112(3) of the Crimes Act 1900 (NSW); and 2. offence H ending 319 sequence 7, being contravene a prohibition or restriction of an Apprehended Violence Order (domestic), in breach of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
I intend to impose an aggregate sentence. Before doing so, I provide the following indicatives (after 25% discount for the early guilty plea) and, for the primary offence, an indicative non-parole period, as follows: 1. for sequence 6, an indicative head sentence of 4 years and an indicative non-parole period of 2 years and 5 months; and 2. for sequence 7 an indicative sentence of 12 months.
For those offences, you are sentenced to an aggregate head sentence of 4 years and 6 months commencing 22 September 2020 and expiring on 21 March 2025. The non-parole period of 2 years and 8 months expires 21 May 2023, at which time you will be eligible for release on parole.
Further, as this offence meets the definition of personal violence offence (s 4(b1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)), albeit one where the person in need of protection was not the victim, following the admission of guilt, I impose a Final Apprehended Violence Order, pursuant to s 39, for a period of 5 years, commencing today and expiring 11 August 2026. The order is for the standard prohibitions in s 36: 1. assaulting or threatening the protected person, Ms Cleo Taueli, or a person with whom the protected person has a domestic relationship; 2. stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship; and 3. intentionally or recklessly destroying or damaging any property, or harming an animal, that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship.