R v Gagliardi

Objective seriousness

1. There are no standard non-parole periods in respect of the offences or related offences. The first and third offences have a statutory maximum penalty of 5 years' imprisonment, and the second offence has a maximum penalty of 12 years' imprisonment.
2. The s 13 related offence of intimidation has a maximum penalty of five years' imprisonment, and the s 14 offence of breaching an AVO has a two-year maximum period of imprisonment. These maximum penalties provide yardsticks and inform the objective seriousness of the offences.
3. Ms Gagliardi's criminal record comprises contraventions of AVOs in 2007 and the 2010 to 2012 conduct noted earlier, as well as the matters before the Court.
4. Ms Gagliardi is entitled to a discount on sentence for the utilitarian value of the plea. Although her offences occurred in September 2017, Ms Gagliardi was held unfit to plead until early this year, when fitness to plead was determined by the Mental Health Review Tribunal. The offences were committed before the current fixed discounts for guilty pleas were introduced, but the parties are agreed that Ms Gagliardi is entitled to a 20% discount on sentence for the plea, which I accept for the utilitarian value of the plea.
5. The offences all concern one episode occurring in a brief period of time when Ms Gagliardi damaged Ms Sterjovski's car, assaulted her and intimidated her whilst using an offensive weapon. The first related offence ended immediately before the conduct constituting the offences, and the second related offence was a relatively minor conduct that occurred a few days after the offences.
6. Whilst some features of the conduct of Ms Gagliardi constituting the offences might satisfy an aggravating circumstance set out in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, such as violence, and use of a weapon, those same factors are elements in one or other of the offences, and thus, the Court is not to have regard to them as aggravating offences under the subsection.
7. Matters of aggravation that are not an element of any of the offences charged include that the offence was committed in the home of the victim. A home has been held to embrace an area of the property surrounding the house, including the driveway since the expectation of safety in one's house extends beyond the actual residence to "the area on the same premises, at least reasonably adjacent to that building". [1] Nevertheless, the extent of aggravation is a matter of discretion and is perhaps modified in this case by the absence of intrusion into the victim's house. [2]
8. A significant factor in the present case is the mental condition of the offender. In his most recent report of 30 December 2020, Dr Stephen Allnutt, a forensic psychiatrist retained by the Crown, found Ms Gagliardi to have a delusional disorder and may have a paranoid schizophrenic illness, [3] a finding affirmed in a report dated 13 July 2019 by Dr Richard Furst, another forensic psychiatrist. [4] It is not in dispute that the mental illness of Ms Gagliardi played a significant and direct role in the commission of the offence.
9. As earlier indicated, Ms Gagliardi's mental condition was also the cause of significant delays in the proceedings when she was, for some years, found to be unfit to plead.
10. When the offender was eventually found to be fit to plead based on the report of Dr Allnutt dated 30 December 2020, that same Crown expert regarded a mental illness defence as being available to Ms Gagliardi in respect of the offences, a matter with which Dr Furst agreed. [5] The direct relevance of that defence is absent now that Ms Gagliardi has pleaded guilty, but it indicates the substantial impact of mental illness in the commission of the crimes. The 30 December 2020 report of Dr Allnutt indicates that Ms Gagliardi was not taking medication or seeing a mental health professional at the time of the offences.
11. In these circumstances, the moral culpability of Ms Gagliardi must be reduced, and factors such as general deterrence, retribution and denunciation have less weight, especially because the mental illness contributed to the commission of the offences in a material way. [6] It is also significant that since the offences some four years ago, Ms Gagliardi has not reoffended, although she has been on bail, and she has continued to engage with treatment and been compliant with her medication.
12. However, notwithstanding the effect of mental illness, the plea involves a concession that Ms Gagliardi knew what she was doing, so the appropriate mitigation of the sentence on mental illness grounds should not be exaggerated. [7] In Ms Gagliardi's favour, her psychiatric condition was not suggested to result from the deliberate reckless taking of drugs.
13. As stated in DPP (Cth) v De La Rosa, [8] as Ms Gagliardi's mental illness contributed to the commission of the offences in a material way, her moral culpability and thus accountability are reduced, the need for denunciation is reduced, the case is an inappropriate vehicle for general deterrence, specific deterrence of crime by the offender is not so significant, and a custodial sentence may be expected to weigh more onerously on Ms Gagliardi. The mitigating factor of mental illness is reflected in s 21A(3)(j) of the Crimes (Sentencing Procedure) Act, which provides that an absence of full awareness of the consequences of her actions is to be taken into account in mitigation.
14. When these matters are considered against the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act, the sentencing issues of prevention of crime, rehabilitation and protection of the community remain as the most important considerations. [9]
15. In assessing questions of rehabilitation and protection of the community, the Court recognises the real risk that imprisonment could have a significant adverse effect on the offender's mental health, [10] and that treatment is likely best to occur outside the prison system. [11] Whilst the period of imprisonment may operate to secure the protection of the community for the period of incarceration, it may not serve that purpose of protection thereafter, once the offender is granted parole or the sentence is concluded, especially if treatment during incarceration has been ineffective or the rehabilitation unachieved.
16. As to the particular offences, the first offence involved not destruction of the car but damage to it, involving damage to the windscreen and the bonnet. This damage, coupled with the damage to the driver's side window, was not established to be significant in value, which tends to lessen the objective seriousness of the intentional destruction or damage to property offence.
17. The circumstance that the owner of the property was present increased the trauma of the event and makes it more serious. In my view, the type of instrument used in this offence is not so significant, as the nature of the damage is a significant feature and falls at the lower end of the range.
18. As to the second offence, the "use" of a weapon with intent to commit an indictable offence, as occurred in this case, creates a level of seriousness greater than the other alternatives of the offence of "attempt" or "threaten to use" or "possession" only of an offensive weapon, and should be taken into account as an aggravating factor. [12]
19. The type of offensive weapon involved is less serious than a firearm, but still a very dangerous weapon, perhaps comparable to a machete. [13] The use of the axe, swinging at the victim and the head of the victim is also a more serious use among the range of uses contemplated by the offence.
20. On the other hand, the element of intent to commit an indictable offence concerns the offence of intimidation which is on a lesser scale than other possible indictable offences involving the use of an offensive weapon that would come within s 33B(1) of the Crimes Act.
21. Accepting the Crown's submission that intimidation is at the lower end of the possible offences intended, the significantly reduced moral culpability of the offender due to the direct impact of her psychiatric condition, and the circumstances of the seriousness of the indictable offence is a relevant factor but not determinative, [14] the offence falls below the mid-point of offences of this type. Although the swinging of a small axe near the seated victim might indicate an intention of more serious offences than intimidation, the De Simoni principle [15] prevents the Court from considering that as an aggravating circumstance. [16] Harm has been held to be an aggravating factor, [17] but as harm is an element of the third offence, it is inappropriate to double count as aggravating the s 33B offence.
22. As to the final offence, assault occasioning actual bodily harm, the level of physical injuries falls at the lower end of actual bodily harm. The graver the injury, [18] and the higher degree of violence, [19] the more serious the offence. So the lower level of actual bodily injury renders the gravity of the offence less serious.
23. The violence of a swinging axe is a significant level of violence. There was no evidence of ongoing mental harm to the victim. On the other hand, the manner of the assault was undoubtedly frightening, inducing terror, and the conduct was a serious example of this offence. I place the offence in the mid-range of assault constituting this offence.
24. Both of the related s 166 offences of stalking and contravention of an AVO involve (or largely involve) the use of a telephone and are accepted, as the Crown submits, to be a lower range of objective seriousness. The final offence, in particular, where the offender sought to inquire after the health of the victim is at the lowest level of this form of offence.

Subjective considerations

1. I take into account evidence of Ms Gagliardi's improved and consistent compliance with her medical regime, recorded in Dr Furst's report in the history presented by Ms Gagliardi's mother, and by an examination of the mental health file showing that Ms Gagliardi was taking Abilify every four weeks as prescribed.
2. I accept the Crown's submission that the Sentence Assessment Report indicates Ms Gagliardi has "minimal insight into her offending". [20] However, in circumstances where the offences were contributed to significantly by her mental illness, a matter which has improved with her greater compliance with her mental health regime, this conclusion is not unexpected.
3. The Sentencing Assessment Report notes a non-compliance at the time of the offences and that Liverpool Community Mental Health confirmed that she has remained compliant with her medication for three years and she has had regular psychiatric reviews every 12 weeks. She was subject to a community treatment order in 2018 before being discharged due to ongoing compliance. She was assessed at "medium/low risk of reoffending", a conclusion I accept.
4. As the conduct constituting the three offences the subject of sentencing all occurred in one brief episode, to which the lower scale of the related offences are connected, I think it appropriate to impose an aggregate sentence.
5. Ms Gagliardi is a 50-year-old woman who lives with her mother and is currently her mother's carer. She spent three months in a psychiatric hospital and is on bail in respect of the offences. The parties agree she is entitled to a credit of one and a half months pre-sentence custody.
6. Ms Gagliardi has consented to a final Apprehended Personal Violence Order [21] for five years until 30 November 2026 to not contact Ms Sterjovski in any way other than through a lawyer and to not assault, threaten, stalk or intimidate her or destroy or damage her property or anyone else with whom she has a domestic relationship and not go within 100 metres of the borders of Ms Sterjovski's residence, place of work or a listed address. The penalty for breach includes imprisonment for up to two years.
7. I have given consideration to the sentencing statistics in respect of the offences, both under the sentencing regime at that time and currently, although they are of limited utility in the present case, which involves a significant component of mental illness.
8. I have considered the various alternatives to imprisonment, and I accept the Crown's submission that given the seriousness of the offence, no other penalty other than a sentence of imprisonment is appropriate.
9. Considering the impact of the mental illness, the 20% reduction for the utilitarian value of a plea, the one-and-a-half months of pre-sentence incarceration and reducing the sentence on account of these matters, I consider that a residual sentence of two years and four months is appropriate. Without these specific numerical discounts, the sentence would be about three years and one month.
10. I specify the following indicative sentences in respect of the offences: 1. In respect of the 195(1)(a) offence of intentional damage to property of another, six months' imprisonment. 2. In respect of the s 33B(1)(a) offence of use of an offensive weapon with intent to commit an indictable offence of intimidation, 20 months' imprisonment. 3. In respect of the s 59(1) offence of assault occasioning actual bodily harm, six months' imprisonment. 4. In respect of the related offence of stalk or intimidate with intent to cause fear of physical harm or mental harm, two months' imprisonment. 5. In respect of the contravention of the AVO, a six-month community correction order.
11. I recognise that there is some uncertainty about whether a court should specify an indicative sentence not involving a period of imprisonment, but I have done so in accordance with R v Price. [22]
12. As the proposed aggregate term of imprisonment is less than three years, consideration should be given to whether an intensive correction order is appropriate in accordance with s 68 of the Crimes (Sentencing Procedure) Act.
13. Section 66 of the Crimes (Sentencing Procedure) Act provides that for an intensive correction order, community safety is the paramount consideration. I have earlier indicated that while imprisonment provides safety whilst the offender is in custody, it may be counterproductive in the longer term. I am not persuaded in this case that serving the sentence by way of full-time detention is likely to best address the risk of reoffending and community safety. Here Ms Gagliardi has been of good behaviour in the four years since the time of the offences, has not approached Ms Sterjovski, has been compliant with her medication regime, and has agreed to an AVO to not approach or have any personal contact with Ms Sterjovski for five years. In my view, an intensive correction order would best serve the protection of the community and Ms Gagliardi's rehabilitation.
14. The standard conditions applicable to an intensive correction order under s 73 of the Crimes (Sentencing Procedure) Act are two-fold.
15. First, Ms Gagliardi must not commit any offences. One aspect of that is that she must not breach the AVO, and so she must have no contact with or approach premises connected with Ms Sterjovski. Any breach of the AVO will also contravene conditions of the intensive correction order and likely result in imprisonment for the duration of her sentence.
16. Secondly, Ms Gagliardi must submit to supervision by a Community Corrections Officer.
17. In addition, s 75A of the Crimes (Sentencing Procedure) Act provides that the Court must impose at least one additional condition. Participation in a rehabilitation program or receiving treatment is an available additional condition in s 73A(2), as are a non-association condition and a place restriction condition. I propose to impose conditions to this effect.
18. The additional conditions are that: 1. Ms Gagliardi must continue to have regular psychiatric treatment reviews every 12 weeks with Liverpool Community Mental Health to confirm she is complying with her medication regime. 2. She must continue to receive Abilify injections once a month or such other treatment as her treating physician and psychiatrist prescribe. 3. As a condition of the intensive correction order, Ms Gagliardi will be subject to similar restrictions to those in the AVO, namely that she must not contact Ms Sterjovski by any means directly or indirectly other than through a lawyer, and she must not approach within 100 metres of the boundary of any place where Ms Sterjovski live, works or the address of 9 George Street, Penshurst.
19. Given her age, and her obligation to care for her mother, and engage in the mental health treatment, I do not propose to impose any community service obligation.

Conclusion

1. Ms Gagliardi, would you please stand. Upon your plea of guilty to the charges, you are convicted of: 1. Intentional damage to property of another, namely the motor vehicle of Svetlana Sterjovski, under s 195(1)(a) of the Crimes Act 1900. 2. Use of an offensive weapon with intent to commit the indictable offence of intimidation of Svetlana Sterjovski under s 33B(1)(a) of the Crimes Act 1900. 3. Assault occasioning actual bodily harm to Svetlana Sterjovski under s 59(1) of the Crimes Act 1900. 4. Stalking and intimidating Svetlana Sterjovski with intent to cause her fear of physical and mental harm under s 13 of the Crimes (Domestic and Personal Violence) Act 2007. 5. Knowingly contravening a prohibition or restriction in an Apprehended Personal Violence Order under s 14 of the Crimes (Domestic and Personal Violence) Act 2007. 1. You are sentenced to an aggregate term of imprisonment of two years and four months. 2. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed upon you is to be served by way of an intensive correction order. The sentence will commence today and will conclude on 13 April 2024. 3. You must report to the Community Corrections Office at Liverpool as soon as practicable but no later than seven days from today. 4. The standard conditions of an intensive correction order apply, namely, you must not commit any offence and you must submit to supervision by a Community Corrections Officer. 5. The following additional conditions apply: 1. You must continue to have regular psychiatric treatment reviews every 12 weeks with the Liverpool Community Mental Health, including to confirm that you are compliant with your medication regime. 2. You must continue to receive the Abilify injections once a month or such other treatment as your treating physician and psychiatrist prescribe. 3. You must not contact Svetlana Sterjovski by any means directly or indirectly other than through a lawyer and you must not approach within 100 metres of the boundary of any place where she lives, works or the address of 9 George Street, Penshurst. 1. Finally, you are now directed to attend the court registry where a copy of this order will be explained and given to you.

Endnotes

1. R v Lulham (2016) 263 A Crim R 287 at [5]; [2016] NSWCCA 287 at [5].
2. Lulham at [6].
3. Exhibit A, p 45.
4. Exhibit A, p 21.
5. Exhibit A, p 22.
6. Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.
7. R v Wright (1997) 93 A Crim R 48 at 51.
8. (2010) 79 NSWLR 1 at [177].
9. See De La Rosa at [177].
10. R v Verdins [2007] VSCA 102 at [32], Courtney v R (2007) 172 A Crim R 371 at [14].
11. R v Engert (1995) 84 A Crim R 67 at 71.
12. R v Chisari [2006] NSWCCA 19 at [31] and cases at [50-140] of the Sentencing Bench Book.
13. Regina v Drew [2000] NSWCCA 384 at [15].
14. R v Huynh [2005] NSWCCA 220.
15. R v De Simoni (1981) 147 CLR 383 at 389.
16. R v Overall (1993) 71 A Crim R 170 at 175; R v Baugh [1999] NSWCCA 131 at [35].
17. R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97.
18. Cf Waterfall v R [2019] NSWCCA 281 at [33], [35] and other decisions at [50-040] of the Sentencing Bench Book.
19. See R v Bloomfield (1998) 44 NSWLR 734 at 740, Regina v Zhang [2004] NSWCCA 358 at [18].
20. Exhibit A, p 49.
21. Exhibit 1.
22. [2016] NSWCCA 50 at [76], [80], cf JM v R [2014] NSWCCA 297 at [39], point 9. 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: 24 October 2022