R v Gagnuss

Agreed facts

1. The offender and the complainant had been in a relationship for about four months. On the evening of 1 March, they were at the complainant's house in Southern Wollongong. During the evening she ended the relationship. He left her home but returned a short time later, banging on the door and waking her three children. They were aged eight, ten and 12. He then went to the complainant's bedroom window and yelled out some remarks, indicating his jealousy of her. He left after abusing her. On leaving the premises that evening, he damaged the gate.
2. A short time later he returned to her home. He removed the screen from the bedroom window. He then went through the shut, but unlocked window. He spoke to the children and asked where their mother was. He then left and banged on the front door as he walked down the side of the house. At that stage the complainant locked the doors and called the police.
3. Shortly after he left her home, he began sending her text messages, using various platforms. There were 195 in all. They included abusive voice messages. One text message included a picture of what appeared to be a pistol, and the words "I'm a good shot". One abusive message ended with the words "I will kill you", and another abusive term.
4. Police later searched the offender's home. A box was found in the fridge. Inside the box was a black Glock style air pistol. Written on the front was "Glock 17 tact toy. This product is a toy". The photographs tendered show that, as is sometimes the case, there was nothing about the pistol that distinguished it as a toy. For example, some such items have orange markings. It was a battery-operated air pistol capable of firing gel pellets. It is a pistol as defined by s 4(1) of the Firearms Act. He was not licenced to hold it.

The guilty plea

1. Gagnuss' plea of guilty requires that I reduce any sentence otherwise necessary by 25%. That reduction reflects the utilitarian value of the early plea. The plea has other value. There was acceptance of responsibility at an early stage. He has also given evidence how ashamed he was and expressed some empathy for his former partner and her children. All matters I will take into account.

Objective seriousness

1. In her written submissions, Ms Kerr, solicitor for the Director of Public Prosecutions, noted matters which go to the objective seriousness of the offending. The offender should not be punished beyond what is required by that objective seriousness. Ms Kerr's submissions assisted in my assessment of the objective seriousness of the offence. Mr Anderson, counsel for the offender, accepts Ms Kerr's summary.
2. The events occurred in the domestic context. They were acts of violence. The break and enter was an act of domestic violence. A woman is entitled to feel safe in her own home and feel that her children's safety will be equally respected, particularly, by someone who she was prepared to have a relationship with. Gagnuss' demands, his shouts, his abuse directed at the complainant, were heard by the children and on entry into the house, he spoke to them. His motivation was jealously and an inability to accept the relationship was over. Mr Anderson accepts all those propositions.
3. The Crown submits that the objective seriousness of the offending falls in the middle of the range for an offence of this kind. On that point, Mr Anderson disagrees.
4. There is no doubt that the offending was serious, given its objective elements. There is, so far as break and enter is concerned, a guideline judgment of the Court of Criminal Appeal: Ponfield & Ors v R [1999] NSWCCA 435; (1999) 48 NSWLR 327. That guideline has to be taken into account: s 42A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Since that decision we have moved on in terms of sentencing options and statutory maters that must be taken into account: s 21A Crimes (Sentencing Procedure) Act 1999 (NSW)
5. It is important to note that the Court in Ponfield, while it set out some general principles, did not set out a range of penalties to guide the Courts. The maximum penalty and the standard non-parole period remain, however, as important guides to the exercise of my sentencing discretion.
6. The offender was familiar with the home he entered. He was not in the premises for a long period of time. He was familiar to the children, but he had, by his actions before, during and afterwards, involved himself in a confrontation with them. What he said was designed to, and did, I am sure, intimidate the victim. Indictable offences, the subject of s 112 (2), that come before this Court generally involve far more significant crimes than those that were committed here. It was, obviously, for the reasons outlined, a serious offence, but is not one that fell in the middle of the range. In any event, a Court does not start with the standard non-parole period and make proportional deductions from it. The standard non-parole period is a guide.
7. The firearms offence involved an item that some in the community regard as a toy. I will say again; gel blasters or gel air pistols, gel air weapons are not toys: R v Crawley [2021] NSWCCA 354 at [28]. It is no excuse to say, "it is a toy" or "available online". At law there is no distinction between replica and real pistol or between weapons that have the capacity to fire a pellet or hard ammunition. Importantly here, such items can be mistaken for real pistols. That is weapons that fire a bullet, as opposed to a pellet. If mistaken for a real weapon, particularly if used to confront someone, the consequences could be dire.
8. Showing a photograph of what looks like a Glock pistol can provoke a reaction, as it was intended to do. It must have caused considerable distress to the victim.
9. The use of a carriage service to convey that message, the threat to kill and the other abusive messages involved an abuse of a service that we all require.
10. So serious were both the carriage service offence, in conjunction with the way the pistol was used in the photograph (regardless of the fact he bought it as a toy) requires the imposition of custodial sentences. So much is accepted by Mr Anderson.

Other matters

1. The Crown provided me with material from when I dealt with the offender earlier, including the breach reports, for which no action was taken
2. Additionally, there is of course, the matter of conditional liberty and there is a matter on a Form 1. In the ordinary course of events that can lead to an increase in sentence, is to recognise the need for personal deterrence and retribution for the crime to which it relates, but the Form 1 matter was so interrelated with the offences for sentence as another expression of his anger and intimidatory behaviour. To add more to his sentence would double count matters already taken into account when I considered the objective seriousness of both the Intimidation and Break and Enter offences. The Form 1 matter would not ordinarily have carried a gaol penalty in any event.
3. I have already referred to his Intensive Correction Order (ICO). Gagnuss has had the benefit of other lenient dispositions in the past. His criminal record indicates, unusually, that his offending began in middle-age not youth.
4. I have also had the benefit of a report of Ms North, a forensic psychologist, and Gagnuss' treating psychologist, Ms Maksovic, and his treating psychiatrist, Dr Burhan. There is a letter from Relationships Australia. A friend has written a reference about Mr Gagnuss' capacity as a house painter and worker. I also had the benefit of the offender giving evidence before me today.
5. His background is carefully set out in the report of Ms North. He had supportive parents, and they are here today. He reports, and it seems accepted, there was a traumatic incident when he was abused by a priest when he was ten years old, a matter he kept to himself for too long.
6. He reports consuming alcohol on the night of the incident. He accepted in his evidence that that was no excuse for his behaviour, and that is the law.
7. His alcohol use and drug use have become at times problematic in his life; again, commencing more in middle-age. The breakup of a longstanding relationship precipitated serious offences that led him to being placed on ICOs in the past. Ms North notes his history of anger, expressions of anger and an inability to completely manage those emotions. His unresolved childhood trauma caused her to consider whether he had borderline personality disorder traits or what she described as an "intermittent explosive disorder;" which is a Diagnostic Standard Manual 5 condition. She noted that he had the capacity to engage with psychiatric and psychological treatment. She recommended that he continue with that treatment and that his use of alcohol and other drugs be monitored.
8. Gagnuss' treating psychologist provided a comprehensive report about the assistance she has been giving him, and the efforts he has made to focus on managing his distress, using cognitive behavioural techniques to help Gagnuss to identify "triggers" that might precipitate offending.
9. His treating psychiatrist provided a very helpful report. It was fair and properly disclosed that it was provided on the basis that he was not independent because he had a therapeutic relationship with Mr Gagnuss that might affect his impartiality.
10. Dr Burhan was frank in his assessment and diagnosis, which he initially suspected to be intermittent explosive disorder. His report noted that that initial diagnosis was not supported and that there were other matters to be explored.
11. In his opinion, the features that were displayed, both in this offence and the earlier one, are more consistent with attention deficit disorder ("ADD"), which may have been there since childhood. He notes ADD is a neurodevelopmental disorder that can be managed by medication. He says that once a medication regime was applied, there had been a remarkable improvement in Mr Gagnuss' behaviour, in his appearance, his attitude, the way he talked, and listened. Dr Burham said his prognosis is very good if he continued that treatment and followed the recommendations of non-pharmacological interventions. This also included not engaging in any substance abuse behaviour.
12. Relationships Australia provided a detailed report indicating that the offender had shown insight into his behaviour and the impact of his behaviour on his former partners.

Submissions

1. Ms Kerr, in her submissions, noted that the Director's position was that any sentence other than full‑time custody would be a manifestly inadequate result. She said this is yet another example of a male controlling, and attempting to continue to control, someone after a relationship break‑up. An offence that involved an escalation of criminal behaviour with the consequent risk that, should it occur again, other women and the community in general would be put at risk. In her submission, the line had well and truly been crossed; Gagnuss should go to gaol and have the cell door closed behind him.
2. Mr Anderson, while accepting the general principles of law put forward by Ms Kerr, noted that the offender has kept to his strict bail, undertaken multiple interventions and consistently engaged in treatment. He now has what appears to be the correct diagnosis and the correct medication.
3. While the Sentence Assessment Report speaks of his prospects, Mr Anderson's position is that if this regime is kept up, they are good. His submission is that gaol is not the only, or the better option.
4. In his submission, any sentence would have to be moderated to take into account the subjective case and the efforts already undertaken to prevent reoffending.
5. In his submission, gaol would break what had occurred, so far as rehabilitation was concerned. He drew my attention to evidence from prisoners, particularly since the pandemic, who tell courts, as they have as early as today in another matter, that access to proper medication and appropriate treatment while in custody, while not impossible, is restricted.
6. He submits that an offender, if gaoled, should not come out worse than before they went in. The community should not be placed at more risk if they are gaoled than if they are dealt with in the community under appropriate conditions, and such an option can meet all the purposes of sentencing.

Synthesis

1. Returning briefly to a point made by Ms Kerr about domestic violence offences. In cases such as this, denunciation is required because of the offender's exercise of coercive power and control over the complainant, affected by alcohol or not.
2. What Gagnuss did during the Break and Enter offence and the use to which the pistol was put in the message sent, indicate that he somehow felt he was justified in doing what he did, and that he was a true victim. In such circumstances, victims of such violence never truly feel safe. Here, the complainant was personally targeted for her reasonable response in breaking it up, a short relationship.
3. A retributive sentence can still be imposed even where someone has underlying mental conditions, as here. That is because some people with underlying mental conditions present a danger to victims and others in the community. As such community protection requires, they be removed from the community for a period. But even if they imprison an offender, courts have to recognise that an offender's moral culpability is impacted upon by their underlying mental condition: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1.
4. A person underlying mental condition doesn't mean that what they did shouldn't be denounced, but it does mean that they are a less appropriate vehicle for application of the principle of general deterrence.
5. There was nothing in the material before me to indicate that this offender would suffer directly as a consequence of going into custody, but I'm prepared to accept his treatment regime would be significantly impeded he does; although I believe he is mature and well‑supported enough for it to be continued on his release.
6. The need to impose deterrent penalties for domestic violence offences has been repeated many times by me and other courts. Heavy sentences of imprisonment, however, create a dilemma.
7. Community protection, supported by growing community perception, demands that men who enter women's homes and behave as this offender did, be punished severely. Traditionally we do this by removing men from the community and putting them in gaol. If gaols actually worked as a deterrent to violent behaviour, we wouldn't have so many men in our gaols today. Gaols, rather than discouraging violent crime, can have a crime‑producing effect. Long sentences can break pre‑social bonds with family and friends in the community. Long sentences mean men are locked up and subject to the influence of other violent offenders. They interfere with treatment regimes. But at the same time, the Court has to recognise that if we don't punish such men, there is a perception in the community that, somehow women, that are the subject of violence, are less in need or deserving of protection and the vindication the criminal law is meant to provide.
8. The proper role of the criminal law is not limited to general deterrence and the arguments made in sentencing Courts. Courts by the sentences imposed have an obligation to vindicate the dignity of victims of violence and express the community's disapproval. They do that by fixing a custodial sentence.
9. Mr Anderson submits that I can do so, but also protect the community, by fixing a sentence that can be served by intensive correction in the community. That aim falls withing the objects of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Those objects are of general application. Section 9 notes: "(1) The objects of this Act in relation to domestic violence are - (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and (b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons …"
10. Another important objective is the recognition by Parliament that domestic violence, in all its forms, is unacceptable behaviour. It concludes, at s 9(3)(g): "Domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and, in certain cases, may be the subject of appropriate intervention by the court."
11. While that Act is not in play here, those important principles certainly are. If the offender is gaoled, he would have to be released into the community at some stage. If he is gaoled, he will have to recommence all his treatment programs.
12. There might be some victim vindication from a gaol sentence. I note while there is no victim impact statement, that fact does not and cannot mitigate: s 30E (5) Crimes (Sentencing Procedure) Act 1999.
13. I may be too optimistic, but the evidence before me, particularly the reports of the treating psychologist and psychiatrist and Relationship Australia indicate that a corner has been turned.
14. Some important steps have to be undertaken before a sentence of imprisonment, to be served by way of intensive correction, can be imposed.
15. I have to reach the conclusion that no other penalty other than imprisonment is appropriate. As I have indicated, so serious are these offences, that that conclusion is inevitable and accepted by the offender.
16. I have to determine the appropriate term of the sentence and only then consider whether or not to make an Intensive Correction Order ("ICO")
17. There are two State matters here for sentence. While each are serious, an aggregate sentence of less than 3 years, taking into account the plea of guilty and the matters in mitigation, is open to me and could be imposed.
18. Before that sentence can be served in the community, I have to consider the different ways the community can be protected. As Basten JA in the Court of Criminal Appeal noted in Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337; if a person is imprisoned, community safety can be protected by their removal and by a period of supervised liberty on parole, but if the Court has confidence in the existing process of rehabilitation, which is already underway, the longer term likelihood of reoffending may be diminished by not sending the person to prison.
19. In that appeal case Leeming JA at [93], noted that gaol might cause an offender to dwell on what they did and to refrain from committing crimes on release. Although sadly, given recidivism rates, this purpose has not been borne out either by research or my long experience.
20. Leeming JA also noted that dislocation from housing, employment, work and such social structures can increase the risk of reoffending. Those comments were not the subject of the High Court appeal in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3.
21. I must however start with what the High Court said about community safety. Section 66(1) Crimes (Sentencing Procedure) Act requires the Court to treat community safety as the paramount consideration. Community safety principally concerns the possible harms to the community from the offender's future risk of reoffending in a manner that may affect community safety: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [72] and [116]. That risk may be different depending on how the sentence is served. The section implicitly rejects any assumption that full‑time detention will most effectively promote community safety. It requires the Court to look forward to the future and to the possible impacts of the sentence of imprisonment: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [74]. That includes a review of the nature and content of the conditions that might be imposed: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [75]. While community safety is not the sole consideration, in deciding whether to make or refuse an ICO, it would usually have a decisive effect, unless the evidence is inconclusive.
22. Here, while richly deserved for a retributive purpose, community safety would be best met by a lengthy period of intensive correction.

Orders

1. In relation to the Commonwealth offence, you are convicted. There will be an order pursuant to s 21(b) Crimes Act 1914 (Cth). Taking into account the plea of guilty, there will be a sentence of 9 months' imprisonment. That sentence will be deferred, on you entering into a recognisance, to be of good behaviour, yourself in the sum of $400, for a period of 2 years from today's date. It is a condition of the order that you are not to travel interstate or overseas without the permission of the State Parole Authority. You will be called up for sentence should you breach that bond.
2. In relation to the Break and Enter offence, I indicate a sentence of 2 years and 3 months; non‑parole period 1 year and 2 months.
3. In relation to the firearms matter, I indicate a sentence of 1 year and 1 month; non‑parole period 6 months.
4. There will be an aggregate sentence of 2 years and 7 months imprisonment which will commence today. That sentence is subject to intensive correction in the community.
5. The Intensive Corrections Order includes the standard conditions to be of good behaviour and to obey all directions of Probation and Parole Service. You are to report to Community Corrections office within 7 days.
6. Further conditions are that; you undertake or engage with psychological and psychiatric services as directed; you engage in domestic violence interventions as directed; you accept referral to drug and alcohol services as directed; you submit to drug and alcohol testing as required; you must abstain from drugs and alcohol. If there is a problem with that, go to your parole officer, do not hide from them.
7. You must provide to Community Corrections with authorities to enable them to monitor your progress and stability, that is, with your father and treatment providers, in other words authority for them to double check on you.
8. You are to undertake 120 hours of community service work.
9. You will have to enter that order in the Court office. 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: 19 July 2023