Solicitors:
Morrisons Law (for the offender)
Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)
File Number(s): 2017/00394008
[2]
Judgment - EX TEMPORE REVISED
At about 2.30 on Saturday 30 December 2017, Ms Dunk received a Facebook Messenger video on her telephone. The video showed a man entering a car, sitting in the driver's seat and putting a key in the ignition. The man takes a shortened bolt‑action rifle from inside his shorts. He opens the breech and with his left hand tries to place a bullet in the barrel. As he does so he says, "Do you want to fucking push me, Courtney. Right, let's go. You and your fucking smart arse dog mates fucking go. You want to fucking go, let's fucking go". While the man's face is not shown, the tattoos on his arms are clear - it was Peter Gavranich, the offender now before the Court. Gavranich sent the video intending to intimidate Ms Dunk by threatening her with the loaded shortened firearm. He accepted his guilt in relation to these matters and that acceptance came at an early opportunity.
What happened next was put in dispute. It was subject of a judge alone trial before me that commenced on 3 December 2018 at Wollongong District Court. Evidence and submissions concluded late on 5 February 2018. I reserved overnight to consider my verdict. On 6 December 2018 I found Gavranich not guilty of a charge that he broke and entered Ms Dunk's home armed with a dangerous weapon.
I did, however, convict him of an alternative count; that he broke and entered Ms Dunk's home knowing she was there and that while he was there he intimidated her: R v Peter Gavranich [No 2] (Verdict) [2018] NSWDC 40. In my judgment I said that Gavranich's behaviour towards Ms Dunk that morning was "appalling." She did not invite him in. She had locked the door against him. He, by his own admission, ran around the back because he was jealous and thought another man was in the house.
I found that she did not let him in but he forced his way into the home through a window. He searched her home. His behaviour in entering the home and holding her face and treating her and her property as he did amounted to harassment and molestation of her. That behaviour did cause her to apprehend injury. That apprehension in all the circumstances was reasonable. His behaviour in her home that morning satisfies all the tests for intimidation, which I found proved beyond reasonable doubt.
Gavranich's behaviour earlier that night was equally appalling. To use a firearm to threaten someone with whom you had been in a loving relationship showed a callous disregard for her wellbeing and whatever relationship they may have had. At trial Ms Dunk told me about the relationship; how she came to meet Gavranich, how she corresponded with him and spoke to him while he was in custody at the South Coast Corrections Centre.
On the night he was released to parole she stayed with him at his mother's house. She told me that, such was his controlling and threatening behaviour, that while she still loved him she was exhausted and unsettled by his behaviour towards her. She said he was too demanding. She conceded that as a consequence their relationship became toxic; a word also used by Gavranich and those who support him.
The relationship did not end, although she did attempt to break up by going to Queensland. She resumed contact with him and she gave an explanation for doing so during the trial. On 27 December 2017, Gavranich stayed at her home. She told me she had many conflicting feelings about him and that they moved from one extreme to the other; so much was revealed in the text messages between them during the course of the incidents.
At trial I accepted most of what Ms Dunk told me. I accept that she was involved in a relationship with a jealous and possessive man. She knew this but she did allow the relationship to continue because she still loved him. She also accepted that she knew how to get a reaction from him and that she did, at times, attempt, deliberately, to spark those reactions. She told me she did so because she wanted him to care for her and for him not be so selfish. There was nothing, however, in the evidence at trial to indicate she invited or encouraged threats of violence. In fact, all the material at trial was to the contrary. On the other hand Gavranich's sense of entitlement towards her appeared to colour everything he said at trial. He showed, and still shows, no insight into his behaviour towards her. He sought to excuse, and still seeks to excuse, inexcusable behaviour.
At trial I found that he sought to reconstruct events to meet the charges against him and appeared to be making some parts of his story up as he went along. He appeared irrational, angry and frustrated. Frankly, his behaviour that night was nasty. He was concerned only for himself.
The High Court in The Queen v Killick [2016] HCA 48; (2016) 259 CLR 256, recognised that there has been a societal shift in how we as a community respond to domestic violence; noting current sentencing practises for offences have changed. In assessing Killick's crime the Court said at [28], "… the abuse of a relationship of trust which such an offence necessarily entails... must be deterred".
The Courts have long recognised the special dynamics that flow as a consequence of domestic violence offences. The victim of a domestic violence offence feels personally targeted by the offender and the offending is usually part of a larger picture of both physical and mental violence, in which the offender exercises power and control over a victim: R v Burton [2008] NSWCCA 128.
Denunciation is required because domestic violence offences involve an exercise of coercive power and control. This is because it is far from uncommon that, contrary to fact, the offender believes that what they do is justified; even, sometimes, that they are the true victim.
Denunciation is required because, even if a person is gaoled, the parties continued estrangement still carries with it some threat; victims often never feel truly safe and can fear that they in the future may be personally targeted: Dunn v R (2004) 144 A Crim R 180.
As here, too often perpetrators believe what they do is justifiable or can somehow be excused. Courts have, and will continue to say, as best they can, that such behaviour is unacceptable and that proper recognition must be given to the real harm that such crimes cause.
There is a need for general and personal deterrence and denunciation in crimes such as this. This can create a dilemma. Community protection, supported by growing community perceptions, demand that men who assault and offend against women in their homes be punished, and punished severely. We traditionally do this by removing men from the community and placing them in gaol. We also know from study after study that, particularly for young men, as a deterrent to criminal and violent behaviour, gaols have failed and will continue to fail. Gaol breaks prosocial bonds and encourages links with other criminals.
Gaols are intrinsically violent environments. Rather than discouraging violent crime, they can have a crime producing effect. Those who have spent long periods in gaol are socialised in the custodial setting. Those who come out after long terms in gaol find it much more difficult adjusting to normal community life. This case is another example. More often than not those who come out from gaol are not well equipped to find and keep employment or adjust to normal community life.
The High Court recognised in Munda v Western Australia [2013] HCA 38; 249 CLR 600 that harsh sentences are of little utility in reducing the incidence of crimes of passion, but the Court there made these important points:
1. It would be wrong to accept that a victim of violence is somehow less in need of deserving of protection because of the nature of the relationship.
2. The proper role of the criminal law is not simply limited to the utilitarian value of deterrent sentences, and
3. The Courts have an obligation to vindicate the dignities of victims of violence, to express the community's disapproval of that offending and to afford protection, such protection as can be afforded by the State to the vulnerable.
I have to reconcile all of these matters, and the facts, as found, with a number of important criminal principles.
The offender was released to parole on 20 November 2017. He offended a little more than a month after that release. His parole was breached from 31 December 2017. That earlier sentence was a lengthy one, although a substantial period of special circumstances had been allowed by Judge Lakatos SC, whose remarks are before me. The commission of an offence on parole requires that I take into account, as an aggravating factor on sentence, the breach of a promise to be of good behaviour. The offender should serve some of his balance of parole, but where I have to both aggravate the sentence and determine the length of the period to be spent on parole before this sentence commences there is always a danger of double counting. I take that potential danger into account.
Born in 1993, Gavranich can take no comfort from his criminal record. He has been before the Children's Court for serious matters and has served control orders for breaches of probation. He has been before the Local Courts in Queensland and New South Wales from when he first became an adult. In 2014 he went to gaol. It was while in gaol that he met Ms Dunk.
He was released, I am sure, with solid hopes for his future, but he was released a young man who had not been socialised in the community. He had rarely had an opportunity to work. He had had trouble with schooling. He was not well equipped for a relationship with anyone, let alone a relationship that soon, from both parties' descriptions, became 'toxic.' His socialisation in gaol did not equip him for dealing in a loving manner with the difficulties of any relationship. Judge Lakatos SC recognised that he was having difficulty in gaol and on release he would require assistance.
The material before His Honour indicates that he took into account Gavranich's youth and immaturity and a drug abuse problem. While Gavranich appears to have dealt with the drug abuse problem while in custody, he still presents as young and immature man who has a lot of growing up to do.
There are four matters for sentence. The first three relate to the first episode and each involves the use of a firearm. While I had difficulty accepting his evidence at trial, I am prepared to accept that he only held the weapon for a short period but the way he utilised it demands retributive punishment, for the reasons I have already outlined. The video he took and sent to Ms Dunks was part and parcel of what occurred soon thereafter; the breaking, entering and the threatening. He knew that Ms Dunk was in the home. He knew that the house had been locked against him. While in the house he continued his intimidatory behaviour.
The threaten to use an offensive weapon offence carries a maximum penalty of 12 years' imprisonment: s 33B Crimes Act 1900. To possess a loaded firearm carries a maximum penalty of ten years' imprisonment: s 93G Crimes Act 1900. To possess the shortened firearm carries a maximum penalty of 14 years' imprisonment: s 62 Firearms Act 1996. Aggravated break and enter carries a maximum penalty of 20 years' imprisonment: s 112(2) Crimes Act. Parliament has said that for an offence which, taking into account only objective factors, falls in the middle of range of seriousness, should have a standard non‑parole period of five years' imprisonment.
Ms Steedman, for the Director of Public Prosecutions, submits that this matter falls within the middle of the range, taking into account only objective features. She contrasts what occurred here with a bottom of the range case - a break and enter by two people of business premises where a small amount of property is taken. She says here all of Gavranich's actions were intentional.
Mr Khan, for the offender, submits that, by comparison with other matters of aggravated break and enter and other circumstances of aggravation, as set out in s 105A Crimes Act, this matter would fall below, although not significantly below, the middle of the range.
Sentencing judges have considerable discretion. The guidance offered by maximum penalties and standard non‑parole periods must be respected. Content has to be given to the standard non‑parole period, and I will do so. I am also required, it would appear from some authorities, to indicate where in the range I notionally find this matter falls. Given the sort of matters that could fall within s 112(2), and not in any way derogating from the seriousness of the offence for sentence, I cannot accept the Crown's submission that this matter falls within the middle of the range, but I do find that it falls below, but just below, that middle.
There other reasons for departure from the standard non‑parole period; the offender's background and other subjective factors, the need to accumulate sentences effectively on the one imposed by Judge Lakatos SC. There can also be some significant variation from the standard non‑parole period to reflect a finding of special circumstances.
The commencement date of the sentence, taking into account all relevant factors, should not be on the date of arrest but it should not be long thereafter. I will commence this sentence from 31 March 2018.
There is a letter from the offender tendered to me today. In it he says he respects the decision of the Court but respectfully maintains his innocence: such is his right.
He apologises for his behaviour in sending the video recording. He speaks of matters that have affected and put pressure on him and his difficulties in adjusting to living in the community. He says, and the objective evidence seems to support, that he has been able to deal successfully with a number of issues during his previous sentence in custody. He says he regrets the impact of his offending on his family and obviously on himself. There is no insight shown here about the impact of his offences on his victim. What he says could not be regarded as remorse, but it does show that he is maturing and has some insight into his present predicament.
I have the benefit of a report from Ms Wakely, a forensic psychologist: exhibit 1. She sets out his family history and the impact upon him as a young man of the use and abuse of illicit substances. She notes that Gavranich has completed the Violent Offenders Program and that he has dealt with his drug abuse problems while in custody.
Her testing indicates that Gavranich has a profile where he tends to endorse items that present an unfavourable impression. This can suggest an exaggeration of his symptoms, but she notes that his behaviour can also reflect a cry for help or a very negative evaluation of himself and his life. She notes a number of traits consistent with antisocial features, including recklessness and impulsivity, things which have been unfortunately encouraged by his time in custody.
She says that much of his offending appears to be stupid and impulsive. She notes, and I am prepared to accept, that having been released after a lengthy period of custody, it was an overwhelming time for him. He accepts, she notes, and all the evidence before me confirms, that he was unable to cope.
There are other aspects of his history given to Ms Wakely, that indicate that he has no real insight into his role in the relationship with Ms Dunk becoming toxic or how serious his offending really was. She notes that he needs help and treatment to deal with his antisocial traits and needs help in developing pro social relationships.
She notes, as I have already indicated, a pattern of behaviour reinforced by spending long terms in gaol and how gaol can reduce a person's capacity to lead a normal life on release as gaols entrench unhealthy behavioural patterns: Gavranich's anxiety at being in gaol is understandable. He has made some progress and she suggests that with intensive support he could be able to lead a law abiding life. In that regard the support that has been offered to him by friends and family is to be commended.
There are a large number of references before me, and many family, friends and referees have come to Court to support him. The references indicate that support is still available to him, as it was when he was last released. Work is available to him. When he is next released he will be older and more mature. I trust he will be in a position to take up the help that has been offered to him; another reason for a finding of special circumstances.
This sentence will be effectively accumulated on a lengthy non‑parole period. Gavranich will get some benefit because the sentence must be made concurrent with the balance of parole. He will, at the expiry of the non‑parole period I impose, be subject to parole for another lengthy period. He should be supervised and monitored and assisted for as long as possible on parole.
There were four offences. The loaded firearm and the shortened firearm offences both relate to the same item. Those matters should be served concurrently, one with the other. The threat involved the use of that firearm. Those matters were all incorporated in the video recording that was sent to Ms Dunk and form part of one course of conduct.
There must, however, be some accumulation between the two groups of offences; those that occurred earlier in the morning when the video was prepared and sent, and what occurred later at her home. The two episodes had a cumulative effect upon their victim. They were separate and distinct in that sense, although part of a course of conduct.
I also have to be careful, as Mr Khan urged upon me, to avoid, so far as possible imposing a sentence that will crush all hope of Gavranich leading a law abiding life in the future and toward imposing a sentence that may entrench the attitudes that led to this offending.
At the same time I have considered his immaturity and his youth. I trust that with age and maturity he will, on release, be in a better position than last time. I certainly do not want him to be in a worse position as there is a danger here of institutionalisation.
I have to accept that long terms in custody have a cumulative impact on a person. The severity of the sentence is not simply a product of time but its pressure. A year in custody is bad enough, two years in custody is worse than one year. Gavranich should be given an opportunity of proving himself in the community, even though he failed his last test.
A judge's job is to synthesis these often competing purposes of sentencing. I have to consider all of the purposes of sentencing. Mitigating circumstances can only go so far.
I intend to impose an aggregate sentence. I have to indicate the sentence for each of the offences. For the first three matters the indicated sentence will reflect the early pleas of guilty and the reduction to which he is entitled of 25%. The other matter went to trial and, while he is not to be punished for going to trial, he is entitled to no utilitarian benefit.
1. So far as the threaten to use offensive weapon is concerned, I indicate a sentence of one year and six months.
2. In relation to the possess loaded firearm I indicate a sentence of one year and one month.
3. For the possess shortened firearm I indicate a sentence of one year and one month.
4. For the aggravated break and enter I indicate a sentence of five years' imprisonment. I indicate a non‑parole period of three years.
[3]
Orders
The aggregate sentence in this matter will be five years and nine months. The sentence will commence on 31 March 2018. There will be a non‑parole period of three years and three months, which will commence on 31 March 2018 and expire on 30 June 2021. He is eligible for consideration for release to parole 30 June 2021.There will be a parole period of two years and six months from 1 July 2021. The total sentence will expire on 30 December 2023.
[4]
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Decision last updated: 04 June 2019