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District Court 7 June 2007

R v Victor David GERARDA aka Vincent TARANTINO

[2007] NSWDC 148

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCE FORMS 1 PROHIBITED WEAPON PREVENT LAWFUL APPREHENSION RISK TO THE COMMUNITY

Citation: R v Victor David GERARDA aka Vincent TARANTINO [2007] NSWDC 148
Court: District Court of New South Wales
Date: 7 June 2007
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to a series of serious offences arising from two separate episodes of criminal conduct. The first arose from a dinner party dispute during which the offender punched his former partner in the face with a closed fist, causing grievous bodily harm including deep facial lacerations requiring approximately thirty stitches. He then armed himself with a large knife and later threatened police officers with it before being subdued with capsicum spray at a service station.

After being granted bail following that first episode, the offender breached bail and also breached an apprehended domestic violence order by attending his former partner's home. On arrival, he physically assaulted her. When police attended the property, the offender threatened them with a lit Molotov cocktail in the hallway and ultimately threw it at them, causing fire damage to the premises.

The sentencing proceedings addressed both indictments together, with several additional matters taken into account on Forms 1, including assaults on police, malicious damage of property, and possession of cannabis and a prohibited weapon.

  • What sentence was appropriate for each offence across the two indictments, having regard to the seriousness of the conduct, the offender's criminal history, and relevant mitigating factors including a plea of guilty and assistance to authorities?
  • Whether the sentences across the two indictments should be imposed concurrently or with partial accumulation, applying the totality principle.
  • Whether special circumstances existed to justify a longer additional term relative to the non-parole period.
  • What penalty was appropriate for breach of the apprehended domestic violence order, dealt with separately at the hearing.

Decision

The court characterised both episodes as serious. The first indictment involved a violent assault on an intimate partner, followed by threatening police with a knife and possessing a prohibited weapon. The second indictment, which arose after the offender had been granted bail, involved deliberate arson inside the former partner's home and the use of a Molotov cocktail against attending police, compounded by the breach of both bail conditions and an apprehended violence order.

Berman SC DCJ imposed concurrent sentences for the matters on the first indictment, with partial accumulation for the two counts on the second indictment. His Honour treated the use of the Molotov cocktail as a discrete act of criminality warranting separate consideration from the associated property damage. The totality principle was applied to ensure that the overall period of imprisonment was proportionate to the full range of offending.

Special circumstances were found, primarily because the offender was serving his sentence in protection. This justified a longer additional term beyond the non-parole period than would ordinarily apply. The court also took into account the offender's assistance to authorities and his guilty plea as mitigating factors.

The breach of the apprehended domestic violence order was dealt with at the conclusion of the sentence proceedings, following a formal admission by the offender in open court. A fixed term of six months was imposed for that matter.

Orders Made

  • Count 1, First Indictment (maliciously inflicting grievous bodily harm): Non-parole period of 2 years commencing 2 September 2006; balance of term of 1 year.
  • Counts 2 and 3, First Indictment (use of offensive instrument and possession of prohibited weapon): Fixed term of 2 years commencing 2 September 2006.
  • Count 1, Second Indictment (malicious damage by fire): Non-parole period of 2 years commencing 2 September 2007; balance of term of 1 year.
  • Count 2, Second Indictment (use of offensive instrument to prevent lawful apprehension): Non-parole period of 1 year commencing 2 September 2008; balance of term of 2 years.
  • Breach of apprehended domestic violence order: Fixed term of 6 months commencing 2 September 2006.
  • Effective total sentence: Non-parole period of 3 years, with an additional term of 2 years, making a total sentence of 5 years.

Key Takeaways

  • The District Court applied partial accumulation rather than full concurrency where two indictments concerned separate and distinct episodes of serious criminal conduct.
  • Where an offender commits further offences while on bail and in breach of an apprehended violence order, those circumstances are treated as aggravating the second episode of offending.
  • Special circumstances justifying a longer additional term need not relate to rehabilitation alone; the District Court accepted that serving a sentence on protection constituted a relevant special circumstance in this case.
  • A formal admission in open court to contravening an apprehended domestic violence order, made during the sentencing proceedings for associated offences, was sufficient to found a separate fixed-term penalty for that breach.
  • Assistance to authorities and a guilty plea were recognised as mitigating factors, though they did not prevent the imposition of a substantial effective sentence given the gravity and volume of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Paris [2001] NSWCCA 83