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Local Court 18 August 2010

Police V Giallourakis

[2010] NSWLC 24

Assault & violenceDomestic & family violence
DOMESTIC VIOLENCE RECKLESSLY CAUSE GBH SENTENCING PRINCIPLES NEED FOR DETERRENCE FULL TIME SENTENCE CALLED FOR

Citation: Police v Giallourakis [2010] NSWLC 24
Court: Local Court of New South Wales (Cowra)
Date: 18 August 2010
Judge(s): Magistrate Dare SC

Background

The offender, a 47-year-old man, pleaded guilty to recklessly causing grievous bodily harm to his domestic partner under s 35(2) of the Crimes Act 1900. The offence occurred in the early hours of 22 May 2010 at the complainant's home in Cowra, where the pair had been sleeping together. The offender and the complainant had been in a relationship for approximately 11 months.

The offender pushed the complainant onto the bed, sat astride her, and struck her approximately four times to the nose and ear with closed fists. Medical examination and x-rays confirmed fractures of both nasal bones, bruising around both eyes and across the nose, and blood in the ear. Before leaving the residence, the offender also threatened to kill the complainant and harm her young son.

The offence was originally charged as assault occasioning actual bodily harm, but was elevated to the current charge following further medical evidence. The matter was dealt with summarily in the Local Court, meaning the maximum custodial term available to the court was two years.

  • What is the applicable sentencing framework when a serious indictable offence is dealt with summarily in the Local Court, particularly the significance of the two-year jurisdictional cap?
  • What weight should be given to general deterrence in sentencing for domestic violence offences?
  • Whether a full-time custodial sentence was warranted, or whether a non-custodial or home detention order was appropriate.
  • What, if any, weight should be given to the hardship that a custodial sentence would cause to third parties, namely the offender's elderly mother and children?

Decision

Magistrate Dare applied the principle from R v Doan (2000) 115 NSWLR 115, which makes clear that the Local Court's two-year jurisdictional ceiling is not a substitute maximum for all offences heard summarily. Rather, the court must assess the objective seriousness of the offence and impose a proportionate sentence, ensuring only that it does not exceed the jurisdictional limit. The two-year maximum is not reserved for "worst cases" in the Local Court sense.

On the objective facts, the Magistrate found the offending to be serious. The attack involved multiple blows of considerable force to a vulnerable area of the body, delivered against a woman who was in her own home and who did not welcome the offender's advances. The domestic context was an aggravating feature. The injuries, including bilateral nasal fractures and associated bruising, reflected the force applied.

General deterrence was identified as a particularly weighty consideration. The Magistrate noted an elevated level of domestic violence across the circuit and emphasised that courts are required to respond to patterns of local offending by imposing appropriately firm sentences. The offender had no prior full-time custodial history and his solicitors raised the impact of imprisonment on his elderly mother and his children. The Magistrate acknowledged those matters as mitigating factors but found they were not sufficient to displace the need for full-time custody.

A sentence of imprisonment was imposed with a non-parole period, after which the offender was to be released to parole under supervision by the Probation and Parole Service. The court also made final orders under the associated Apprehended Domestic Violence Application.

Orders Made

  • Full-time custodial sentence imposed, with a specified non-parole period.
  • Release to parole directed at the end of the non-parole period pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999.
  • Parole conditions imposed under s 51, including supervision by the Probation and Parole Service and compliance with any recommended programme or treatment.
  • Final Apprehended Domestic Violence Orders made (terms 1, 3 and 7) for a period of 12 months from 18 August 2010.
  • The back-up charge of assault occasioning actual bodily harm was marked as withdrawn following the guilty plea to the index offence.

Key Takeaways

  • Under the principle in R v Doan, the Local Court's two-year jurisdictional maximum for indictable offences dealt with summarily does not function as a substitute sentencing cap. The court must reflect the objective seriousness of the offence without treating the jurisdictional ceiling as the threshold for "worst cases."
  • General deterrence carries particular weight in domestic violence sentencing. Where a pattern of such offending is evident in a local area, courts may respond by imposing firmer sentences, consistent with the principle affirmed in R v Corbett [2008] NSWCCA 42.
  • Hardship to third parties, including dependants and elderly relatives, is a recognised mitigating consideration in sentencing, but it does not automatically displace the need for full-time custody where the objective seriousness of the offence and deterrence require it.
  • The number of blows, the force used, the vulnerability of the victim, and the domestic context are all relevant to the objective seriousness of an offence under s 35 of the Crimes Act 1900, as confirmed in cases including R v Douglas [2007] NSWCCA 31 and McCullough v R [2009] NSWCCA 94.
  • A guilty plea and an absence of prior custodial history are relevant mitigating factors but were insufficient in this case to warrant a non-custodial disposition given the nature and circumstances of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2) (recklessly cause grievous bodily harm); s 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 50, 51
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW), s 267(2)

Key Cases
- R v Doan (2000) 115 NSWLR 115
- McCullough v R [2009] NSWCCA 94
- R v Douglas [2007] NSWCCA 31
- R v Corbett [2008] NSWCCA 42
- Roberts v R [2007] NSWCCA 112
- Haoui v R [2008] NSWCCA 209
- R v Borkowski [2009] NSWCCA 102
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Weininger v The Queen (2003) 212 CLR 629
- R v McNaughton (2006) 66 NSWLR 566
- R v Hamid (2006) 164 A Crim R 179
- Hillier v Director of Public Prosecutions [2009] NSWCCA 312