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Local Court 4 September 2014

Director of Public Prosecutions (NSW) v Vallelonga

[2014] NSWLC 13

Assault & violenceDomestic & family violence
SENTENCING DOMESTIC VIOLENCE OFFENCES GOOD PROSPECTS OF REHABILITATION GENUINE REMORSE

Citation: Director of Public Prosecutions (NSW) v Vallelonga [2014] NSWLC 13
Court: Local Court of NSW
Date: 4 September 2014
Judge: Judge Henson, Chief Magistrate

Background

The offender faced sentence on seven counts of common assault and one count of assault occasioning actual bodily harm, all committed against his then wife over an 18-month period between June 2011 and December 2012. The offences were each classified as domestic violence offences under the Crimes (Domestic and Personal Violence) Act 2007.

The assaults included incidents in which the victim was grabbed, dragged down stairs, slammed against a wall by her ponytail, and choked to the point of near-unconsciousness. Several offences occurred while the victim was heavily pregnant, and at least one took place with the couple's young child present. The offender's serious and ongoing addiction to cocaine and alcohol formed the backdrop to all offending.

The Crown brought the proceedings, with the DPP substituting a charge of assault occasioning actual bodily harm (under the Crimes Act 1900) in place of a more serious choking offence, accepting there was no proven intent to commit an indictable offence by that act.

  • Whether the offender's drug and alcohol addiction mitigated the objective seriousness of the offences
  • What weight to give to prospects of rehabilitation, genuine remorse, and the victim's supportive evidence
  • Whether custodial sentences were warranted, and if so, whether an Intensive Correction Order (ICO) was the appropriate custodial mechanism
  • How to structure aggregate sentences across multiple charges of varying seriousness arising from a course of conduct

Decision

Chief Magistrate Henson found that the offending was serious across the board, noting the sustained nature of the conduct, the vulnerability of the victim during pregnancy, and the presence of the child during some incidents. The court found that the offender's drug addiction, though it provided contextual background, did not reduce the objective seriousness of the offences. Participation in ongoing illegal drug use reflects poorly on character and is not a mitigating circumstance in the same way that, for example, a lawful but harmful dependency might be.

On rehabilitation, the court was cautious. The victim gave evidence in the offender's favour, describing a previously good nine-year relationship before drugs took hold. However, the court noted ongoing concerns about the offender's associations and his 2013 criminal conviction, which tempered optimism. The court nonetheless accepted genuine remorse and found real, if guarded, prospects of rehabilitation.

The court held that general deterrence carries particular importance in domestic violence sentencing. Custodial sentences were warranted for the most serious charges, including the assault occasioning actual bodily harm and several of the common assaults. For two less serious common assault charges, good behaviour bonds under section 9 of the Crimes (Sentencing Procedure) Act 1999 were imposed instead.

The court determined that an Intensive Correction Order served in the community was the appropriate vehicle for the custodial component, rather than full-time imprisonment. This reflected the combination of the seriousness of the offending, the need for general deterrence, and the offender's rehabilitation prospects.

Orders Made

  • Sequences 1, 3, 5, 6, 7, and 9: Convicted and sentenced to terms of imprisonment to be served by way of Intensive Correction Order, with a total combined term of 18 months commencing 4 September 2014 and expiring 3 March 2016.
  • Sequence 9 (assault occasioning actual bodily harm): 12 months imprisonment, commencing on expiry of the Sequence 1 sentence.
  • Sequences 5 and 6: 6 months each, commencing on expiry of the Sequence 1 sentence.
  • Sequence 7: 9 months, commencing on expiry of the Sequence 1 sentence, served concurrently with other sentences running from that date.
  • The ICO is subject to mandatory conditions including: good behaviour; residing at an approved address; compliance with supervisor directions; alcohol and drug testing; home visits; participation in offending behaviour programs; and 32 hours of community service work per month.
  • Sequences 4 and 8: Convicted. Released on a section 9 good behaviour bond for 3 years, subject to Community Corrections supervision for at least 18 months and random urinalysis during the supervised period.
  • Each conviction endorsed on the offender's criminal record as a domestic violence offence pursuant to section 12(2) of the Crimes (Domestic and Personal Violence) Act 2007.

Key Takeaways

  • Drug addiction that arises from participation in ongoing unlawful conduct does not mitigate the objective seriousness of associated violent offending, even where the addiction provides some contextual explanation for the behaviour.
  • General deterrence carries particular weight when sentencing for domestic violence offences, and custodial sentences remain warranted even where an offender demonstrates genuine remorse and has reasonable rehabilitation prospects.
  • An Intensive Correction Order is available as a custodial sentencing option in the Local Court where full-time imprisonment is not necessary but the offending is too serious for a non-custodial response.
  • Threats made to a victim during a course of domestic violence, such as threats concerning child custody proceedings, are relevant to the overall characterisation of the offending and its impact on the victim.
  • Where a victim gives evidence supporting the offender at sentence, the court will assess that evidence independently and may still impose significant penalties where the objective circumstances of the offending demand it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Crimes (Administration of Sentences) Regulation 2008 (NSW), cl 175

Cases:
- Hiron v R [2007] NSWCCA 336
- R v Abboud [2005] NSWCCA 251
- R v Borkowski [2009] NSWCCA 102
- R v Brown (1992) 73 CCC (3d) 242
- R v Doan (2000) 50 NSWLR 115
- R v Edigarov (2001) 125 A Crim R 551
- R v Hamid [2006] NSWCCA 302
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- R v Taylor [2000] NSWCCA 442
- R v Zamagias [2002] NSWCCA 17