Citation: R v Baradi [2017] NSWDC 175
Court: District Court of New South Wales
Date: 11 May 2017
Judge: Berman SC DCJ
Background
The offender was in an intermittent relationship with a young woman who was staying at a Manly hotel while attending a training course. On the evening of 26 July 2016, the offender telephoned her demanding to see her and, when she declined, threatened to come to the hotel and prevent her from attending her course.
Approximately half an hour after that phone call, the offender attended the hotel. After sustained knocking and yelling escalated into kicking, he broke the door lock and forced the door from its frame, entering a room occupied by the victim and two other people. He seized the victim's mobile phone, then grabbed her by the wrist and dragged her approximately 20 metres down the corridor before hotel staff intervened and he fled.
The offender was arrested the following day and remained in custody. He had an existing criminal history involving domestic violence and other violent offences, and was serving a suspended sentence at the time of these offences, including for a common assault on his 70-year-old uncle.
Legal Issues
- What sentence was appropriate for aggravated break, enter and detain for advantage (under s 112 of the Crimes Act), carrying a maximum of 20 years and a standard non-parole period of five years
- What sentence was appropriate for common assault arising from the grabbing and dragging of the victim
- How to deal with the breach of an existing suspended sentence
- Whether special circumstances existed justifying a departure from the standard non-parole period
- The weight to be given to premeditation, conditional liberty at the time of offending, remorse (or its absence), and prospects of rehabilitation
Decision
Berman SC DCJ characterised the two primary offences as clearly premeditated. The offender had approximately 30 minutes between making his threatening phone call and forcing his way into the hotel room, giving him ample opportunity to reconsider. The court found the aggravated break and enter to be slightly below the mid-range of objective seriousness, noting that the circumstance of aggravation (knowledge that people were inside) was not the least serious available under s 112. A similar assessment was made of the common assault.
The court noted that the offender was on conditional liberty at the time of offending, which was an aggravating factor, but was careful to avoid double-counting given that the breach of the suspended sentence was being dealt with separately. The offender's history of domestic violence and poor response to earlier supervision further weighed against him. His failure to take personal responsibility, including attributing his violent behaviour to being in "the wrong kind of relationships," was expressly noted as a concern.
A 25 per cent discount was applied to reflect the offender's early guilty plea. The court identified special circumstances warranting a departure from the standard non-parole period, pointing to the offender's first period of full-time custody, the risk of serving time on protection in harsher conditions, and the need for partial accumulation across multiple sentences. Both general deterrence and specific deterrence were identified as significant considerations, consistent with the treatment of domestic violence offences more broadly.
The court acknowledged reasonable prospects of rehabilitation given the offender's relative youth, his trade qualifications, his willingness to engage in anger management, and the support of his parents.
Orders Made
- Suspended sentence revoked for breach of bond (assault on uncle): eight months' imprisonment, commencing 27 July 2016, fixed term
- Common assault of the victim (Ms Poskovic): nine months' imprisonment, commencing 27 October 2016, fixed term
- Aggravated break, enter and detain for advantage: non-parole period of one and a half years, head sentence of four and a half years, commencing 27 January 2017
- Eligible for release to parole on 26 July 2018
Key Takeaways
- The District Court treated the offender's premeditation as a significant aggravating feature, noting the 30-minute gap between his threats and his forced entry gave him a clear opportunity to desist.
- A failure to take personal responsibility, including attributing violent behaviour to the nature of one's relationships rather than one's own conduct, was expressly noted as a concerning feature in the sentencing remarks.
- Where an offender is already subject to a suspended sentence at the time of new offences, that conditional liberty status is an aggravating factor, but sentencing courts must avoid double-counting when the breach is being dealt with concurrently.
- Special circumstances permitting a reduced non-parole period relative to the head sentence can be established through a combination of factors, including a first period of full-time custody, a foreseeable risk of harsher protective custody conditions, and the structural need for sentence accumulation.
- Domestic violence offences of this character engage both general and specific deterrence as primary sentencing considerations, and the court identified those two factors as the principal drivers of the sentence length imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112 (aggravated break, enter and detain for advantage: maximum 20 years' imprisonment, standard non-parole period of five years)
Cases cited: None identified in the judgment text or metadata.