R v Gavranich [No 3] (Sentence) [2019] NSWDC 225

Citation: R v Gavranich [No 3] (Sentence) [2019] NSWDC 225
Court: District Court of New South Wales
Date: 18 April 2019
Judge(s): Haesler SC DCJ

Background

The offender was convicted of multiple offences arising from events on 30 December 2017, approximately six weeks after his release on parole. The offences fell into two groups. First, he pleaded guilty at an early opportunity to three firearm-related charges: threatening to use an offensive weapon, possessing a loaded firearm, and possessing a shortened firearm. These arose from a video he sent to his former partner showing him loading a shortened bolt-action rifle in a car while making threatening remarks directed at her.

Second, following a judge-alone trial before Haesler SC DCJ, the offender was convicted of an aggravated break and enter at the same woman's home. The court found he had forced entry through a window, searched the home, and engaged in conduct amounting to intimidation of the occupant, who apprehended injury as a result. He was acquitted of the more serious charge of breaking and entering armed with a dangerous weapon.

The sentencing proceedings required the court to balance significant aggravating factors, including commission of the offences while on parole and a prior criminal history, against mitigating factors including youth, immaturity, and the utilitarian benefit of the early guilty pleas.

Legal Issues

How to fix an appropriate aggregate sentence for four offences, some attracting a guilty plea discount and one proceeding to trial
What weight to give the aggravating factor of offending while on parole, and how to avoid double-counting when also fixing the commencement date of the new sentence
How to apply the sentencing purposes of denunciation, general and personal deterrence, and community protection in the context of domestic violence offending
How to account for the offender's youth and immaturity, and the risk of institutionalisation from a lengthy custodial term
Whether and how sentences should be accumulated or made concurrent, and from what commencement date

Decision

Haesler SC DCJ identified the domestic violence context as requiring significant weight to be given to denunciation and deterrence, drawing on the High Court's recognition in Killick of a societal shift in how courts respond to such offences and the importance of vindicating victims' dignity. The court also acknowledged, citing Munda v Western Australia, that harsh sentences have limited utility as deterrents to crimes of passion, but that the criminal law serves purposes beyond deterrence alone, including community protection and the expression of public disapproval.

The court observed candidly that gaols have failed as a deterrent for young men and can produce counterproductive outcomes, including the breaking of prosocial bonds and the risk of institutionalisation. Despite this, custody was unavoidable given the nature and circumstances of the offending, including the use of a firearm, the breach of parole, and the absence of any demonstrated insight by the offender into his behaviour.

For the three firearm offences, to which the offender had pleaded guilty, indicated sentences of between one year and one month and one year and six months were set, each reflecting a 25 per cent utilitarian discount. For the aggravated break and enter, tried by judge alone, an indicated sentence of five years with a non-parole period of three years was set, with no utilitarian discount available. The sentence was backdated to 31 March 2018 to account for time already in custody, with the court taking care to avoid double-counting the parole breach both as an aggravating factor and in fixing the commencement date.

The court expressed the intention to give the offender a realistic prospect of rehabilitation by structuring the aggregate sentence to allow a meaningful parole period, noting that a sentence crushing all hope of future law-abiding life risked entrenching the very attitudes that had driven the offending.

Orders Made

Aggregate sentence of five years and nine months imprisonment
Sentence to commence on 31 March 2018
Non-parole period of three years and three months, commencing 31 March 2018 and expiring 30 June 2021
Eligible for consideration for release to parole from 30 June 2021
Parole period of two years and six months from 1 July 2021
Total sentence to expire on 30 December 2023

Key Takeaways

The District Court confirmed that offending while on parole is a statutory aggravating factor, but that care must be taken to avoid double-counting that factor when it also affects the commencement date of the fresh sentence.
Denunciation carries particular weight in domestic violence sentencing because offenders frequently believe their conduct is justified, and victims may never feel fully safe even after an offender is imprisoned, as acknowledged in Dunn v R and R v Burton.
Where some offences are resolved by early guilty plea and others proceed to trial, the court must indicate separate sentences for each offence and apply the utilitarian discount only to those attracting a plea, before arriving at a single aggregate term.
A sentencing court is required to balance the competing demands of community protection and denunciation against the known limitations of custodial sentences for young offenders, including the risks of institutionalisation and the disruption of prosocial bonds.
Sufficient evidence of controlling and jealous conduct, absence of insight, and a history of reconstructing events at trial can support findings that an offender's culpability is not reduced by the dynamics of a troubled relationship, even where the victim acknowledged some role in provoking reactions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- R v Peter Gavranich [No 2] (Verdict) [2018] NSWDC 40
- The Queen v Killick [2016] HCA 48; (2016) 259 CLR 256
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- R v Burton [2008] NSWCCA 128
- Dunn v R (2004) 144 A Crim R 180