Citation: Gittany v R [2019] NSWDC 800
Court: District Court of New South Wales
Date: 2 May 2019
Judge: Neilson DCJ
Background
The appellant was convicted in the Downing Centre Local Court of intentionally damaging a mural titled "Saint George," painted on the exterior wall of a private terrace house in Erskineville. The mural depicted the late musician George Michael in the style of a Christian saint, but holding items associated with drug use. The mural's owner had commissioned it and valued it at $22,000.
The appellant purchased painting supplies with cash, including black block-out paint and long-handled rollers, and attended the property on 18 November 2017 to paint over the mural. When police arrived, he ran toward the mural and threw a tin of paint at it before being arrested. He told police and bystanders he acted because the mural was sacrilegious, citing his religious convictions.
The Local Court Magistrate convicted the appellant after a defended hearing and imposed a Community Service Order (CSO) of 300 hours, together with a compensation order of $14,000 payable to the mural's owner. The appellant did not challenge the compensation order on appeal, but argued the 300-hour CSO was too onerous and sought a reduction.
Legal Issues
- Whether the 300-hour CSO imposed at first instance was excessive in all the circumstances.
- Whether the District Court should exercise its own sentencing discretion to substitute a lesser penalty.
Decision
Neilson DCJ rejected the submission that 300 hours of community service was unreasonably onerous. His Honour noted that at a rate of six to seven hours per day, the order could be completed within roughly 42 to 50 days over the course of a year. The maximum CSO available for this offence is 500 hours, and the maximum custodial penalty is two years imprisonment, making 300 hours well within the available sentencing range.
His Honour characterised the conduct as deliberate and described it as "a form of religious vigilantism." He noted that damage to a privately commissioned artwork carries greater significance than damage to commercial signage, given its personal and artistic value. The appellant was not entitled to any sentencing discount, having pleaded not guilty and been convicted.
His Honour also took into account the appellant's poor criminal record, notwithstanding his relatively young age, as well as evidence of personal rehabilitation, stable employment as a carpenter with four apprentices, and a stable personal relationship. While these matters were noted, they did not bring the sentence outside the appropriate range.
The District Court held that the Magistrate's sentence was well within range and disclosed no error warranting appellate intervention. His Honour declined to exercise his independent discretion to reduce the penalty.
Orders Made
- The appeal is dismissed.
Key Takeaways
- In dismissing the appeal, the District Court confirmed that a 300-hour CSO was well within the available range for intentional property damage where the offending was deliberate, the property was of significant value, and no sentencing discount applied.
- A subjective belief that property is religiously offensive does not constitute a mitigating circumstance where the damage was premeditated and carried out with purpose.
- The court's reasoning reinforced that damage to privately owned artwork of personal and artistic significance warrants a more serious sentencing response than damage to purely commercial property.
- Evidence of rehabilitation, stable employment, and good personal relationships may be taken into account in sentencing, but will not necessarily bring a penalty within range where the objective seriousness of the offending and the offender's criminal history weigh against leniency.
- Appellate courts in sentence appeals retain an independent discretion as to penalty, but will not intervene unless the sentence imposed below was excessive; it is not sufficient that the appellate court might have imposed a different penalty.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata. The maximum penalty for the relevant offence of intentional or reckless damage to property was noted as two years imprisonment and/or a fine of $11,000, with a maximum of 500 hours community service where a CSO is imposed.