Citation: R v Vitagliano; R v Foskolos [2020] NSWDC 305
Court: District Court of New South Wales
Date: 5 June 2020
Judge: Weber SC DCJ
Background
The two offenders were sentenced following their conviction by jury for aiding and abetting wounding with intent to cause grievous bodily harm, contrary to sections 33(1)(a) and 346 of the Crimes Act 1900 (NSW). The primary assault occurred in the early hours of 4 October 2017, when two co-offenders physically wounded the victim at Austral.
The first offender had been engaged in a prolonged and serious neighbourhood dispute with the victim's family. The victim had assaulted her son, threatened her children, vandalised her property, and made a false report to her son's school about a firearm. After these escalating incidents, she contacted the second offender in September 2017 and asked whether her "boys" could assault the victim. Their Facebook Messenger exchange showed her requesting that the victim's jaw be broken and his head stomped on, and asking for a photograph as proof.
The second offender facilitated the arrangement by connecting the first offender with the men who ultimately carried out the attack. The victim was lured from his home and ambushed. The offenders did not participate in the physical assault themselves but were convicted as accessories before the fact.
Legal Issues
- Whether the standard non-parole period of seven years applicable to the primary section 33(1)(a) offence also applied to the accessory offence under the combined operation of that section and section 346.
- What the objective seriousness of the offending was, and how it compared between the two co-offenders (parity).
- What weight to give mitigating factors including provocation, remorse, rehabilitation, and good character.
- Whether intensive correction orders were appropriate, or whether full-time imprisonment was the only sentencing option.
- Whether the conditions of imprisonment during the COVID-19 pandemic constituted a relevant hardship warranting adjustment of the sentences.
Decision
On the standard non-parole period question, the Court of Criminal Appeal had previously left unresolved whether the seven-year standard non-parole period applies to an accessory conviction, not just the primary offence. The Crown urged a conservative approach, effectively treating no standard non-parole period as applicable. Weber SC DCJ adopted that approach, as it was beneficial to both offenders.
The court assessed the offending as serious. The attack was premeditated and organised: the victim was lured, there was a "cash for services" arrangement, and the first offender requested photographic proof. The court acknowledged, however, that the first offender had endured a sustained and genuinely threatening course of conduct from the victim before arranging the assault. That history was treated as a mitigating factor going to moral culpability, though not a complete answer to the gravity of the offence.
The court found that intensive correction orders were not appropriate given the nature and seriousness of the offending. Both offenders were sentenced to full-time imprisonment. The court accepted that COVID-19 restrictions in custody, while experienced by all prisoners, bore more heavily on offenders serving shorter terms, because the restrictions constituted a greater proportion of their total incarceration. This was taken into account in arriving at the sentences.
The court applied the "instinctive synthesis" approach to sentencing, drawing together objective seriousness, aggravating and mitigating factors, and moral culpability. The two offenders received identical sentences, reflecting comparable levels of involvement and similar personal circumstances, consistent with the parity principle.
Orders Made
- First offender sentenced to 3 years imprisonment, with a non-parole period of 1 year and 6 months, commencing 8 August 2019; non-parole period expiring 7 February 2021; balance expiring 7 August 2022.
- Second offender sentenced to 3 years imprisonment, with a non-parole period of 1 year and 6 months, commencing 12 September 2019; non-parole period expiring 11 March 2021; balance expiring 11 September 2022.
Key Takeaways
- Whether the seven-year standard non-parole period for a section 33(1)(a) offence extends to an accessory conviction under the combined operation of sections 33(1)(a) and 346 of the Crimes Act 1900 remains unresolved at the Court of Criminal Appeal level. The District Court adopted a conservative approach, treating no standard non-parole period as applicable, in line with the Crown's own submission.
- A sustained course of threatening and violent conduct by the victim toward the offender and her children was treated as a mitigating factor going to moral culpability, even where that history did not diminish the objective seriousness of organising a premeditated, paid assault.
- Intensive correction orders were held to be unavailable where the nature and circumstances of the offending required a custodial response.
- Under the parity principle, co-offenders with substantially similar roles and comparable personal circumstances received identical sentences, reinforcing that sentencing consistency between co-offenders is a relevant consideration even where separate proceedings are conducted jointly.
- COVID-19 restrictions on prisoner visitation and movements were accepted as a relevant hardship in sentencing, particularly where the resulting restrictions represented a proportionally larger share of a shorter sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
Cases:
- DPP v SJK [2002] VSCA 131
- Elturk v R [2014] NSWCCA 61
- GAS v The Queen (2004) 217 CLR 198
- Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis in sentencing)
- R v KCF (2006) 167 A Crim R 475
- SAT v R [2009] NSWCCA 172 (standard non-parole period and accessory liability left unresolved)