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District Court 11 December 2020

R v Validakis

[2020] NSWDC 915

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME ASSAULT SENTENCE R ELEVANT FACTORS ON SENTENCE E MULTIPLE DOMESTIC VIOLENCE OFFENCES ACCUMULATION AND CONCURRENCE TOTALITY PRINCIPLE

Citation: R v Validakis [2020] NSWDC 915
Court: District Court of New South Wales
Date: 11 December 2020
Judge: Haesler SC DCJ

Background

The offender had a history of domestic violence-related offending dating back to 2014. In February 2018, Haesler SC DCJ had sentenced him to one year and three months imprisonment for a drug supply offence, suspending that sentence on conditions including good behaviour. He then entered two relationships in succession, and after each breakdown engaged in serious patterns of stalking, intimidation, and property damage directed at the respective complainants.

The offending against the first complainant culminated on 5 November 2018 when he detonated an improvised explosive device at her apartment block in North Wollongong. The device caused significant property damage and placed residents, including the first complainant, at real physical risk. He was ultimately convicted in the Local Court on 14 September 2020 of intentionally or recklessly damaging property by explosion (a domestic violence offence) and intimidating the first complainant with intent to cause physical harm.

The offending against the second complainant continued through late 2019 and into January 2020, including multiple breaches of Apprehended Domestic Violence Orders (AVOs). He was arrested on 17 January 2020 and remained in custody from that date. Before the District Court, he appealed the severity of the Local Court sentences for the first complainant's offences, and also fell for sentence in the District Court's original jurisdiction on an aggravated break, enter and commit serious indictable offence (knowing a person was present), common assault, and four AVO breach offences relating to the second complainant.

  • Whether the Local Court sentences for the explosion and intimidation offences (three years, fixed term) were manifestly excessive and warranted intervention on the severity appeal
  • How the District Court sentences should be structured and accumulated upon the Local Court sentences, applying the totality principle
  • Whether special circumstances existed justifying a parole period longer than the statutory default one-third of the total term
  • What individual and aggregate sentences were appropriate across all matters, having regard to community protection and the offender's need for supervision on release

Decision

Haesler SC DCJ accepted that, considered in isolation, the Local Court sentences for the explosion and intimidation offences might have warranted intervention to include a parole period, given the value of supervised reintegration into the community. However, because the offender would not be released at the expiry of those sentences (due to the additional sentences to be imposed), the structure of the Local Court sentences was no longer a live issue. The appeal against severity was effectively overtaken by the accumulation required for the more serious matters in the District Court's original jurisdiction.

The District Court found the explosion offence was of considerable objective seriousness. Although improvised fireworks were used, the device ignited with sufficient force to create genuine risk of injury to the first complainant and other residents of the apartment block. Both the explosion and intimidation offences were, the Court observed, of a type that would ordinarily be dealt with in the District Court rather than the Local Court, as each warranted individual penalties exceeding the Local Court's two-year jurisdictional limit.

On the sentencing of the new matters, the Court applied the totality principle to moderate what the cumulative effect of all sentences would otherwise have been. A finding of special circumstances was made, both because of the degree of accumulation required and because of the offender's identified need for an extended period of supervision and monitoring on release into the community. This justified departing from the standard ratio of non-parole to parole period. Individual sentences for the AVO breach offences and the assault were reduced by 25% to reflect the utilitarian value of early guilty pleas.

The Court structured an aggregate sentence of four years for all District Court matters, commencing 17 July 2022, with a non-parole period of two years. The overall sentence architecture, including the earlier drug matter and Local Court sentences, resulted in approximately 70% of total time to be spent in custody and 30% on parole. The Court described that proportion as an approximation rather than a strict arithmetical result.

Orders Made

  • Aggravated break, enter and commit serious indictable offence (Form 1 matters taken into account): 3 years imprisonment, non-parole period of 2 years
  • Common assault (domestic violence): 1 year 2 months imprisonment
  • First AVO contravention (s 166): 1 month imprisonment
  • Three remaining AVO contraventions (s 166): 9 months each
  • All sentences reduced by 25% for early guilty pleas; all recorded as domestic violence offences
  • Aggregate sentence: 4 years, commencing 17 July 2022
  • Non-parole period: 2 years; eligible for parole from 16 July 2024
  • Parole period: 2 years, from 17 July 2024 to 16 July 2026; special circumstances found
  • Domestic violence order: 5 years from date of sentence, in the same terms as the order made 13 December 2018 at Wollongong Local Court

Key Takeaways

  • Where an offender faces District Court sentences that must be accumulated upon sentences under appeal from the Local Court, the structure of the Local Court sentences (including whether a parole period should have been set) may cease to be a determinative issue once the totality principle is applied to the overall sentencing task.

  • The totality principle requires active moderation of the cumulative effect of multiple accumulated sentences, even where each individual sentence is justified on its own merits.

  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be founded on two distinct bases: the degree of accumulation of sentences, and the offender's identified need for an extended period of community supervision and support on release.

  • An improvised explosive device fashioned from fireworks may still constitute an offence of considerable objective seriousness where the force released creates genuine risk of physical harm to persons beyond property damage alone.

  • Sentences for multiple domestic violence offences committed across different relationships, and in breach of existing orders and a suspended sentence, call for structured accumulation that addresses both community protection and the offender's prospects for supervised reintegration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 112, 117, 195(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act 1986 (NSW), ss 166, Form 1

Cases
- Attorney General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 581
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Clinch (1994) 72 CLR 301
- R v Grube [2005] NSWCCA 140
- R v MAK; R v MSK [2006] NSWCCA 318
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14