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District Court 12 August 2021

R v Bucca

[2021] NSWDC 394

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME SENTENCE WHETHER A DOMESTIC VIOLENCE OFFENCE FORM 1 MATTERS RELATING TO AVO BREACHES COMMENCEMENT DATE

Citation: R v Bucca [2021] NSWDC 394
Court: District Court of New South Wales
Date: 12 August 2021
Judge: Wilson SC DCJ

Background

The offender pleaded guilty to one charge of specially aggravated break and enter and committing a serious indictable offence, namely grievous bodily harm, contrary to s 112(3) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years' imprisonment, with a standard non-parole period of 7 years.

The offending arose from a domestic context. The offender had been in a relationship with a woman (Ms Taueli) for approximately seven years, and the two had a child together. A final Apprehended Violence Order (AVO) had been in place since September 2019, prohibiting the offender from contacting Ms Taueli or approaching her home. Despite this, the offender repeatedly attended her address unannounced and made threatening telephone calls, including a threat to the victim (a male friend of Ms Taueli's family).

In the early hours of 17 May 2020, while Ms Taueli was away and the victim was house-sitting at her property, the offender broke into the home and inflicted grievous bodily harm on the victim. Five AVO breach charges were placed on a Form 1 to be taken into account on sentence, reflecting the offender's repeated contraventions of the AVO in the lead-up to the principal offence.

  • Whether the principal offence constituted a "domestic violence offence" for the purposes of the Crimes (Domestic and Personal Violence) Act 2009 (NSW), given that the direct victim was not the person the AVO was designed to protect
  • How the Form 1 AVO breach charges should affect the penalty for the principal offence
  • What commencement date should apply to the sentence, given the offender had been in custody for periods partly referable to separate breached Intensive Corrections Orders
  • Whether the offender's cooperation with authorities warranted a sentencing discount where the same information was available from another source
  • Whether the standard non-parole period of 7 years was an appropriate benchmark for this offending

Decision

The court found that the principal offence did meet the definition of a personal violence offence under the Crimes (Domestic and Personal Violence) Act 2009 (NSW), even though the direct victim was not the person named in the AVO. The offending was committed in a domestic violence context, which remained a relevant aggravating factor.

On the Form 1 matters, the court followed the guidance of the Court of Criminal Appeal in Abbas, Bodiotis, Taleb and Amoun v Regina (2013), confirming that Form 1 offences do not attract a separate penalty but are taken into account as part of the instinctive synthesis of sentencing. They inform the need for personal deterrence and retribution in respect of the principal charge.

The court determined that the sentence should commence on 22 September 2020, not from the date of arrest. This reflected that the offender had been serving time from 21 May 2020 to 26 January 2021 in respect of earlier breached Intensive Corrections Orders, meaning only 199 days of pre-sentence custody were solely referable to the subject offending.

On cooperation with authorities, the court applied the principle from R v Ellis (1986) and subsequent authorities: a sentencing discount for assistance is not warranted where the information provided was also available from another source. The court assessed the offender's background, including matters raised under Bugmy v R [2013], and concluded this was not a case that attracted the standard non-parole period, treating it instead as a guidepost in the broader sentencing exercise.

Orders Made

  • The offender was convicted of specially aggravated break and enter and committing a serious indictable offence (sequence 6) and contravening an AVO prohibition (sequence 7)
  • An aggregate head sentence of 4 years and 6 months, commencing 22 September 2020 and expiring 21 March 2025
  • A non-parole period of 2 years and 8 months, with eligibility for parole from 21 May 2023
  • A final Apprehended Violence Order for 5 years, commencing 12 August 2021 and expiring 11 August 2026, with standard prohibitions under s 36 of the Crimes (Domestic and Personal Violence) Act 2009 (NSW) for the protection of Ms Taueli

Key Takeaways

  • A specially aggravated break and enter resulting in grievous bodily harm can constitute a domestic violence offence even where the direct physical victim is not the person named in the relevant AVO, provided the offending occurs in a domestic violence context.
  • Form 1 offences do not produce a separate penalty; following Abbas, Bodiotis, Taleb and Amoun, the sentencing court incorporates their criminality into the instinctive synthesis by giving additional weight to personal deterrence and retribution for the principal charge.
  • The standard non-parole period operates as a guidepost, not a fixed benchmark. After Muldrock v The Queen [2011] HCA 39, it applies to offences in the middle of the range of objective seriousness assessed on objective factors alone, and may be departed from when the full range of subjective circumstances warrants it.
  • Where an offender's cooperation with police adds nothing beyond information already available from another source, no sentencing discount for assistance applies, consistent with the principle in R v Ellis (1986).
  • Pre-sentence custody is not automatically counted from the date of arrest. Where an offender was simultaneously serving time for unrelated matters, only the portion of custody solely referable to the subject offending is credited.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 105(1)(b), 112(3)
- Crimes (Domestic and Personal Violence) Act 2009 (NSW) ss 4, 14(1), 36, 39
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A(2), 21A(3), 21A(5AA)

Cases
- Abbas, Bodiotis, Taleb and Amoun v Regina (2013) 231 A Crim R 413
- Bugmy v R [2013] 249 CLR 571
- Irwin v R [2021] NSWCCA 172
- Le v R [2019] NSWCCA 181
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Ellis (1986) 6 NSWLR 603
- Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
- Tepania v R [2018] NSWCCA 247