Citation: R v Gagliardi [2021] NSWDC 822
Court: District Court of New South Wales
Date: 14 December 2021
Judge(s): P Taylor SC DCJ
Background
The offender had worked with the victim at Telstra until 2009, when an assault at work led to the offender's dismissal and the granting of an apprehended violence order (AVO). From 2010 onwards, the offender engaged in a sustained pattern of harassment and stalking, including discovering the victim's changed contact numbers and repeatedly calling her. The offender held a delusional belief that the victim was in a relationship with her brother, a belief that was entirely unfounded.
The conduct giving rise to the principal offences occurred on 18 September 2017. Armed with a small hatchet-style axe, the offender waited outside the victim's Penshurst home before dawn. When the victim reversed her car out of her driveway, the offender approached, smashed the windscreen and driver's window with the axe, pressed the axe blade against the victim's neck, and twice swung the axe at her head. The victim escaped by reversing away. The offender was arrested later that day and a new AVO was granted. Just one week later, the offender breached the new AVO by calling the victim's workplace under a false name.
The offender pleaded guilty to intentionally damaging property, use of an offensive weapon with intent to intimidate, assault occasioning actual bodily harm, stalking or intimidating with intent to cause fear of physical or mental harm, and knowingly contravening an AVO. Her fitness to plead had been in question for several years following the offences, and was only resolved by the Mental Health Review Tribunal earlier in 2021.
Legal Issues
- What was the appropriate objective seriousness of the offences, noting the absence of standard non-parole periods?
- Which factors were properly characterised as aggravating in circumstances where some features (such as violence and use of a weapon) were also elements of the charges?
- How should the offender's mental illness bear on sentencing, including its relevance to moral culpability, prospects of rehabilitation, and the utility of general deterrence?
- What discount applied for the guilty plea given that the offences predated the introduction of the current fixed discount scheme?
- What was the most appropriate sentencing disposition, balancing punishment, community protection, and the offender's rehabilitative needs?
Decision
His Honour identified the offending as serious. The second offence, using an offensive weapon to commit intimidation (with a 12-year maximum), was treated as the principal offence. The offending took place against a backdrop of years of obsessive harassment, occurred at the victim's home at a time of day when she was vulnerable, caused real physical and psychological harm, and involved a weapon specifically brought to the scene. The Court noted that while some aggravating features (such as use of a weapon and the infliction of violence) were elements of the charges and could not be double-counted, other aggravating factors properly applied: the victim was particularly vulnerable, the offending occurred in the context of domestic violence, and the offender had a directly relevant criminal history.
The offender's mental health was a central feature of the sentencing exercise. Psychiatric evidence established that she had suffered from a chronic delusional disorder, which the Court found had significantly contributed to the offending. Consistent with the principles in R v Verdins, the mental illness reduced the offender's moral culpability and diminished the weight to be given to general deterrence. At the same time, the Court accepted that the offender's condition required ongoing treatment and supervision, and that there remained some risk of reoffending absent that treatment structure.
A 20% discount on sentence was applied for the utilitarian value of the guilty plea. The parties agreed on this figure, which the Court accepted, noting that the offences predated the introduction of the current fixed discount regime under the Crimes (Sentencing Procedure) Act 1999.
Weighing all these considerations, including the offender's apparent compliance with medication and mental health treatment since her arrest, her expressions of remorse, and the need to protect the community, the Court concluded that an intensive correction order (ICO) was the appropriate disposition rather than a term of full-time custody. The ICO allowed for structured supervision alongside mandatory psychiatric treatment and medication compliance conditions, which the Court regarded as essential to managing the risk of reoffending and supporting rehabilitation.
Orders Made
- The sentence is to be served by way of an intensive correction order, commencing 14 December 2021 and concluding 13 April 2024.
- The offender must report to the Community Corrections Office at Liverpool within seven days.
- Standard ICO conditions apply: no further offences; supervision by a Community Corrections Officer.
- Additional conditions include:
- Ongoing psychiatric treatment reviews every 12 weeks with Liverpool Community Mental Health, including medication compliance monitoring.
- Monthly Abilify injections (or such other treatment as prescribed by her treating physician and psychiatrist).
- No contact with the victim by any means, directly or indirectly, except through a lawyer; and no approach within 100 metres of any place where the victim lives or works, including the address in Penshurst.
Key Takeaways
- Where aggravating features such as use of a weapon or infliction of violence are already elements of a charge, the sentencing court cannot treat those same features as additional aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, though other distinct aggravating circumstances may still apply.
- A chronic delusional disorder that materially contributes to offending can reduce moral culpability and diminish the weight given to general deterrence in sentencing, consistent with the principles established in R v Verdins and affirmed by NSW courts.
- The District Court applied a 20% plea discount for utilitarian value in circumstances where the offences predated the current fixed discount regime, reflecting the agreed position of the parties and the court's acceptance of that approach.
- An intensive correction order may be an appropriate alternative to full-time imprisonment even for serious violent offending where the offender's mental health needs, rehabilitative prospects, and community protection considerations together support a structured community-based disposition.
- Prolonged stalking and harassment forming the context and lead-up to a violent episode can be treated as a distinct related offence while also informing the objective gravity of the principal charges.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 33B, 59, 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW): ss 13, 14
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 7, 21A, 73, 73A, 75A
- Criminal Procedure Act 1986 (NSW): s 166
Cases
- R v Verdins [2007] VSCA 102
- Courtney v R (2007) 172 A Crim R 371
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Muldrock v The Queen (2011) 244 CLR 120
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Lulham (2016) 263 A Crim R 287; [2016] NSWCCA 287
- R v Engert (1995) 84 A Crim R 67
- R v Bloomfield (1998) 44 NSWLR 734
- Regina v Zhang [2004] NSWCCA 358
- R v De Simoni (1981) 147 CLR 383
- R v Overall (1993) 71 A Crim R 170
- R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
- R v Price [2016] NSWCCA 50
- JM v R [2014] NSWCCA 297
- R v Chisari [2006] NSWCCA 19
- R v Huynh [2005] NSWCCA 220
- Regina v Drew [2000] NSWCCA 384
- R v Baugh [1999] NSWCCA 131
- R v Wright (1997) 93 A Crim R 48