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District Court 27 October 2022

R v Porceddu

[2022] NSWDC 687

Assault & violenceDomestic & family violence
CRIME RELEVANT FACTORS ON SENTENCE ATTACK ON PARTNER WITH MEAT CLEAVER PLEA OF GUILTY BREACH OF ADVO VICTIM IMPACT

Citation: R v Porceddu [2022] NSWDC 687
Court: District Court of New South Wales
Date: 27 October 2022
Judge: Haesler SC DCJ

Background

The offender and the complainant had been in a domestic relationship for approximately three years and were living together in a van parked at a beach in northern Wollongong. In July 2021, police were called following an incident in which the complainant reported being threatened with an axe. An Apprehended Domestic Violence Order (ADVO) was placed on the offender as a result.

On 25 January 2022, the offender arrived intoxicated at a friend's home where the complainant was visiting. He had earlier been involved in a separate affray incident. The two argued, and as the complainant turned her back to him, the offender struck her on the right shoulder blade with a meat cleaver, causing a 15-centimetre laceration that penetrated through skin, subcutaneous tissue, and muscle to the bone. She required surgery the following day.

The offender was arrested the next day and entered early pleas of guilty in the Local Court to two offences: reckless grievous bodily harm under s 35(2) of the Crimes Act 1900, and contravening a prohibition in an ADVO under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

  • Where did the reckless grievous bodily harm offence fall on the spectrum of objective seriousness?
  • How should the ADVO breach be sentenced, and how should double-counting between the two offences be avoided?
  • What weight should be given to the offender's criminal history, subjective circumstances, intoxication, and prospects for rehabilitation?
  • How should the early guilty plea affect the sentence?
  • Did special circumstances exist to justify a longer-than-standard parole period?

Decision

Objective seriousness. Following the Court of Criminal Appeal's guidance in Owen v R [2022] NSWCCA 214, Haesler SC DCJ was required to express a finding about where the offending fell on the spectrum of objective seriousness. The court accepted the defence submission that the offence fell at, rather than above, the mid-range. While the use of a meat cleaver, the absence of provocation, the intoxicated state of the offender, and the strike to an unguarded victim were all seriously aggravating, the injury (though significant and requiring surgery) fell short of dismemberment or the most severe outcomes such a weapon can produce. The single blow, rather than repeated strikes, was also noted.

The ADVO breach. The court treated the breach as a serious matter warranting separate punishment, recognising that ADVO compliance must be vindicated in the interests of victims and the community. However, the judge was careful not to double-count the circumstances of the physical assault when assessing the gravity of the breach, given that the facts of the two offences substantially overlapped.

Subjective matters and victim impact. The offender's criminal record, which included prior violence and domestic violence offences, precluded leniency on that account, though the court noted significant gaps in the record suggesting a capacity to live lawfully. The court received the complainant's victim impact statement, which described persistent panic attacks, anxiety, nightmares, a visible scar, and a profound change in her sense of safety and personality. Haesler SC DCJ emphasised the court's obligation, drawing on Munda v Western Australia, to vindicate the dignity of victims of domestic violence and express community disapproval, even where general deterrence has limited utility for spontaneous emotional outbursts of this kind. The offender's early plea attracted a 25% reduction in sentence and carried additional subjective value.

Special circumstances. The judge found special circumstances existed, warranting an extended parole period beyond the statutory norm, to allow adequate supervision and support upon the offender's release into the community.

Orders Made

  • ADVO breach (s 14(1)): 4 months imprisonment, commencing 26 January 2022, expiring 25 May 2022.
  • Reckless grievous bodily harm (s 35(2)): Sentence commencing 26 March 2022 (after two months of the AVO breach sentence), with a non-parole period of 2 years and 3 months, expiring 25 June 2024.
  • A parole period of 1 year and 6 months to follow, reflecting the finding of special circumstances.
  • Total period in custody: 3 years and 11 months; minimum period of 2 years and 5 months.
  • Each sentence reduced by 25% for the utilitarian value of the early guilty plea.

Key Takeaways

  • Following Owen v R [2022] NSWCCA 214, sentencing courts in New South Wales are required to make an express finding about where an offence falls on the spectrum of objective seriousness, particularly where that assessment is central to the sentencing evaluation.
  • A single blow with a dangerous weapon, while plainly serious, may nonetheless fall at the mid-range of objective seriousness where the resulting physical injury, though significant, falls short of the most severe outcomes the offence could produce.
  • ADVO breaches must be punished separately to affirm the protective and preventive purpose of such orders, but sentencing courts must guard against double-counting facts that are shared with the principal offence.
  • Intoxication does not mitigate culpability for domestic violence offending; the District Court treated it as a factor that increased risk rather than diminished moral responsibility.
  • Under the principles affirmed in Munda v Western Australia, courts are obliged to vindicate victims of domestic violence and express community disapproval of such conduct, even where the prospects for general deterrence in spontaneous violent incidents are limited.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2) (reckless grievous bodily harm)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (contravening an ADVO)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Owen v R [2022] NSWCCA 214
- Paterson v R [2021] NSWCCA 273
- Tepania v R [2018] NSWCCA 247
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162