R v Kyriakoulis

Citation: R v Kyriakoulis [2024] NSWDC 304
Court: District Court of New South Wales
Date: 5 June 2024
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to aggravated break and enter with intent to commit a serious indictable offence, namely assault, contrary to s 112(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was that he knew a person was present in the dwelling at the time. The offence was also classified as a domestic violence offence, occurring after the breakdown of his relationship with the mother of his three children.

At the time of the offending in March 2023, the offender was on parole for earlier offences involving the same complainant, subject to Apprehended Domestic Violence Orders (ADVOs), and serving a Community Correction Order. The complainant had been relocated to a safe address, which she believed the offender did not know. He had, however, gained entry by removing a screen from a bedroom window, and was discovered inside the home by one of his children before violently dragging the complainant back inside the house as she stood on the front porch.

The complainant suffered bruising, swelling, and cuts during the struggle, and ultimately escaped when her pyjama shirt tore as she pulled free. Prior to sentencing, the court had granted the offender bail to attend the Balund-a rehabilitation program run by Community Corrections. He engaged with the program but did not complete it, notifying authorities and returning to court as he had promised when bail was granted.

Legal Issues

• What was the appropriate sentence for the aggravated break and enter offence, taking into account its objective seriousness and the applicable aggravating factors?
• How should the court approach the concurrent breach of the Apprehended Domestic Violence Order without double-counting the same sentencing factors?
• What weight should be given to the offender's subjective circumstances, including his deprived childhood, drug addiction, mental health, and partial engagement with rehabilitation?
• What discount applied for the early guilty plea, and what credit was appropriate for the offender's attempted rehabilitation?

Decision

Haesler SC DCJ assessed the offence as a serious example of its type. The attack was premeditated, occurred in the home where the complainant believed she was safe, took place in the presence of the children, caused physical injury, and was committed in deliberate breach of existing court orders. The court identified the offending as an exercise of control over the complainant, further undermining her sense of safety and security. All of these factors pointed to a custodial sentence of meaningful length.

On the subjective case, the court accepted that the offender's moral culpability was reduced by significant disadvantage, including a traumatic and chaotic childhood, exposure to violence and drug use, learning difficulties, and his own drug addiction at the time of the offence. Applying the principle from Bugmy v The Queen, the court held that the damaging effects of childhood neglect do not diminish over time. The court also noted, however, that a psychosocial report disclosed distorted thinking, including victim-blaming and attempts to justify controlling behaviour, indicating the offender did not at the time understand his responsibilities as an ex-partner and father.

The court declined to penalise the offender for failing to complete the Balund-a program, and instead gave him some credit for having genuinely attempted to address his underlying issues. The offender's conduct in notifying authorities and returning to court without breaching bail or the ADVOs was treated as a positive sign for future compliance with parole conditions. The otherwise appropriate sentences were reduced by 25 per cent to reflect the utilitarian value of the early guilty plea.

The court was careful not to double-count the breach of court orders as both an aggravating factor for the principal offence and a standalone sentencing matter. The sentence for the ADVO breach was made partly concurrent with the sentence for the principal offence. The aggregate approach was adopted, with the sentence backdated to 9 April 2023 to account for time served and time spent at the rehabilitation facility in quasi-custody.

Orders Made

• ADVO breach (s 166, Criminal Procedure Act 1986 (NSW)): 9 months' imprisonment (indicated sentence)
• Aggravated break and enter (s 112, Crimes Act 1900 (NSW)): 3 years' imprisonment with a non-parole period of 2 years (indicated sentence)
• Aggregate sentence: 3 years and 4 months, with a non-parole period of 2 years
• Commencement: 9 April 2023
• Parole eligibility date: 8 April 2025 (subject to State Parole Authority determination)
• Parole period: 1 year and 4 months, commencing 9 April 2025 and expiring 8 August 2026

Key Takeaways

• The District Court confirmed that partial engagement with a court-directed rehabilitation program, where an offender does not complete it but honours procedural commitments, can still attract some sentencing benefit rather than being treated as an aggravating circumstance.

• A conviction for aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW), where the offender knew a person was present and committed the offence in breach of existing court orders in a domestic violence context, will attract a custodial sentence reflecting both the objective seriousness of the offence and the statutory maximum of 20 years and standard non-parole period of 5 years as guiding reference points, not as starting figures from which deductions are made.

• Applying Bugmy v The Queen, the court reaffirmed that the damaging effects of a deprived and violent childhood on an offender's capacity for self-regulation do not diminish with the passage of time and remain relevant to the assessment of moral culpability.

• Where multiple sentencing matters arise from the same domestic violence context (such as a principal offence and a concurrent ADVO breach), care must be taken to avoid double-counting overlapping aggravating factors, and sentences should be structured with appropriate concurrency.

• In dismissing any suggestion that the offender's stated desire to "help" the complainant mitigated the offence, the court characterised such thinking as distorted cognition consistent with controlling behaviour, and treated it as a relevant consideration in assessing prospects of rehabilitation and future risk.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter)
- Crimes (Domestic and Personal Violence) Act (NSW), s 14(1) (breach of ADVO)
- Criminal Procedure Act 1986 (NSW), s 166 (certificate of breach)

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571