R v Bucca

[2021] NSWDC 394

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bucca [2021] NSWDC 394

Hearing dates:

22 July 2021

Date of orders:

12 August 2021

Decision date:

12 August 2021

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence imposed. Orders at [128] – [131]

Catchwords:

CRIME – SENTENCE – Specially Aggravated break and enter committing a serious indictable offence (grievous bodily harm) – committed in a domestic violence context – Whether a Domestic Violence Offence - Form 1 matters relating to AVO breaches – Commencement Date – Whether Assistance was provided to Authorities when same information available from another source.

Legislation Cited:

Crimes Act 1900 (NSW) ss 105(1)(b); 112(3)

Crimes (Domestic and Personal Violence) Act 2009 (NSW) ss 4, 14(1), 36

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A(2), 21A(3), 21A(5AA)

Cases Cited:

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

Texts Cited:

None

Category:

Sentence

Parties:

Regina (ODPP)
Joseph Bucca (Offender)

Representation:

Counsel:
Ms E Nicholson (ODPP)
Mr W de Mars (Offender)

Solicitors:
ODPP Solicitor (ODPP)
Legal Aid Solicitor (Offender)

File Number(s):

2020/151424

Publication restriction:

None

Judgment

1. Joseph Bucca (‘the Offender’) appears for sentence, having pleaded guilty to the offence H ending 319 sequence 6, being a single charge of specially aggravated break and enter and committing a serious indictable offence, in breach of s 112(3) of the Crimes Act 1900 (NSW). The circumstances of special aggravation were that during the commission of the break and enter, the Offender inflicted grievous bodily harm upon the victim, pursuant to s 105(1)(b) of the Crimes Act. This charge carries a maximum penalty of 25 years’ imprisonment, and a standard non-parole period of 7 years’ imprisonment.

2. Attaching to this charge are 5 further charges placed on a Form 1, being charge H ending 319 sequences 1 through 5, all of which are contravene a prohibition or restriction in AVO (domestic), in breach of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2009 (NSW). These charges each carry a maximum penalty of 2 years’ imprisonment and/or a fine of $5,500.00 when prosecuted in the Local Court. They arise from an AVO taken out to protect Cleo Taueli and her children, with whom the Offender had a domestic relationship and a son.

3. The maximum penalties and the standard non-parole period are guideposts for a sentencing judge, and reflect the seriousness with which the community, through Parliament, views the offending.

4. There is also a related charge of contravening a prohibition or restriction, being H ending 319 (7), which is to be dealt with on a s 166 Certificate.

5. The charges on a Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequence. The Court does so by giving greater weight to 2 elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community’s entitlement to extract retribution for serious offences: Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 at [65].

6. In Abbas, Bodiotis, Taleb and Amoun v Regina (2013) 231 A Crim R 413, a 5-judge bench of the Court of Criminal Appeal provided further guidance as to the manner in which a sentencing court may take into account criminality of Form 1 offences to increase the penalty for the principal offence. His Honour Bathurst CJ stated that:

[t]he existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

Procedural History

7. The subject offending occurred between 7 or 8 May 2020 and 17 May 2020, with the principal charge occurring in the early hours of 17 May 2020.

8. The Offender was arrested on 21 May 2020, at which time he was refused bail. He was committed for sentence from Wyong Local Court on 20 April 2021. The Offender is entitled to a 25% discount on sentence, having pleaded guilty at an early opportunity in the Local Court.

9. Although he has been in continuous custody for 449 days, which commenced from his arrest on 21 May 2020, he was serving a period of 8 months and 6 days between 21 May 2020 and 26 January 2021, due to breaching a number of Intensive Corrections Orders imposed in the Wyong Local Court on 22 January 2020. Accordingly, the Offender has spent 199 days in custody solely referable to the subject offending.

Standard Non-Parole Period

10. As indicated, the principal charge carries a standard non-parole period of 7 years’ imprisonment. The relevance of the standard non-parole period was discussed in the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247 by Johnson J who, at [110] in his judgment, summarised the propositions that arise from the legislation in which the provisions relevant to standard non-parole periods are found in their amended form, after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.

11. The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The legislation in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the CSP Act’) specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors without bringing to account matters that are unique to the Offender or the class of Offenders. Ultimately, though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise together with the objective and subjective matters which are considered in synthesis in accordance with what McHugh J discussed in the decision in Markarian v The Queen [2005] HCA 25. For reasons which I will provide later, I do not consider this case suitable to attract the standard non-parole period.

Agreed Facts

12. I have been assisted by the parties agreeing upon facts relevant to the offending.

13. The victims are Dylan Gibson (hereafter referred to as ‘the Victim’) and Cleo Taueli (‘Ms Taueli’).

14. The Offender and Ms Taueli were previously in a domestic relationship for about 7 years. They have a 5 year old son as a result of their relationship and Ms Taueli has a second child from a previous relationship. Ms Taueli and her children reside at Delia Avenue, Budgewoi.

15. The relationship between the Offender and Ms Taueli ended in about September 2019.

16. On 5 September 2019, a final AVO for the protection of Ms Taueli and her children was made against the Offender. The AVO has the mandatory conditions. The AVO prohibits the Offender from contacting Ms Taueli and from going within 100 metres of any place Ms Taueli lives or works.

17. Since September 2019, the Offender continued to text Ms Taueli to enquire about their son. Ms Taueli provided updates in response. The Offender attended Ms Taueli’s residence unannounced on about 10 occasions, since the AVO was made.

18. In 2018, Ms Taueli was introduced to the Victim, who was a friend of her brother. The Victim added Ms Taueli on Facebook and they developed a friendship.

19. In about August 2019, the Offender asked Ms Taueli about the relationship she had with the Victim. Ms Taueli informed the Offender the Victim was a friend.

20. On an occasion in about August 2019, the Victim visited Ms Taueli at her house. The Offender attended unannounced and met the Victim. The Offender was friendly with the Victim and was critical of Ms Taueli in front of the Victim. The Victim left the address and Ms Taueli told the Offender to leave.

21. In early May 2020, the Offender telephoned the Victim. The Offender was angry and raised his voice. He told the victim “I’m only going to tell you this once. Stay away from Cleo. I’m going to fucking find you”. The Victim hung up and the Offender rang back. They then spoke for about an hour. The Offender told the Victim about his past relationship with Ms Taueli, including how he previously felt when Ms Taueli left him for another man and how he wanted to ‘smash the guy’s head in’. After the call, the Victim told Ms Taueli he did not want to cause her trouble.

22. Otherwise, the Offender had always been friendly towards the Victim and had made an effort to be nice towards him.

23. On about 7 or 8 May 2020, Ms Taueli was out the front of her property after walking the dog with her 2 children and the Victim. The Offender arrived in his vehicle and attempted to speak to Ms Taueli. The Offender then left. That act constituted sequence 1.

24. The following day the Offender arrived at Ms Taueli’s residence and asked Ms Taueli if he could come in for a shower. Ms Taueli told the Offender to leave and he did. That act constituted sequence 2.

25. The following facts relate to sequence 3. Between 4:17pm and 7:53pm on 12 May 2020, Ms Taueli received 24 phone calls from the Offender. None of these calls were answered.

26. On the same day the Victim and Ms Taueli went to dinner. When they returned to Ms Taueli’s address, the Offender arrived and parked his vehicle on the front lawn. The Offender spoke with Ms Taueli and the Victim for a short time. The Victim left and the Offender stayed for some period.
    Ms Taueli made plans to take her children to visit her friend in Jervis Bay for a weekend. Her plan was to depart on Thursday 14 May 2020 and return on Sunday 17 May 2020. She arranged for the Victim to look after her property and her dog named “Bulla” whilst she was away. The Victim advised her that he would come and go from the property and might stay there occasionally.

27. In the week leading up to 14 May 2020, Ms Taueli spoke with the Offender. The Offender asked Ms Taueli what plans she had coming up. Ms Taueli told the Offender that she was going to see her friend with the children. The Offender told Ms Taueli to have a nice time.

28. About a day or 2 later, Ms Taueli and the Offender spoke once again. The Offender asked who would be taking care of the dog. Ms Taueli told the Offender that the Victim was taking care of the dog and the house while she was away.

29. I pause to observe that on the Agreed Facts it cannot be said that either Ms Taueli and, more relevantly, the Offender were aware that the Victim would be at the house the night of the offending.

30. On Thursday 14 May 2020, Ms Taueli went away with her children. The Victim stayed overnight at her property on 14 and 15 May 2020.

31. The following facts relate to sequence 4. At 5:42am on Saturday 16 May 2020, the Offender sent an SMS message to Ms Taueli stating “Regardless, is bulla sorted”. Ms Taueli replied that the dog was fine. At about 8:02am the Offender replied “With ur caretaker” and “Lol”. Ms Taueli replied “Just dnt msg ok”.

32. From 5:47pm, the Offender and Ms Taueli continued the text message conversation as follows:

T: I just singed my eyelashes getting the pizza oven started
T: (Image of Ms Taueli and child)

T: Also…
O: Wtf
O: Hahaha
O: Hahahah

T: How weird is it
O: I had to really look at that
O: I was like whaat who is that
O: I was like has luca had kids
O: To his aunty?
T: My face on Lucas body
T: (3x Laughing emojis)
T: Looks like gay phillipino or a lesbian
T: Hahahaha

33. From 7:18pm to about 10:54 pm, the Offender and Ms Taueli engaged in the following text message conversation:

T: Wats happening

O: Having a feed at my mates house, his brewed up a big meat stew potatoes baked bread little salami jayz the whole lot. Fkn beautiful

T: Fair enough

O: R u awake
T: Ye
T: Wats happening
T: Hello?

34. The following facts relate to sequence 5. Between 2:36am and 3:27am the Offender made 5 calls to Ms Taueli, which went unanswered.

35. At about 3:00am on Sunday 17 May 2020 the Victim came back to Ms Taueli’s house, having been at a party.

36. The following facts relate to sequences 6 and 7, being the principal offence for sentence and the related offence. Between 3:00am and 4:40am the Offender attended Ms Taueli’s address. The Offender was intoxicated. He had consumed about 20 beers. The Offender ripped a fly screen on a side window and entered the house. The Offender went to Ms Taueli’s bedroom and observed the Victim sleeping in his underwear.

37. The Offender began assaulting the Victim, with punches to the head, whilst he was asleep. The Offender grabbed the Victim and dragged him through the house, into the living room, then the kitchen, and out to the backyard. The Offender continued punching the Victim to the head, a number of times, while in the backyard.

38. The Offender said “Stay out of my family. This is my family. I can’t be here, yet you’re here always”. The Offender attempted to clean blood from the back door of the property before leaving.

39. At about 4:40am the Victim was discovered in the street by residents. He was wearing a t-shirt, underpants and socks and had serious facial injuries. A passer-by drove the Victim to Wyong Hospital.

40. About 1:30pm on Sunday 17 May 2020, Ms Taueli returned to her residence and discovered bloodstains in the kitchen, lounge room, hallway and on the bed sheets in her bedroom. Ms Taueli alerted Police who attended and conducted a crime scene examination.

41. Forensic analysis identified the Offender’s fingerprint located at the side window of the house.

42. Later on Sunday 17 May 2020, the Offender telephoned Ms Taueli and made the following admissions:

I was at a party drinking. I got heaps drunk. I was doing shots. I was going to stay in my car on the property. It was cold, and I didn’t want to stay there. I was so pissed, it was like I was unconscious. I just thought about going to sleep in your garage with Bulla. I went to Lucca’s bedroom window, I ripped the screen on the window, and went into Lucca’s bedroom. I went into the front bedroom. I saw Dylan laying there. I should have just left then. I was just so pissed. I just smashed him in his sleep. I dragged him. I smashed him in his sleep. I just smashed him. I dragged him into the living room. I took him out the back and …. the shit out of him. I told Dylan to get his shit and leave. I left him out the back.

43. On 18 May 2020 at 5:27pm, the Offender telephoned Ms Taueli, but she missed the call. At 5:32pm Ms Taueli telephoned the Offender and they had the following conversation:

T: What are you doing? Have you handed yourself in yet?
O: I’m still just in shock.

T: Hurry up. Go and hand yourself in.
O: I will. I’m going to, I just need to organise my stuff.
T: Well, what are you doing? You don’t have that much stuff to organise. What about your parents? Have you spoken to your family?
O: I’m sorry I’ve done this. I’m sorry to Dylan. I’m going to jail again.

T: You’re not growing as a person.

44. On 21 May 2020, the Offender attended Wyong Police Station and was placed under arrest. He participated in an electronically recorded interview in which he made the following admissions:

1. the Offender had been drinking, and had probably consumed 20 beers since 6pm (A8);

2. the Offender knew Ms Taueli was not there and the Victim had been asked to come and stay or feed the dog (A58);

3. the Offender ripped the flyscreen from the window and climbed through (A68);

4. the Offender walked into the bedroom with the torch on his phone and the Victim was asleep in the bed in his underwear (A70);

5. the Offender stopped and looked at the Victim (A72);

6. the Offender called out the Victim’s name a few times (A124);

7. the Offender punched the Victim twice and then grabbed him (A124);

8. the Offender dragged the Victim out to the backyard and punched the Victim 3 or 4 more times (A124);

9. the Victim was conscious and the Offender was speaking to him saying “stay out of my family. This is my family. I can’t be here, yet you’re always here always” (A124);

10. the Offender knew he had done enough damage to the Victim and could see that he had really hurt him (A125-126);

11. the Offender saw blood at the back door and got a cloth and wiped it (A140);

12. the Victim was walking when he left him (A74);

13. the Offender was resentful because he had been stopped from seeing his family (A160);

14. the Offender rang the Victim 2 or 3 weeks prior and gave the message “Get out of my family. It’s mine”. After this he rang the Victim again and had a good chat to him, wanting to communicate as a gentleman (A166, 168, 172);

15. the Offender was affected by the Victim having such a good relationship with Ms Taueli and their son and dog. The Offender had been working and saw the Victim walking the dog and pushing his son on the bike (A177); and

16. the Offender admitted to entering the property and assaulting the Victim.

45. The Victim remembers having his eyes closed, not knowing where he was and the voice of the Offender saying “tonight’s the night you die, fucker”.

46. The Victim was transferred from Wyong Hospital to Gosford Hospital. The Victim was discharged from Gosford Hospital on 19 May 2020, with an urgent Ophthalmologist review to be undertaken once his facial swelling had subsided. The Victim was found to have suffered the following injuries:

1. severe facial swelling;

2. bilateral frontal scalp haematoma;

3. right floor of orbit blowout fracture, anterior wall or right maxillary antrum fracture (fractured eye socket);

4. bilateral angle of mandibles minimally displaced comminuted fractures, with the fracture lines involving the mandibular canals and extending to the roots of bilateral mandibular wisdom teeth (broken jaw in two places);

5. right retrobulbar mild fat stranding, suspicious for retrobulbar haematoma;

6. right intraconal and extraconal intraorbital emphysema; and

7. right periorbital pre-septal and post-septal soft tissue hematoma and emphysema, extending inferiorly to overlie the right cheek and mandible, with soft tissue haematoma and emphysema within the right submandibular and masseteric spaces.

47. On 21 May 2020, the Victim underwent surgery for open reduction and internal fixation of his bilateral mandible fractures at Westmead Hospital. The surgery involved the insertion of 2 plates and 8 screws to fixate the fracture segments in the jaw. On 23 May 2020, the Victim was discharged from Westmead Hospital.

48. The Victim presented for further review at Westmead Hospital on 26 and 29 May 2020. The victim’s prognosis was that the plates and screws should have been able to be removed from his jaw in about November 2020, but that did not occur. In the Victim Impact Statement the Victim said that he is still waiting to hear back about the surgery.

49. Those are the Agreed Facts.

Subjective Case

Crown Material

Victim Impact Statement

50. A Victim Impact Statement authored by Dylan Gibson was tendered by the Crown and marked Exhibit B in the sentence hearing.

51. The Victim commenced by stating that he hesitated in providing the statement, as it forced him to relive the trauma suffered at the hands of the Offender.

52. The Victim outlined the extent of the physical injuries suffered during the assault, as well as the emotional and psychological toll that they have taken upon him. In particular, he stated that he has “struggled to get back to [his] normal self”, and basic things such as going out in public have caused him significant difficulties. Although he stated that some of these symptoms have improved as a result of counselling and psychologist appointments, he remains hyper-vigilant and still experiences significant discomfort in otherwise benign social settings.

50. Mr Gibson also outlined the impact that the injuries from the assault caused his professional career, impacting his ability to work for 6 months, as well as ending his ability to play Rugby League.

51. I have had regard to the Victim Impact Statement in full, and to the obvious physical and psychological injuries suffered by the Victim at the hands of this Offender. I also note the financial cost to the Victim.

52. Although, plainly, the effect on the Victim is substantial, I decline to find it as an aggravating factor under s 21A(2)(g), as the circumstance of special aggravation is grievous bodily harm and, therefore, substantial harm is implicit in offences of this type.

Offender’s Subjective Case

56. The Offender’s bundle was marked Exhibit 1 in the sentence hearing and comprised the documents outlined below.

Letter from the Offender

57. A letter from the Offender dated 9 July 2021 provided some insight into the Offender’s childhood and life prior to the offending including events such as the separation of his parents, his time in the military, his financial troubles with a failed investment in a logistics company, and his coping mechanisms, including alcohol abuse, which placed significant strain on his relationship with Ms Taueli and on his mental health generally.

58. In respect of the subject offending, the Offender stated that he “immediately” felt “remorseful and guilty”, and acknowledged his “sole responsibility to come forward”. That is apparent from the Agreed Facts. He made full admissions to Ms Taueli on the Sunday and expressed his remorse the next day before going to the police station a few days later.

59. The Offender referred to his time in custody as “humbling and eye-opening”, as well as “challenging” and “a daily struggle”, and stated that it has motivated him to take steps to never return to prison, including through participation in multiple courses and programmes, as well as accessing a psychologist where possible. This assertion is supported by a number of certificates of completion, which also form a part of Exhibit 1.

Affidavit from the Offender

60. An affidavit from the Offender dated 21 July 2021 was also tendered.

61. He provided further insight into his views of the offending, including his expression of remorse and his wish that he could “take it back if he could”.

62. Curiously, the Offender described his mother as a “good but very hard woman”, who “never showed [him] much affection and often left [him] home alone”, and that he saw his stepfather “hit [his] mother on several occasions”. His stepfather also hit the Offender. The Offender stated that he lived with his paternal father for a year at age 10, but left after a year as he was “at times not properly cared for or supervised at home”.

63. This would appear at odds with the Offender’s remarks that he was “raised by two loving parents” in his earlier letter, and such inconsistencies complicate any potential finding that the Offender suffered from childhood deprivation to any extent that may impact upon this sentence.

Character References

64. I have had regard to the numerous character references provided in support of the Offender, which identify his positive personality traits and jointly observe this offending as seemingly out of character.

Submissions

Crown Written Submissions

65. The Crown’s written submissions were marked MFI 1.

66. The Crown commenced by submitting that, given the offending involved the commission of domestic violence offences, denunciation, community protection and specific and general deterrence should be given special weight in the sentencing exercise. There was a dispute between the parties as to whether it was a domestic violence offence, which I consider below.

67. In respect of objective seriousness, it was submitted that the offending was elevated, as the offence of recklessly inflicting grievous bodily harm is “at the higher end of the scale of seriousness when considering the maximum penalties provided for serious indictable offences”. It was further submitted that the substantial degree of unprovoked violence with “a significant degree of persistence and ferocity”, which resulted in multiple facial fractures and reconstructive surgery, might further elevate the objective seriousness of this offending.

68. Whilst the Crown submission would be apposite in an offence of break and enter and commit serious indictable offence simpliciter, which carries a maximum penalty of 14 years’ imprisonment, the offence charged was under s 112(3), which in this matter requires the infliction of grievous bodily harm and attracts a maximum sentence of 25 years.

69. Regarding the relationship between the Offender and Victim, it was contended for by the Crown that as the offence was one of domestic violence, “the authorities are clear that it is a matter which increases the objective seriousness”.

70. Overall, the submission from the Crown was that these factors would lead to a finding that the offending fell above the mid-range.

71. In terms of s 21A factors, the Crown submitted that the following aggravating features applied:

1. the offending happened in the home of the victim or any other person (s 21A(2)(eb)). In this respect, it was submitted that it was not necessary that the home be the only place of residence of the Victim, or even the primary place of residence, but is a question of “whether the offending involves a violation of the victim’s reasonable expectation of safety and security in the premises in question”;

2. record of previous convictions (s 21A(2)(d)). The Crown submitted, and I accept, that the Offender has a record for serious personal violence offences, including assault occasioning actual bodily harm, choking and contravening ADVO’s. I intend to find this as an aggravating factor;

3. the Offender was on conditional liberty at the time of offending (s 21A(2)(j)). As the Offender was subject to 4 Intensive Corrections Orders for previous offending upon Ms Taueli, I intend to find this as an aggravating factor, and accept the Crown’s submission that “it has been held to be a most significant breach of conditional liberty to commit offences of domestic violence in breach of an ADVO”. Offending of this nature cannot and will not be tolerated in the community; and

4. multiple victims impacted (s 21A(2)(m)). The Crown submitted that both the primary victim, Mr Gibson, and Ms Taueli were jointly affected by the offending, given that it was Ms Taueli’s home in which Mr Gibson was assaulted, thereby violating her safety and security “irrespective of the fact she was absent”. Given that the impact on Ms Taueli was minimal, I decline to find this as an aggravating factor.

72. In respect of mitigating factors, the Crown conceded that the Offender’s guilty plea may be considered (s 21A(3)(k)). I make this finding, and will afford the Offender the appropriate discount of 25%.

73. It was further submitted that the Offender’s prospects of rehabilitation should be considered “somewhat guarded, or neutral” for reasons including slowness in engaging with counselling or programs regarding domestic violence, and the fact that the subject offending was committed while on conditional liberty for domestic violence offences. For both of the reasons submitted, I accept this submission, though I do acknowledge that the Offender has commenced taking steps towards rehabilitating himself.

74. In respect of the Form 1 offences, the Crown submitted that they are separate and distinct offences which are not “part and parcel” of the principal offence. For this reason, it was submitted that this should be reflected through an appropriate increase in the penalty imposed for the principal offence. I accept that submission, particularly as the victim of the offending was not the same victim of the principal matter for sentence, and also given the Offender’s history of failing to comply with conditions of Apprehended Domestic Violence Orders.

75. In relation to the commencement date, the Crown submitted that the Court has the discretion to determine the commencement date of the sentence, given that not all of the pre-sentence custody is solely referable to the subject offending, though it was the reason for the revocation of the previous Intensive Corrections Orders. In this respect, the Crown submitted that in selecting a commencement date, the Court “must be cautious not to double count the breach of conditional liberty … by making a sentence entirely cumulative on breach of conditional liberty that has resulted in revocation and a period of custody where that breach is also relied upon as an aggravating factor”. I have borne that in mind, and intend to backdate the commencement to allow partial concurrency between this sentence and the time served following the revocation of the Intensive Corrections Orders.

76. Finally, the Crown submitted that a finding of special circumstances may be open to the Court based on the Offender’s need for rehabilitation and it being his first time in custody. I also intend to make this finding.

Offender’s Written Submissions

77. Marked MFI 2, the Offender’s primary written submissions sought to rebut a number of submissions made by the Crown.

78. In respect of objective seriousness, counsel for the Offender pointed to the fact that the relevant serious indictable offence which constituted the breach of s 112(3), and that the specially aggravating circumstances relied upon are all inherent in the same act, in submitting that this particular offence could be found to fall “at the lower end of the scale, well below the mid-range” of objective seriousness. That is, that the indictable offence in s 112(1)(a) of inflicting grievous bodily harm is the same act qualifying the offence of circumstances of special aggravation. It was submitted that while the prosecution may rely upon the same act to prove both the commission of a serious indictable offence and relevant circumstances of special aggravation, caution must be given to not to double count the circumstance, which was the infliction of grievous bodily harm in this instance.

79. In addition, counsel submitted that the Court should recognise that as the s 105A ‘aggravating circumstance’:

is entirely subsumed within the ‘special aggravating circumstances’, it is important not to double count by additionally ascribing weight to the aggravating circumstance, distinct from the special aggravating circumstance.

80. In this regard, counsel further submitted that given the necessary overlap between the s 105A ‘circumstances of aggravation’ and ‘circumstances of special aggravation’, the lack of “distinct aggravating circumstances marks this matter as having a lower level of objective seriousness, as an example of a s 112(3) offence”. This was discussed in oral addresses with counsel.

81. Counsel for the Offender sought to further bolster this submission by characterising the nature of the grievous bodily harm inflicted upon the victim, while “not seeking to diminish its seriousness or its undoubted impact upon the victim”, as falling at the lower end of the scale for an offence of that serious type.

82. In respect of the domestic violence context, counsel for the Offender submitted that while it may be open to the Court to consider this offence through such a lens, it should be differentiated from authorities relied upon by the Crown, insofar as this offending was not perpetrated by a male upon a female with whom they maintained a relationship. Again, this was the subject of addresses, referred to below. Counsel did not accept that any greater weight should be given to principles of general and specific deterrence, denunciation or the need for community protection, even if viewed in a domestic violence context.

83. Further submissions were made by counsel as to the lack of planning and the absence of a weapon, both of which I accept.

84. Turning to aggravating factors, counsel for the Offender submitted, among other points, that if the Court chose to accept ‘in the home of victim or any other person’ as an aggravating factor then, as a matter of practicality, almost all instances of offending under s 112(3) would attract the same consideration, thereby diminishing its significance as an aggravating factor under s21A. Although the submission was not expressed in these terms, it may also be said that to find this aggravating factor may risk double counting, as the offence is breaking into ‘any home’. I decline to find ‘in the home’ as an aggravating factor.

85. In relation to the aggravating factor ‘multiple victims impacted’, counsel for the Offender submitted that by finding the Offender’s ex-partner, Ms Taueli, as one of ‘multiple victims’, the Court might risk double-counting, as the Offender’s entry into her house is also the subject of a count of contravene AVO. I accept this submission, and for this reason, and the one referred to above, I do not find the principal offence as involving multiple victims per s 21A(2)(m).

86. I have had regard to counsel for the Offender’s written submissions as to mitigating factors, however, I only intend to find that the Offender’s guilty plea and demonstration of remorse apply in the circumstances.

87. Counsel for the Offender made reference to the Offender’s upbringing in submitting that the Court might find that he suffered childhood disadvantage of the type contemplated in Bugmy v R [2013] 249 CLR 571. In making this submission, the Court was referred to the Offender’s affidavit, which formed part of Exhibit 1, as well as factors including his parents’ early separation, witnessing domestic violence and general familial instability. Noting the inconsistencies between the letter and affidavit provided by the Offender, as well as the general nature of the suggested childhood disadvantage, I do not accept that this Offender’s upbringing rises to the Bugmy threshold.

88. In respect of assistance to authorities, counsel pointed to “early and fulsome admissions” made by the Offender to police in submitting that the prosecution was assisted to the extent that a discount pursuant to s 23 of the CSP Act and in accordance with the decision in R v Ellis (1986) 6 NSWLR 603. Again, for reasons which I will explain, I reject this submission.

89. Counsel for the Offender submitted that the Offender’s prospects of rehabilitation should be assessed as “good”, given his assertions of wanting to address his relationship and domestic violence issues, as well as having the “training and skills” to be productively employed once out of custody. Given this Offender’s previous record of like offending, I am only able to assess his prospects of rehabilitation as guarded. It follows that the assessment of the risk of re-offending is also guarded.

90. Turning to commencement date, counsel for the Offender made a similar submission to the Crown as to avoiding double-counting time spent in custody, and also submitted that it was open to the Court to backdate any sentence to commence on the date the Offender first entered into custody. I intend to commence this sentence at a date between the Offender first entering custody and the commencement of time spent solely in respect of this offending.

Offender Further Written Submissions

91. Counsel for the Offender also provided further written submissions. Marked MFI’s 3 and 4 respectively, these submissions referenced the relevant principles to be taken into account when assessing victim impact statements, and also the use that may be made of JIRS statistics, which were attached to MFI 4. I have taken these submissions into account in formulating an appropriate sentence.

Oral Submissions

92. Both parties presented oral submissions to supplement their written submissions during the course of the sentence hearing. Among other matters, to which I have also given consideration, the following key issues attracted the greatest consideration.

Objective Seriousness

93. In respect of objective seriousness, the Crown conceded that the degree of trauma, psychological and physical injury inflicted on the victim, while serious, is “inherently part of a grievous bodily harm offence, and a s 112(3) offence”. It would not, therefore, qualify as an aggravating factor pursuant to s 21A(2). I accept this submission.

94. The Crown did, however, maintain that the degree of physical, mental and also financial harm suffered by the victim might be taken into account in assessing the objective seriousness generally, rather than as an aggravating factor. Still, this was framed in the context that the harm caused was “at the upper end of perhaps what some victims might suffer”, however it is “not above and beyond something outside of the ordinary spectrum of the offence”. I will have regard to the nature and extent of harm when determining objective seriousness.

95. More generally, the Crown referenced the circumstances of aggravation and of special aggravation in seeking to clarify their written submission that where the offending was referenced as being at the “higher end of the scale”, it was not intended to mean the most serious offence, but rather that “it falls higher than many”. I cannot accept this submission as I can contemplate more serious examples of special aggravation, particularly where the Offender is armed with a dangerous weapon.

96. Counsel for the Offender maintained the submission that considering that the relevant s 105A aggravating factors and special aggravating factors were “entirely bound … in one overall act which constitutes the strictly indictable offence”, in the context of “the wide range of matters” that fall under this offence provision, this particular example is “significantly unusual”. While accepting that any matter charged under the special aggravation circumstances is inherently serious, the fact that a number of aggravating circumstances potentially involved “largely mirror one another” and are incorporated within the specially aggravating circumstances, a lower degree of objective seriousness is made out.

97. In respect of counsel’s submission that the offending was “well below the mid-range”, this was clarified that the descriptor of “well below” applied “if one is looking upon the mid-range as a narrow spectrum”, however if the mid-range was considered in broader terms, then than “the more general description of below (the mid-range) would be appropriate”.

Remorse

98. The Crown added to its written submissions in respect of the Offender’s remorse by noting that, while there are “some expressions of remorse”, this should be “weighed against the fact that … he appears to shorten the time … delayed before handing himself in”, as well as offering engaging in victim-blaming and offering an insufficient explanation for his earlier history of violence. It was submitted that these issues might cause concern as to the degree of insight and responsibility demonstrated by the Offender.

99. Counsel for the Offender maintained that the Offender had demonstrated remorse to the requisite degree.

100. I do not consider that the matters raised by the Crown disentitle the Offender to a favourable finding of remorse, which is otherwise made out on the evidence.

Domestic Violence

101. The Crown sought to clarify and maintain its submission that, although she was not present at the time of the assault, Ms Taueli remained a victim of the offending. This was put on the basis that the offences occurred in her house, a place which the Offender was prohibited from visiting, and to which “she returned home to find it broken into with blood everywhere”. It was conceded that Ms Taueli was not a victim of the violence but, in circumstances where there is a history of domestic violence and an intrusion into her home, she remained a victim of that criminal offending.

102. Counsel for the Offender again drew attention to the circumstances in which the offence of violence was committed, that being upon the victim and not on Ms Taueli. However, following further discussions by the Crown and reference to the relevant definitions under the Crimes (Domestic and Personal Violence) Act, it was acknowledged that the offending may be considered a personal violence offence for the purposes of the Act.

101. I find that that pursuant to section 4(b1) of the Crimes (Domestic and Personal Violence) Act, that the offence was a personal violence offence, as it is an offence under s 112(3) of the Crimes Act, wherein the serious indictable offence was inflict grievous bodily harm (s 35 Crimes Act), referred to in s 4(a) of the Crimes (Domestic and Personal Violence) Act.

102. In considering the practical effects of such a finding, counsel for the Offender conceded that this would result in the imposition of a Final Apprehended Violence Order. The Crown reiterated their written submission that such a finding would increase the objective seriousness by requiring greater consideration of general and, in this case, specific deterrence. I accept the Crown’s submission in this respect.

103. The Crown submitted that the s 112(3) offence ought to be recorded as a domestic violence offence by reason of s 12 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Those words are defined in s 11. Whilst I do find that the offence was a personal violence offence, I decline to record it as a domestic violence offence in circumstances where the victim was not a person with whom the Offender had a domestic relationship. The fact that Ms Taueli was also impacted, albeit minimally, by the offending does not warrant the finding for which the Crown contends.

Childhood Deprivation Considerations

106. The Crown sought to address the Offender’s written submissions that childhood deprivation may be a mitigating factor on sentence. In this respect, the Crown, while acknowledging that there were a number of matters which may have caused some disruption or grievance to the Offender during his childhood, these did not rise to the requisite standard of childhood deprivation as contemplated in Bugmy, and therefore would not significantly impact upon sentencing considerations.

107. Counsel for the Offender again drew the Court’s attention to the matters raised in the written submissions and affidavit of the Offender to place particular emphasis on the submission that the Offender’s upbringing, during which he witnessed some familial violence, may provide somewhat of an explanation for his own recourse to violence in the context of intimate relationships. It was also conceded that there was inconsistency between the Offender’s affidavit and the letter, both of which were tendered. As previously stated, I do not intend to make a Bugmy-style finding in respect of this Offender’s upbringing.

Statutory Aggravating and Mitigating Factors

108. I find that the following statutory aggravating factors exist:

1. the Offender has a record of previous convictions for both domestic and personal violence offences, which have been committed on a number of occasions since 2016 (s 21A(2)(d). The victim in a number of these offences was Ms Taueli, and the offences themselves include assault occasioning actual bodily harm, intentional choking and contravening apprehended domestic violence orders; and

2. the Offender was on conditional liberty at the time of the subject offending, being the 4 12 month Intensive Corrections Orders imposed for various domestic and personal violence offences on 22 January 2020 (s 21A(2)(j)). This is a particularly serious example of this as an aggravating factor, given that the conditional liberty related to Intensive Corrections Orders for domestic violence offences. The ICOs were breached not only because of the principal matter for sentence but also as the subject offending breached existing ADVOs.

109. I find that the following statutory mitigating factors apply:

1. the Offender has demonstrated genuine remorse for his actions in that he has accepted responsibility and acknowledged the harm caused (s 21A(3)(i)); and

2. the Offender pleaded guilty at an early opportunity (s 21A(3)(k)).

Formulation of Sentence

Objective Seriousness

Count 6

110. In respect of the principal charge, the Crown submitted that the offending falls above the mid-range of objective seriousness for offences of this type. Counsel for the Offender submitted this particular offending falls “at the lower end of the scale, well below the mid-range”. I find that the offence falls just below the mid-range for the following reasons:

1. the Offence did not involve any planning or pre-meditation, and appears to have occurred spontaneously following the consumption of a considerable quantity of alcohol. I note here that while self-induced intoxication might provide a context for this Offender’s actions, it cannot be taken into account as a mitigating factor (s 21A(5AA) CSP Act). There is no basis to find that the Offender was aware that the Victim was present;

2. the Victim was asleep at the time of the break-in;

3. the Offender commenced assaulting the Victim when he was asleep, placing him in a position of vulnerability;

4. the Offender dragged the Victim between different parts of the house and prolonged the assault;

5. the circumstances of aggravation and special aggravation arose from the same act;

6. the harm inflicted upon the Victim by the Offender was significant, although it would fall at the lower end of the range of examples of grievous bodily harm;

7. the Offender did not use a weapon or any other items to inflict grievous bodily harm upon the Victim;

8. the Victim required reconstructive surgery to repair the damage done by the Offender; and

9. the offence was a personal violence offence under the Crimes (Domestic and Personal Violence) Act.

Count 7

111. The breach was coming within the prescribed distance of the protected home. The offending was aggravated by the fact that the Offender was the subject of 4 Intensive Corrections Orders for domestic violence order breaches. His liberty in the community was conditional by reason of those orders which all related to offending against the same victim.

112. I find the objective seriousness for Count 7 to be just above the mid-range.

Remorse

113. As indicated previously, I find that the Offender has demonstrated genuine remorse. This is evidenced from his plea of guilty and his frank admissions to both Ms Taueli and to authorities upon handing himself in, and was further demonstrated by various documents tendered as part of the Offender’s case. This finding will be reflected in the sentence which is to be imposed.

114. I pause here to note the submission by the Crown, that contrary to the Offender’s assertion that his domestic violence offending was somehow related to the death of his friend, the offending pre-dated that death. Notwithstanding that inconsistency, I maintain my finding of remorse.

Prospects of Rehabilitation and Risk of Reoffending

115. Given the Offender’s prior record for similar offences, I am only able to assess his prospects of rehabilitation as guarded. It follows, therefore, that I am unable to make a finding as to the risk of reoffending. I note that in the Sentencing Assessment Report dated 20 January 2020 (which formed part of Exhibit A) the Offender was assessed as being a medium/low risk of reoffending. However, this report was produced prior to the subject offences, and is therefore less relevant. I maintain my finding that the prospects of rehabilitation and the risk of reoffending are both guarded.

S 5 Threshold

116. I find that no sentence other than one of imprisonment is appropriate. In the circumstances, I further find that a period of full time custody is the only appropriate form of imprisonment.

Purposes for Sentencing (s 3A)

117. I have had regard to the purposes for sentencing set out in s 3A of the CSP Act. That is:

1. to ensure that the sentence is adequate, having regard to the conduct of the Offender;

2. to deter both the Offender and others from committing similar offences;

3. to protect the community;

4. to promote the Offender’s rehabilitation;

5. to make the Offender accountable;

6. to denounce the Offender’s conduct; and

7. to recognise the harm done to the Victim.

118. The needs for denunciation and deterrence are significant, as is the recognition of the harm caused to the Victim. In my view, the sentence to be imposed today will adequately address these purposes.

Commencement Date

119. I intend to allow for some concurrency between this sentence that the balance of time for previous offending, which was between 21 May 2020 and 26 January 2021. Accordingly, I have determined that the commencement date for this sentence is 22 September 2020.

Discount for Guilty Plea

120. In accordance with s 25D(2)(a) of the CSP Act, the Offender is entitled to a discount of 25% for his early guilty plea, as was acknowledged by both the Crown and counsel for the Offender.

Ellis Discount

121. Counsel for the Offender contended that a further discount should be afforded to the Offender for assistance provided to authorities.

122. The issue of assistance to authorities was recently considered by the Court of Criminal Appeal in Irwin v R [2021] NSWCCA 172. In considering the circumstances in which an Ellis discount might apply, Rothman J made a number of significant observations. While I acknowledge this is a somewhat lengthy extract, it is my view that the following remarks are apposite in the circumstances:

[80] Over and above the foregoing, the circumstances of the offending were well known and easily proved. That which was said by the applicant was not said in circumstances “where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence”.

[81] In terms referable to s 23 of the Crimes (Sentencing Procedure) Act, that which is required to be assessed is the degree to which the offender has assisted authorities in, relevantly, the detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

…

[83] I have above cited a passage from Ellis, supra, which is now codified, as stated above, in s 23 of the Crimes (Sentencing Procedure) Act. Notwithstanding the codification of the allowance for assistance, the comments of the Court in Ellis and the cases that followed it in time provide guidance for the application of s 23.

[84] Assistance is a matter of mitigation and the offender bears the onus of proof, on the balance of probabilities, to establish that such assistance has been given and that a discount ought to follow.

123. As was discussed during the course of the sentence hearing, and given the nature of the disclosures made, I do not consider it appropriate that any such discount of the nature contemplated in R v Ellis, or by s 23, be made.

124. It is clear from the Agreed Facts that the Offender made disclosures to Ms Taueli which were similar to those made to the police and, in any event, I do not believe that a significant amount falls from those disclosures. In my view, the Offender has not disclosed criminality that would not otherwise have been detected, nor admitted guilt that was otherwise unknown (see Le v R [2019] NSWCCA 181 at [52]-[53]). In the circumstances, I find that the Offender has failed to discharge his onus entitling him to any further discount.

Standard Non-Parole Period

125. As indicated previously, the principal offence attracts a standard non-parole period of 7 years. However, I do not consider that this case should attract the standard non-parole period for the following reasons:

1. it is the Offender’s first time in custody;

2. the objective seriousness is below mid-range;

3. to impose the standard period would result in a sentence which would be disproportionately harsh; and

4. I intend to find special circumstances.

Special Circumstances

126. I adopt the submissions of the Crown, which were accepted by counsel for the Offender, and find that special circumstances exist for the following reasons:

1. the Offender would benefit from a longer period of supervision in order to assist him with his rehabilitation in respect of both his alcohol use and domestic violence issues;

2. it is the Offender’s first time in custody, which may cause additional hardship; and

3. the partial accumulation of the sentence upon the period served following revocation of the previous Intensive Corrections Order necessitates an adjustment of the statutory ratio.

127. Accordingly, I intend to increase the ratio of the time served on parole to that spent in custody above the statutory ratio.

Conviction and Sentence

128. Mr Bucca, you are convicted of the following offences:

1. offence H ending 319 sequence 6, being specially aggravated break and enter and committing a serious indictable offence, in breach of s 112(3) of the Crimes Act 1900 (NSW); and

2. offence H ending 319 sequence 7, being contravene a prohibition or restriction of an Apprehended Violence Order (domestic), in breach of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

129. I intend to impose an aggregate sentence. Before doing so, I provide the following indicatives (after 25% discount for the early guilty plea) and, for the primary offence, an indicative non-parole period, as follows:

1. for sequence 6, an indicative head sentence of 4 years and an indicative non-parole period of 2 years and 5 months; and

2. for sequence 7 an indicative sentence of 12 months.

130. For those offences, you are sentenced to an aggregate head sentence of 4 years and 6 months commencing 22 September 2020 and expiring on 21 March 2025. The non-parole period of 2 years and 8 months expires 21 May 2023, at which time you will be eligible for release on parole.

131. Further, as this offence meets the definition of personal violence offence (s 4(b1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)), albeit one where the person in need of protection was not the victim, following the admission of guilt, I impose a Final Apprehended Violence Order, pursuant to s 39, for a period of 5 years, commencing today and expiring 11 August 2026. The order is for the standard prohibitions in s 36:

1. assaulting or threatening the protected person, Ms Cleo Taueli, or a person with whom the protected person has a domestic relationship;

2. stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship; and

3. intentionally or recklessly destroying or damaging any property, or harming an animal, that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship.

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I certify that the previous 131 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Amendments

28 September 2021 - Decision reference on cover page amended to correct reference paragraph numbers

Decision last updated: 28 September 2021