R v Casini

[2019] NSWDC 376

District Court

New South Wales

Medium Neutral Citation:	R v Casini [2019] NSWDC 376
Hearing dates:	11 June 2019
Date of orders:	18 June 2019
Decision date:	18 June 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Convicted and sentenced to a non-parole period of 2 years and 6 months, to date from 8 May 2018 and expire on 7 November 2020, with a balance of term of 1 year and 3 months. The total term of the sentence is 3 years and 9 months.
Catchwords:	CRIMINAL – sentence – aggravated detain cause actual bodily harm – domestic violence – relevance of mental health issues – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act)1999
Cases Cited:	Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194 Hurst v R [2017] NSWCCA 114 R v Edigarov (2001) 125 A Crim R 551 R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 R v Newell [2004] NSWCCA 183
Category:	Sentence
Parties:	Regina (Crown) Albert Frank Casini (Offender)
Representation:	Solicitors: Ms Naividi for the Crown Mr C Murnane for the offender
File Number(s):	2018/143410, 2018/159812
Publication restriction:	Nil

SENTENCE

1. Albert Frank Casini, 46 years of age, appears for sentence in relation to one offence of aggravated detain, cause actually bodily harm, pursuant to s 86(2)(b) of the Crimes Act. The maximum prescribed penalty for that offence in 20 years’ imprisonment. There is no prescribed standard non‑parole period.

2. The offender pleaded guilty on 5 February 2019 at the Wyong Local Court. An indictment was presented today in circumstances where there was a defect in the original court attendance notice. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

3. The offender has been in custody since his arrest on 8 May 2018. Accordingly, the sentence imposed today will be backdated to that date.

Agreed facts

4. The offender, Albert Frank Casini, is 46 years old. The victim, Sandy Lemon, is 47 years old. As at 23 April 2018, the victim and the offender had been in an intimate relationship for a period of five months. The offender and the victim were living together at The Entrance.

The day prior to the offence, 23 April 2018

5. On Monday 23 April 2018, the victim and the offender were together at the unit in the process of packing. At approximately 6pm, the offender said to the victim, “You neglect me, you don’t pay me enough attention.” The victim replied, “How old are you, five? I work six days a week and I’ve had to spend it moving and you didn’t give me a hand.”

6. As a result of that conversation an argument commenced and the offender told the victim, “That’s it, I’m leaving you, you selfish bitch.” To avoid further confrontation the victim walked downstairs to another unit to visit her friend and neighbour, Sherene Bolr. The victim stayed with Ms Bolr for the night.

The offences on 24 April 2018

7. Early the next morning on Tuesday 24 April 2018, the victim left and returned to her unit and went to bed. The offender was not at home at this time. Shortly after arriving home, at approximately 2.27am, the victim heard the front door of the unit close and saw the offender coming into the unit. This was captured on CCTV footage. The victim said to the offender, “I thought you left, just leave again, give me back the key and get out.” The offender said, “I’m not going anywhere,” to which the victim replied, “I’ll leave, I’ll stay at Sherene’s.”

8. At 2.28am the victim opened the front door to their unit and the offender slammed it closed. This is captured on CCTV. The victim can be seen attempting to leave the unit before being forcefully prevented from doing so by the offender. The offender grabbed the victim by her hair, which was in a ponytail. The victim grabbed the offender’s hand which was holding the victim’s hair, at which point the offender hit the victim with his hand, which was holding his car keys. The victim felt the keys hit her face and the sides of her nose, which caused a small laceration. The victim fell down from the force of being hit. The offender proceeded to drag the victim about 4 feet along the ground away from the front door. The offender held the victim down by her hair with one hand and punched her multiple times to her head, behind her left ear and chest. The victim was in a lot of pain and felt dizzy.

9. The offender then pulled the victim to her feet and the victim was screaming “Help” during the time. As a result, the offender put a hand over the victim’s mouth, muffling her screams for help. The offender said, “Don’t scream or you’re going to get worse.” The victim said, “You hit like a bitch.” The offender then used his right hand to punch the victim in an uppercut style which contacted under her chin; although, the victim remained standing at this time. The offender then used his left hand to push the victim up against the hallway wall. The offender took the victim by her shirt, above her left shoulder, and dragged her into the dining room and sat the victim on a chair.

10. The offender continued yelling at the victim, “You’re a fucking cunt,” and similar remarks. As the victim was sitting on the chair the offender continued yelling at her. The victim said, “Can I go to the bathroom?” The offender said, “No.” The offender continued to yell at the victim before he yelled, “How would you like to feel these steeled capped boots?” The victim said, “Please don’t kick me with the steel cap boots?” The offender said, “Oh yes I am.”

11. The offender, who remained standing, kicked the victim using his left leg and his boot contacted the victim’s left knee. The victim experienced sharp pain and suffered substantial bruising to the knee. The victim grabbed her knee and bent over. The offender pushed her upright and punched her in the left hand side of her head. This caused the victim’s ears to ring. The victim said, “Can’t we just sit down and talk?” The offender said, “No.” The offender grabbed the victim from behind and ripped her necklace, causing it to tear. The offender then pushed the victim to the seat and punched her in the left side of her head. The offender said, “Don’t move unless I tell you to.” The victim said, “Can I have a drink of water?” The offender said, “No.”

12. The offender proceeded to lean against the wall in the dining room and stare at the victim. The victim said, “What are you looking at?” The offender said, “You. Why do you make me do this to you? It’s all your fault.” The victim said, “Can I go to the toilet?” The victim said this because she wanted to get close enough to run for the front door. The offender said, “No, you’re not moving off the chair.”

13. Due to the offender’s violence and words, the victim was of the belief that she could not leave the chair. The offender approached and said, “Get into the shower and clean yourself up, you’ve got blood dripping off your nose. Why did you hit yourself in the head with the keys. Don’t think about going to police, they won’t believe you because you’re clumsy. That’s the only warning you’re going to get.” The victim said, “You’re a lunatic. There’s something seriously wrong with your brain.” The offender said, “No, you’re nothing but a cunt. I regret the day I went out with you.”

14. The victim them walked to the shower and took off her clothing before having shower. The offender stood at the doorway of the bathroom watching the victim at this time. The victim subsequently got out of the shower and dressed herself in her work uniform because she had to work at 4am. The victim said to the offender, “Can I get a drink from the kitchen?” to which the offender replied, “Yep.” At approximately 3.46am, the door to their unit was opened by the offender. He appeared to pick something up off the floor outside the unit and then shut the door. At approximately 4.15am, the offender is seen leaving the unit. He is then captured on a different camera waiting at the lifts at 4.16am, before exiting the lift at the basement. The detain lasted around two hours from about 2.27am to just after 4am when the victim escaped.

Complaint evidence

15. The victim thought the offender had gone to the toilet and the victim looked for him. When she could not see him, she left the unit. The victim is captured on CCTV leaving the unit at approximately 4.22am. She put her hand behind the door and appears to lock it. The victim is captured on CCTV waiting at the lifts, wiping her eyes and nose with a tissue and is finally captured at 4.23am exiting the lifts downstairs.

16. The victim called Ms Bolr’s mobile telephone and knocked on her door saying, “Help, let me in?” The victim walked inside and fell on the floor crying. The victim told Ms Bolr what had happened. Ms Bolr subsequent called the victim’s supervisor and told him that the victim would be absent from work. The victim told Ms Bolr that she needed to rest for 10 minutes before going to hospital as she felt dizzy and her ears were ringing. The victim fell asleep crying at this time.

Medical evidence

17. At about 12pm Ms Bolr woke the victim up. Ms Bolr obtained photographs of the victim’s injuries using the victim’s mobile phone. The victim had suffered the following:

1. a small laceration to both sides of the bridge of her nose, which bled;

2. a red mark which later bruised behind her left shoulder;

3. a bruise to her chest; and

4. a bruise to her left knee.

18. A short time later Ms Bolr drove the victim to obtain medical treatment. Upon returning to her unit, the victim could not find her shirt and saw that the blood from her nose had been cleaned up from the floor.

19. On 25 April 2018, Ms Bolr took more photographs of the victim’s injuries using the victim’s mobile phone.

Telephone evidence

20. During the date of the incident and the following days, the offender and the victim had extensive conversation over telephone text messages. On 25 April 2018, the victim sent a message to the offender stating, “You put your hands on me. What I went through yesterday morning has scared me to death with the way you treated me continually punching me in the head.” The offender replied, “Read your words and make me understand why you sent them?” The victim replied, “It doesn’t matter what I say or said, you should not have did what you did to me.” The offender replied, “No, you shouldn’t have said crap.”

21. On 28 April 2018, the victim sent a message to the offender saying, “You are damn lucky I haven’t charged you yet.” The offender replied, “You made it escalate with nasty out of control comments.” There are a number of text messages of this nature contained within the victim’s mobile phone.

Report to the police

22. About 8pm on 6 May 2018, the victim attended The Entrance Police Station to report the matter. She provided a statement to police and showed police the remains of her injuries, which were photographed. The victim also showed police the text message conversations between the victim and the offender. The victim stated she never reported the matter to police because she was scared of threats made by the offender. The victim holds significant fears for her safety.

23. The offender was arrested on 7 May 2018. He declined a record of interview with police.

24. Those facts disclose very serious objective criminality. This is particularly so because the offending can properly be characterised as an episode of domestic violence. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community. In R vEdigarov (2001) 125 A Crim R 551 at 558, Woods CJ at CL stated as follows:

“…such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

25. Recently, the High Court observed in R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [21] that there has been a societal shift when sentencing for domestic violence offences. The court stated as follows:

“…current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.”

26. Neither the courts nor the community will tolerate violent acts upon women. A clear message needs to be sent to those who engage in such conduct that it is abhorrent and will be met with condign punishment.

Assessment of objective seriousness

27. In assessing the objective seriousness of the offending, I have had regard to the R v Newell [2004] NSWCCA 183 at [32] and the factors referred to therein that are relevant in relation to detention offences. I have taken into account the following factors:

1. The conduct is a serious episode of domestic violence.

2. There was a vicious and sustained assault upon the victim, in circumstances where the offender would have been well aware there was little likelihood of any meaningful physical retaliation by the victim. There were multiple forceful blows, including punches to the victim’s head and body and kicking with steel capped boots. The offender also placed his hand over the victim’s mouth so that she could not scream. The victim was also dragged by the hair.

3. There was also a significant amount of emotional intimidation and also verbal threats including, “Don’t scream or you’re going to get it worse.”

4. The nature of the injuries sustained by the victim, including bruising and lacerations.

5. The length of the detention was for a period of about 2 hours between 2.27am and just after 4am. In Hurst v R [2017] NSWCCA 114 at [114], Hoeben CJ at CL, with whom Price and Lonergan JJ agreed, observed as follows:

“…although the duration of the detention may not have been particularly long by an objective measurement, regard has to be had to the perspective of the complainant, her position in relation to the applicant and the purpose of the detention.”

There is no doubt in my view that this would have been an extremely terrifying incident from the perspective of the victim.

6. The advantage sought by the offender was psychological gratification.

28. Having regard to those factors, I assess the objective seriousness at the higher end of the mid-range.

Aggravating features

29. The Crown relied upon one aggravating feature, namely, that the offence occurred in the home of the victim. I accept that aggravating feature as established.

Victim impact statement

30. Sandy Lemon provided a victim impact statement to the court. She indicates that the offending has left her “with constant fear and anxiety.” She described having ongoing flashbacks, stress and concern that “he will come out and cause me harm again.” She outlines, in her victim impact statement, the various controlling aspects of the offender’s behaviour towards her during their relationship. She states as follows: “This abuse has left me with lifelong trauma and will continue to impact on my life.”

31. In my view, the impact of the offending described by the victim is entirely what would be expected after such a violent and terrifying ordeal. The Court is hopeful that with love and support the victim is able to look forward to a more positive future. She has already shown significant strength and resilience in circumstances where she was able to ultimately report the matter to police.

32. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act).

Subjective circumstances

33. The offender is now 46 years of age.

34. He has a criminal history commencing in 1996, when he was dealt with for offences of self-administer prohibited drug and cultivate prohibited plants. In respect of each of those matters, he was fined.

35. In 2001, he was dealt with for offences of destroy or damage property and negligent driving. In respect of each of those matters, he was fined.

36. In 2013, he was dealt with for an offence of contravening an apprehended violence order. That matter was dismissed pursuant to s 10.

37. In 2015, he was dealt with for an offence of assault occasioning actual bodily harm (domestic violence). He was fined and a s 9 bond was imposed for a period of 18 months. Also in 2015, he was dealt with for a further offence of contravening an apprehended violence order and a s 9 bond for 12 months was imposed.

38. In 2018, he was dealt with for possession of equipment to administer drugs and drive with illicit drug present in blood. In respect of each of those matters, he was fined.

39. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to any leniency on sentence. Also, specific deterrence is important in circumstances where he has a prior history for domestic violence offences.

40. The following material was tendered on behalf of the offender:

• Exhibit 1, a report of Dr Furst, 15 May 2019, forensic psychiatrist;

• Exhibit 2, a letter of the offender, undated;

• Exhibit 3, certificates for courses completed by the offender;

• Exhibit 4, defence written submissions; and

• Exhibit 5, a letter from Br Cyril Bosco, Chaplain, Parklea Correctional Centre dated 4 March, 2019.

41. The offender’s background is outlined in the report of Dr Furst. Dr Furst conducted an interview with the offender for one hour on 12 April 2019. The offender was born in Auburn. He grew up in Belmore, where he attended school. He reported that he was an average student. His father worked for Canterbury Council. He passed away 5 years ago. His mother stayed at home. She lives in Port Macquarie.

42. The offender has been employed since leaving school in various positions, including a council worker for 12 months, a wards man at hospital between the ages of 17 and 23, and a surgical dresser at RPA for 5 to 6 years. In 2000 he worked with a fire equipment maintenance company. In the 1990’s he began his own commercial cleaning business. That business was not successful and was wound up. He commenced the same business in 2000, which lasted for 15 years.

43. In 2014 his father passed away from a heart attack. The offender reported that he struggled to cope after his death and became depressed. This negatively impacted upon his marriage and he separated from his wife. This marriage was of 22 years’ duration. He has two children, a son Julian, now aged 13 years, and a daughter Ella, aged 14 years.

44. In 2015 after the separation, the offender moved to the Central Coast with his son. The offender gained employment as a cleaner and security guard. He described himself as settling well into his new life on the Central Coast.

45. In 2016, his former wife sought sole custody of both children and commenced proceedings in the Family Court. The offender reported that he could not afford legal representation and found the proceedings very overwhelming. He ended up being too stressed to work and left his job in November 2016.

46. Ultimately, in February 2018, police gave the offender an order indicating that his former wife had obtained sole custody of both children. At this time, the offender was worried about the risk of self-harm and saw a GP who prescribed anti-depressant medication. The offender did not fill the script as he had no money to buy the medication and was worried about potential side effects.

Drug and alcohol history

47. The offender described no use of drugs in his adult life until he began using Ice after the separation from his wife in 2018. His use continued until his arrest in April 2018.

Offence related issues

48. The offender reported that he was homeless in 2017 before moving in with the victim, Sandy Lemon. He was unemployed and still coming to terms with the loss of the custody of his son. Dr Furst noted as follows:

“He subsequently found out his mother had a stroke and was diagnosed with inoperable brain cancer, which made him feel severely depressed. He continued to use methylamphetamine to cope with his problems. He said he was ‘not in a good frame of mind’ at the time of the offences in question. He said, ‘I am appreciative for Sandy, she helped me out of a tough spot. I am very remorseful about what I did. I’ve learnt from my mistakes, drugs can ruin lives. I wasn’t on a good path when I was out there. I am really sorry I have written a letter.’”

Medical history

49. The offender has no history of major medical issues. He does not take any regular medication.

Mental state examination

50. In relation to the offender’s current mental functioning, Dr Furst stated as follows:

“He was not especially depressed and was not manic. There were no indications of psychosis. He had insight into his emotional problems and the damaging effects of drugs on his life over recent years.”

51. In relation to the offender’s recent progress, Dr Furst stated as follows:

“Mr Casini said he felt lucky he was ‘picked up’ (arrested) when he was, stating that it opened his eyes to his addiction.”

52. He has since completed the Remand Addictions Course in custody, which he found helpful. He does not want to use drugs again, stating:

“He wants to live life cleanly. He was motivated to engage in further psychological counselling, including drug and alcohol counselling or rehabilitation. Mr Casini’s boss at ‘Formfit’ remains supportive with Mr Casini being hopeful of working there again when released on parole.”

53. Dr Furst was of the opinion that the offender meets the criteria for diagnosis of:

1. Adjustment Disorder with Depressed Mood, severe and chronic; and

2. Substance Use Disorder (methylamphetamine).

54. Dr Furst stated as follows:

“In my opinion Mr Casini’s offence in April 2018 involving Sandra Lemon was largely the product of his mood instability and the dependence on methylamphetamine he had developed at the time. An addiction maintained by his underlying severe and chronic adjustment disorder is mitigating, to some degree, against the seriousness of his offending.”

Treatment recommendations

55. Dr Furst recommended that the offender engage in psychological treatment to improve his coping skills regarding the loss of the custody of his son and also grief counselling with respect to his father. He also recommended the EQUIPs (aggression) or other domestic violence programs and further drug and alcohol counselling such as the EQUIP (addiction) program, with a focus on relapse prevention.

56. Dr Furst also noted the availability of intensive drug and alcohol treatment programs or the more intensive compulsory drug treatment program at Parklea. Dr Furst also recommended placement in a drug and alcohol rehabilitation facility upon release from custody. Although noting a return to employment, together with drug and alcohol counselling in the community, would be equally beneficial, he also recommended referral to a psychologist to pursue a mental health plan.

57. It was submitted on behalf of the offender that the offender’s mental health is causally connected to the offending and, accordingly, warrants a reduction in the otherwise appropriate sentence.

58. In Director of Public Prosecutions (DPP) (Cth) vDe La Rosa [2010] NSWCCA 194, commencing at [177], McClellan CJ at CL summarised the principles relating to offending from mental illness and their relevance to sentence proceedings as follows:

• “Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence…

• “It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed…

• “It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced…

• “It may reduce or eliminate the significance of specific deterrence…

• “Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.”

59. Having regard to the evidence of Dr Furst, I am satisfied the offender at the time of the offending was suffering from an Adjustment Disorder with Depressed Mood and Substance Use Disorder, and that such conditions were causally connected to the offending.

60. Whilst I note that self-induced intoxication is not a matter in mitigation on sentence (see s 21A(5AA), Crimes (Sentencing Procedure) Act), I am satisfied that the underlying adjustment disorder would have impacted upon the offender’s moral culpability. Accordingly, in those circumstances, I propose to moderate the otherwise appropriate sentence to a limited degree.

Remorse

61. The offender wrote a letter to the Court, stating he is “disgraced and appalled by his behaviour.” He continued as follows:

“All I can do is solemnly apologise for the pain and trauma I have inflicted on the victim’s life.”

62. He concluded as follows:

“My goal now your Honour is to be a good father and a benefit to the community. Words cannot express how sorry I am to the victim and the anguish suffered.”

63. Having regard to that evidence, I am satisfied that the offender is genuinely remorseful.

Prospects of rehabilitation

64. I am satisfied the offender has good prospects of rehabilitation having regard to his current motivation to engage in counselling and rehabilitation, he has previously been employed when in the community, he has insight into his offending behaviour and is currently committed to being a good father upon release.

65. In addition, I note that he has completed a number of courses whilst in custody to assist with his rehabilitation (see exhibit 3). Also, I have taken into account the letter under the hand of Chaplain Bosco (exhibit 5) indicating that, through his interactions with the offender, he is of the view that he is “a genuine person who seems intent on turning his life around.” Having regard to those circumstances, I am also satisfied the offender is unlikely to reoffend.

Special circumstances

66. I am satisfied special circumstances are established, in circumstances where this will be the offender’s first custodial sentence and he will also benefit from a lengthier period on parole to ensure he has the best chance of remaining drug free and also offence free.

67. Accordingly, I propose to vary the statutory ratio between the non-parole period and the parole period pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act.

Determination

68. In determining the appropriate sentence I have had regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act.

69. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (s 5(1), Crimes (Sentencing Procedure) Act).

70. I have had regard to the objective gravity of the offence, the relevant prescribed maximum penalty and the offender’s subjective circumstances. I have also taken into account the offender’s plea of guilty.

71. Mr Casini, in relation to the offence of aggravated detain, cause actual bodily harm, you are convicted.

72. I sentence you to a non-parole period of 2 years and 6 months, to date from 8 May 2018 and expire on 7 November 2020, with a balance of term of 1 year and 3 months. The total term of the sentence is 3 years and 9 months. The starting point for that sentence was 5 years, which I have discounted by 25% for your plea of guilty, leaving the total term of 3 years and 9 months.

73. I have found special circumstances and varied the ratio between the non‑parole period and the parole period. The earliest date upon which you will be eligible for parole is 7 November 2020.

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Decision last updated: 05 August 2019