R v Gagliardi

Case [2021] NSWDC 822


District Court


New South Wales

Medium Neutral Citation: R v Gagliardi [2021] NSWDC 822
Hearing dates: 29 November 2021
Date of orders: 14 December 2021
Decision date: 14 December 2021
Jurisdiction:Criminal
Before: P Taylor SC DCJ
Decision:

See [65]

Catchwords:

CRIME — Property offences — Destroying or damaging property

CRIME — Violent offences — Use of an offensive weapon with intent to commit an indictable offence - assault occasioning actual bodily harm - stalking or intimidation

CRIME — Apprehended violence orders — Contravene apprehended violence order

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Subjective considerations on sentence — Mental illness

Legislation Cited:

Crimes Act 1900, s 33B, s 59, s 195

Crimes (Domestic and Personal Violence) Act 2007, s 13, s 14

Crimes (Sentencing Procedure) Act 1999, s 3A, s 7, s 21A, s 73, s 73A, s 75A

Criminal Procedure Act 1986, s 166

Cases Cited:

Courtney v R (2007) 172 A Crim R 371

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

JM v R [2014] NSWCCA 297

Muldrock v The Queen (2011) 244 CLR 120

R v Baugh [1999] NSWCCA 131

R v Bloomfield (1998) 44 NSWLR 734

R v Chisari [2006] NSWCCA 19

R v De Simoni (1981) 147 CLR 383

R v Engert (1995) 84 A Crim R 67

R v Henry (1999) 46 NSWLR 346

R v Huynh [2005] NSWCCA 220

R v Israil [2002] NSWCCA 255

R v Lulham (2016) 263 A Crim R 287; [2016] NSWCCA 287

R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97

R v Overall (1993) 71 A Crim R 170

R v Price [2016] NSWCCA 50

R v Verdins [2007] VSCA 102

R v Wright (1997) 93 A Crim R 48

Regina v Drew [2000] NSWCCA 384

Regina v Zhang [2004] NSWCCA 358

Waterfall v R [2019] NSWCCA 281

Texts Cited:

Sentencing Bench Book (Judicial Commission of New South Wales)

Category:Sentence
Parties: Regina
Elena Gagliardi (Offender)
Representation:

Counsel:
Mr W Tuckey (Offender)

Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Mark Rumore (Offender)
File Number(s): 2017/00283566
Publication restriction: None

Judgment

Offences

  1. Elena Gagliardi pleaded guilty to offences of intentionally damaging property under s 195(1)(a) of the Crimes Act 1900; use of an offensive weapon with intent to commit an indictable offence under s 33B(1)(a) of the Crimes Act, the indictable offence being intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007; and assault occasioning actual bodily harm under s 59(1) of the Crimes Act. These offences are referred to respectively as the first, second and third offence in this judgment on her sentence.

  2. In addition, Ms Gagliardi pleaded guilty to related offences of stalk or intimidate intending fear of physical harm under s 13(1) of the Crimes (Domestic and Personal Violence) Act; and knowing contravention of an Apprehended Personal Violence Order under s 14 of the same Act. These related offences…

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Details
AGLC
R v Gagliardi [2021] NSWDC 822
Case
[2021] NSWDC 822
Decision Date

CaseChat Overview and Summary

The case of R v Gagliardi involved the defendant, Gagliardi, who was charged with a series of offences including the destruction of property, the use of an offensive weapon with intent to commit an indictable offence, assault occasioning actual bodily harm, stalking, and contravening an apprehended violence order. The case was heard in the relevant Australian court, where the defendant pleaded guilty to all charges. The primary legal issues the court had to address were whether the defendant's actions constituted the specific offences charged, the relevance of mitigating factors such as the defendant's plea of guilty and mental health conditions, and the appropriate sentence to impose in light of these factors.

In determining these issues, the court considered the nature and circumstances of the offences. It examined the evidence related to the property damage, the use of an offensive weapon, and the stalking behaviour. The court also took into account the defendant's guilty plea and the presence of mental health issues, which were presented as mitigating factors. The court acknowledged the defendant's mental illness but also considered its impact on the defendant's culpability and the appropriate sentencing approach. The court balanced these factors, including the need for deterrence and the protection of the community, in arriving at a sentence that it deemed just and appropriate.

The court found that the defendant's actions did indeed constitute the charged offences, given the clear evidence presented. It accepted the mitigating factors of the guilty plea and mental health issues, which resulted in a reduced sentence. The court emphasised that while these factors warranted some leniency, they could not fully excuse the seriousness of the offences. Ultimately, the court imposed a sentence that it believed was proportionate to the crimes committed, taking into account both the need for punishment and the defendant's personal circumstances. The court's decision was guided by the principles of justice and the specific facts of the case, ensuring that the sentence served both punitive and rehabilitative purposes.

Orders

Orders of the court

See [65]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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