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R v Gagliardi

R v Gagliardi

Case [2021] NSWDC 822 14 December 2021

Property Offences

Violent Offences

Apprehended Violence Orders

Sentencing

Mental Illness

Criminal Law

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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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gagliardi

Details

AGLC: R v Gagliardi [2021] NSWDC 822
Case: [2021] NSWDC 822
Decision Date: 14 December 2021

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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Citations

AGLC Citation

R v Gagliardi [2021] NSWDC 822

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 17 of 17 shown

Waterfall v R
[2019] NSWCCA 281 Para 43

…, [19] the more serious the offence. So the lower level of actual bodily injury renders the gravity of the offence less serious. 18. Cf Waterfall v R [2019] NSWCCA 281 at [33], [35] and other decisions at [50-040] of the Sentencing Bench Book. 19. See R v Bloomfield (1998) 44 NSWLR 734 at 740, Regina v Zhang [2004]…
R v Lulham
[2016] NSWCCA 287 Para 28

…n and is perhaps modified in this case by the absence of intrusion into the victim’s house. [2] 1. R v Lulham (2016) 263 A Crim R 287 at [5]; [2016] NSWCCA 287 at [5]. 2. Lulham at [6].…
R v Price
[2016] NSWCCA 50 Para 56

…ther a court should specify an indicative sentence not involving a period of imprisonment, but I have done so in accordance with R v Price . [22] 22. [2016] NSWCCA 50 at [76], [80], cf JM v R [2014] NSWCCA 297 at [39], point 9.…
JM v R
[2014] NSWCCA 297 Para 56

…sentence not involving a period of imprisonment, but I have done so in accordance with R v Price . [22] 22. [2016] NSWCCA 50 at [76], [80], cf JM v R [2014] NSWCCA 297 at [39], point 9.…
Muldrock v The Queen
[2011] HCA 39 Para 32

…fended, although she has been on bail, and she has continued to engage with treatment and been compliant with her medication. 6. Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 34

…g Procedure) Act, which provides that an absence of full awareness of the consequences of her actions is to be taken into account in mitigation. 8. (2010) 79 NSWLR 1 at [177].…
R v Verdins
[2007] VSCA 102 Para 36

…e or the sentence is concluded, especially if treatment during incarceration has been ineffective or the rehabilitation unachieved. 10. R v Verdins [2007] VSCA 102 at [32], Courtney v R (2007) 172 A Crim R 371 at [14]. 11. R v Engert (1995) 84 A Crim R 67 at 71.…
R v Chisari
[2006] NSWCCA 19 Para 39

…use ” or “ possession ” only of an offensive weapon, and should be taken into account as an aggravating factor. [12] 12. R v Chisari [2006] NSWCCA 19 at [31] and cases at [50-140] of the Sentencing Bench Book.…
R v Huynh
[2005] NSWCCA 220 Para 42

…ng factor, [17] but as harm is an element of the third offence, it is inappropriate to double count as aggravating the s 33B offence. 14. R v Huynh [2005] NSWCCA 220. 15. R v De Simoni (1981) 147 CLR 383 at 389. 16. R v Overall (1993) 71 A Crim R 170 at 175; R v Baugh [1999] NSWCCA 131 at [35]. 17. R v Mostyn (2004)…
R v Zhang
[2004] NSWCCA 358 Para 43

…CCA 281 at [33], [35] and other decisions at [50-040] of the Sentencing Bench Book. 19. See R v Bloomfield (1998) 44 NSWLR 734 at 740, Regina v Zhang [2004] NSWCCA 358 at [18].…
R v Mostyn
[2004] NSWCCA 97 Para 42

…81) 147 CLR 383 at 389. 16. R v Overall (1993) 71 A Crim R 170 at 175; R v Baugh [1999] NSWCCA 131 at [35]. 17. R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97.…
R v Israil
[2002] NSWCCA 255 Para 32

…and she has continued to engage with treatment and been compliant with her medication. 6. Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.…
R v Drew
[2000] NSWCCA 384 Para 40

…, swinging at the victim and the head of the victim is also a more serious use among the range of uses contemplated by the offence. 13. Regina v Drew [2000] NSWCCA 384 at [15].…
R v Baugh
[1999] NSWCCA 131 Para 42

…33B offence. 14. R v Huynh [2005] NSWCCA 220. 15. R v De Simoni (1981) 147 CLR 383 at 389. 16. R v Overall (1993) 71 A Crim R 170 at 175; R v Baugh [1999] NSWCCA 131 at [35]. 17. R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97.…
R v Henry
[1999] NSWCA 111 Para 32

…treatment and been compliant with her medication. 6. Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.…
R v De Simoni
[1981] HCA 31 Para 42

…ment of the third offence, it is inappropriate to double count as aggravating the s 33B offence. 14. R v Huynh [2005] NSWCCA 220. 15. R v De Simoni (1981) 147 CLR 383 at 389. 16. R v Overall (1993) 71 A Crim R 170 at 175; R v Baugh [1999] NSWCCA 131 at [35]. 17. R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97.…
R v Bloomfield
[1998] NSWSC 342 Para 43

…the offence less serious. 18. Cf Waterfall v R [2019] NSWCCA 281 at [33], [35] and other decisions at [50-040] of the Sentencing Bench Book. 19. See R v Bloomfield (1998) 44 NSWLR 734 at 740, Regina v Zhang [2004] NSWCCA 358 at [18].…

Legislation cited in this decision · 4

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
13 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
3A 2 mentions (from Para 27)
Crimes Act 1900 (ACT)
33B 2 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
166 2 mentions (from Para 2)

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