R v Kyriakoulis

[2024] NSWDC 304

District Court

New South Wales

Medium Neutral Citation:

R v Kyriakoulis [2024] NSWDC 304

Hearing dates:

21 February, 23 April and 5 June 2024

Date of orders:

5 June 2024

Decision date:

05 June 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 3 years 4 months with a non‑parole period of 2 years

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Domestic violence — “Domestic violence offence”

SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of the Apprehended Domestic Violence Order — Home of victim — Presence of child — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty — Attempted rehabilitation

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Deprived childhood

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

BugmyvThe Queen [2013] HCA 37; (2013) 249 CLR 571

Category:

Sentence

Parties:

Tristan Jamieson-Kyriakoulis (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
T McKenzie (for the offender)
Public Prosecutions (NSW) (Crown)

Solicitors:
Legal Aid (NSW) (for the offender)
J Loosley and S Kerr for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/87092

JUDGMENT – ex tempore revised

Introduction

1. Tristan Kyriakoulis is for sentence for an offence of Aggravated Break and Enter Commit a Serious Indictable offence that is, assault. A circumstance of aggravation is he knew a person was present in the dwelling: Crimes Act 1900 (NSW), s 112(2). The offence was a domestic violence offence and occurred after the breakup of his relationship with the mother of his three children. It occurred while he was on parole for an offence involving the same complainant. He was also subject to Apprehended Domestic Violence Orders, and he was subject to a Community Correction Order.

2. It was accepted that so serious was the offending that only a custodial sentence could meet the purposes of sentencing and operate to protect the complainant and vindicate the complainant’s dignity.

3. The offender was also at the relevant time using methylamphetamine, often known as ‘ice’. There is a concern that future contact and access to the children might trigger further violence and further breaches. This risk could be moderated if the offender’s illicit drug problem was addressed. Efforts were made to enable Kyriakoulis to engage in the strict Balund-a program run by Community Corrections from the north coast of New South Wales. He was accessed as suitable and granted bail to attend that program.

4. The fresh report from Balund‑a indicates that he did engage with them and attempt to deal with his underlying problems. But a number of significant issues arose, and he left the program. When he did so, he kept to a promise he made to me when I granted him bail by:

1. Notifying the relevant authorities and having the matter listed before me as soon as possible; and

2. Not breaching the bail conditions and Apprehended Domestic Violence Orders in place.

5. I will not punish him for the failure to complete the program. To the contrary, I will give him some benefit because of his attempts to deal with some of his underlying problems. This progress is also reflected in the courses he has done in custody, and his acceptance of past failures. That he did not run away from his responsibilities means that I can have more confidence that he will adhere to both his future parole conditions and the Apprehended Domestic Violence Orders in place.

6. The otherwise appropriate sentences will be reduced by 25% to reflect the utilitarian value of the early guilty plea.

Agreed Facts

7. Following the breakup of their relationship and the offences which led to Kyriakoulis being gaoled and placed on Community Correction Orders, the complainant and her children were found a safe location to live. She and the family had lived there for a year and were of the view that the offender did not know where they lived.

8. On 13 March 2023, in the early evening, the complainant was on the front porch of her new home. The children were with her. She was speaking with her sister and her sister’s partner, who had just arrived.

9. Without warning the offender grabbed her from behind. He had come from within the home. He dragged her back into the house. She fell down just inside the doorway of the premises. She held onto the doorframe and was briefly able to get outside, however, she was dragged back inside the house again.

10. He kept calling her name. One of the children was screaming. Her sister and partner ran up to help her. By the time they got to the top of the porch’s stairs the offender almost had the complainant inside. He was trying to close the door. She was desperately hanging on. During the course of the struggle her pyjama shirt was ripped. She was able to slip out of the shirt and get away. Her sister ran in and pushed the offender away. The complainant, her sister, her sister’s partner, and the children were able to drive away. The police were called.

11. The offender had gained entry to the house by removing a screen from a bedroom window. One of his children saw him walking through the house.

12. As a result of the attack the complainant suffered bruising to her legs, swelling to both forearms and cuts to her fingers. She had pain in her hip.

13. The offender was arrested on 16 March 2023. Has was in custody until bail was granted on 23 April 2024.

Objective seriousness

14. The offence occurred in a home where the complainant thought she was safe. The offence was premeditated. It occurred in the presence of his children, the people he said he cared most about. There is no rational reason for the attack. There was violence and injury. The crime was another attempt by him to exercise control over the complainant. The offence further undermined the complainant’s feelings of safety and security. It was in deliberate breach of orders of the Court and promises he made to be of good behaviour.

15. This offence was a serious example of its type. It is accepted that a sentence of some length must be imposed to reflect all the purposes of sentencing, including the objective seriousness of the offending and the aggravating feature, that it occurred in breach of various court orders.

16. Care needs to be taken because there is a breach before the Court for sentence: Crimes (Domestic and Personal Violence) Act (NSW), s 14(1). I do not double-count sentencing factors, such as offending in breach of court orders. The sentence imposed for the breach will be partly concurrent with the sentence for the principal offence.

Subjective case

17. The offender has a criminal record. He is not entitled to the leniency often given to first offenders, although there is a significant gap in that record until the various matters that brought him before the Court following the breakup of this relationship.

18. In the material before me are statements noting that he wanted to “help” his partner. These are demonstrative of distorted cognition. Nothing he did that day could have helped her or his children. It is indicative of loss of control often associated with illicit drug use and a lack of proper perspective as to the nature of a truly loving relationship.

19. Ms Seers provided a psychosocial assessment report dated 16 August 2023. She reveals matters that point in different directions. Much of it is uncontroversial. There is evidence that indicates that the offender’s moral culpability must be regarded as less than persons who did not have as many disadvantages as the offender had in his life. He has overcome some of those disadvantages, but the report, also indicates a degree of victim-blaming. He sought to justify his controlling behaviour. It is clear that at the relevant time he did not understand his responsibilities as an ex‑partner, as a father, and as a member of the community.

20. At the same time, as Ms Seers points out, his capacity to exercise self-control has to be considered in the light of his history that includes; trauma as child, learning difficulties, exposure to violence, exposure to drug use, and exposure to domestic violence as a child. These matters are fully set out in the report.

21. The damaging impacts of childhood neglect do not diminish over time, as the High Court noted in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. Kyriakoulis grew up in poverty without stability, in a “violent and chaotic household”.

22. It appears the relationship with his former partner had provided him with critical stability in his life. Critical to whether he is able to change his underlying drug abuse problem; it reasserted itself when the marriage broke down.

23. It is clear from the submissions of Mr McKenzie, counsel for the offender, and Ms Kerr, who prepared written submissions for the Director of Public Prosecutions and appeared on the first occasion, that there must be some accumulation as between the two charges, but care must be taken not to double-count matters. The aggravating feature, so far as the first and principal offence is concerned, is that it occurred in breach of the Apprehended Domestic Violence Order.

24. Reducing the risk of further reoffending on release is an important consideration. If the offender is supervised and assisted on parole, particularly with engagement in a suitable drug and alcohol program, for as long as possible it would benefit him and the community.

25. He has support in the community. He has somewhere to live. He has the capacity to work. He has shown, during the recent remand, some insight into his need for treatment for his controlling behaviour and exercising restraint.

26. Through his counsel, he submits that he is conscious of the need to progress slowly through the legal system if access to his children is ever to be granted again. Concerns about his children will be a trigger point that he has to deal with, because if he again put his own selfish concerns over the needs of his children it can only lead to breach of the court orders and/or parole conditions by further crime.

Synthesis

27. Sentences should operate to protect victims of domestic violence from future offending. Sentences should recognise the impact of the offending upon them.

28. Sentences should give offenders opportunities to change their behaviour. An offender cannot be removed from the community forever. They have to be returned to the community, and the sentence, particularly its minimum term, must be proportionate to the seriousness of what was done. If possible, offenders should be returned to the community in a better position than when they went in custody. Sentences should take a forward-looking approach and give the offender an opportunity to understand and appreciate what they have done. The signs are relatively good here that that can be done.

29. Nevertheless, there must be a further period in custody. That period reflects the guidance offered by the maximum penalty; here, 20 years: Crimes Act, s 112(2). Content also has to be given to the standard non-parole period of 5 years. But I do not start with that non-parole period or maximum and make proportional deductions from them, both are guides to the exercise of my discretion.

Orders

30. There will be an aggregate sentence. The sentence will commence on 9 April 2023 to reflect time served, less time in the community, and to give him some recognition to the time spent in the rehabilitation facility in quasi-custody.

• For the matter on a s 166 Criminal Procedure Act 1986 (NSW) certificate of Breach of the Domestic Violence Order, I indicate a sentence of 9 months’ imprisonment.

• For the s 112 offence, a sentence of 3 years with a non-parole period of 2 years is indicated.

31. The aggregate sentence will be 3 years and 4 months. The non‑parole period will be 2 years. It will start on 9 April 2023 making the offender eligible for consideration for a release to parole on 8 April 2025. The parole will be subject to an order of the State Parole Authority. They will only release the offender after they have considered issues of community safety. The parole period will be 1 year and 4 months. It will commence on 9 April 2025 and expire on 8 August 2026. The release date is 8 April 2025.

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Decision last updated: 22 July 2024