R v Porceddu - [2022] NSWDC 687

District Court

New South Wales

Medium Neutral Citation: R v Porceddu [2022] NSWDC 687
Hearing dates: 27 October 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Reckless grievous bodily harm (DV): Sentenced to a term of imprisonment of 3 years 9 months with a non- parole period of 2 years 3 months.
Contravene prohibition/restriction in AVO (Domestic):
Sentenced to a fixed term of imprisonment of 4 months.

Catchwords:
CRIME – Reckless grievous bodily harm (DV) Contravene prohibition/restriction in AVO (Domestic)
SENTENCING - Relevant factors on sentence – attack on partner with meat cleaver - plea of guilty - breach of ADVO - victim impact-consideration of offenders moral culpability - impact of trauma - prospects for rehabilitation

Legislation Cited:
Crimes Act 1900
Crimes(Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
Muldrock v The Queen (2011) 244 CLR 120: [2011] HCA 39
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Owen v R [2022] NSWCCA 214
Paterson v R [2021] NSWCCA 273
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Simon Peter Porceddu (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Mr N Ashby, Solicitor Advocate, Legal Aid NSW (for the offender)
Ms T Collison (for Director of Public Prosecutions)

File Number(s): 2022/00022464

SENTENCE – EX TEMPORE REVISED

Introduction

Simon Peter Porceddu was born in 1976. He is now 47 years old. The complainant was at the time of the offence 39 years old. The two were living together in a van parked at a beach in Northern Wollongong. They had been in an intimate domestic relationship for about three years.
On 27 July 2021, they had an argument. It was heard by members of the public. Police were called. The complainant said she had been threatened with an axe. Consequently, an Apprehended Violence Order was placed on Porceddu. That order was designed to bring home to him the need to respect his partner and not behave in a threatening manner towards her.

Facts For Sentence

On 25 January 2022, the complainant was visiting friends at their home in northern Wollongong. Soon after the offender arrived. Earlier that day he had been involved in an affray incident in Wollongong. He was intoxicated. The two argued and at times he stood over the complainant, who cowered away from him. The complainant walked away, but he followed her. They continued to argue. She turned her back to him, and as she did so, he struck her right shoulder blade with a meat cleaver. This caused her immediate pain. Understandably scared, she returned to the friend’s home she had just left asking, "…why did he do it to me?"
Ambulance and police attended. The complainant initially refused treatment and refused to tell police what had happened. But she did go…

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 Porceddu

Details

AGLC: R v Porceddu [2022] NSWDC 687
Case: [2022] NSWDC 687
Decision Date: 27 October 2022

CaseChat Overview and Summary

In the matter of the Crown versus Porceddu, the defendant was brought before the court to address two charges: one of reckless grievous bodily harm in a domestic violence context, and another for contravening a prohibition/restriction in an Apprehended Domestic Violence Order (ADVO). The defendant, in the context of a domestic dispute, attacked his partner with a meat cleaver. He pleaded guilty to both charges, and the court was tasked with determining an appropriate sentence that considered both the severity of the offence and the defendant's personal circumstances.

The legal issues before the court involved assessing the severity of the reckless grievous bodily harm inflicted on the defendant's partner, the breach of the ADVO, and the mitigating factors such as the defendant's guilty plea and the impact of trauma on his actions. The court also had to consider the moral culpability of the defendant, the impact on the victim, and the prospects for the defendant's rehabilitation.

In delivering the judgment, the court emphasised the seriousness of the attack, noting the use of a meat cleaver in a domestic setting. Despite the defendant's guilty plea and expressions of remorse, the court found that the attack warranted a significant custodial sentence. The court also took into account the breach of the ADVO, which was intended to protect the victim, thereby aggravating the offence. The sentencing reflected the need to protect the community and deter similar conduct in the future. The court ultimately sentenced the defendant to a term of imprisonment of 3 years 9 months for the grievous bodily harm, with a non-parole period of 2 years 3 months. For the breach of the ADVO, the defendant was sentenced to a fixed term of imprisonment of 4 months.

Orders

Orders of the court

Reckless grievous bodily harm (DV): Sentenced to a term of imprisonment of 3 years 9 months with a non- parole period of 2 years 3 months.

Contravene prohibition/restriction in AVO (Domestic):

Sentenced to a fixed term of imprisonment of 4 months.

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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Medium Neutral Citation:	R v Porceddu [2022] NSWDC 687
Hearing dates:	27 October 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Reckless grievous bodily harm (DV): Sentenced to a term of imprisonment of 3 years 9 months with a non- parole period of 2 years 3 months. Contravene prohibition/restriction in AVO (Domestic): Sentenced to a fixed term of imprisonment of 4 months.
Catchwords:	CRIME – Reckless grievous bodily harm (DV) Contravene prohibition/restriction in AVO (Domestic) SENTENCING - Relevant factors on sentence – attack on partner with meat cleaver - plea of guilty - breach of ADVO - victim impact-consideration of offenders moral culpability - impact of trauma - prospects for rehabilitation
Legislation Cited:	Crimes Act 1900 Crimes(Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 Muldrock v The Queen (2011) 244 CLR 120: [2011] HCA 39 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Owen v R [2022] NSWCCA 214 Paterson v R [2021] NSWCCA 273 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Simon Peter Porceddu (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr N Ashby, Solicitor Advocate, Legal Aid NSW (for the offender) Ms T Collison (for Director of Public Prosecutions)
File Number(s):	2022/00022464