R v Validakis

[2020] NSWDC 915

District Court

New South Wales

Medium Neutral Citation:

R v Validakis [2020] NSWDC 915

Hearing dates:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence Appeal – The sentence appeal is dismissed.

All orders of the magistrate are confirmed. See [21]

Sentence - Aggregate sentence of 4 years with a non-parole period of 2 years. See [59]-[63]

Catchwords:

CRIME- Aggravated break enter knowing person present - assault

SENTENCE- Relevant factors on sentence e- multiple domestic violence offences - offences committed while subject to a suspended sentence and Community Corrections orders - offences in breach of domestic violence orders - accumulation and concurrence – totality principle - progress in custody- community protection – need for supervision in community on parole

APPEALS – to District Court from Local Court- sentence severity appeal - damage property by explosive device – stalk and intimidate domestic violence related

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Domestic and Personal Violence Act 2007

Criminal Procedure Act 1986

Cases Cited:

Attorney General’s Application (No 1 of 2002) (NSW) [2002] NSWCCA 581

Markarian v The Queen [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Clinch (1994) 72 CLR 301

R v Grube [2005] NSWCCA 140

R v MAK; R v MSK [2006] NSWCCA 318

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Thomas Validakis (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr R Steward (for the offender)

Solicitors:
M Russionello (for the offender)
Ms J Azad (for the Director of Public Prosecutions)

File Number(s):

2019/00113366; 2020/00017166

sentence – ex tempore revised

Introduction

1. Thomas Validakis was born in April 1989. In 2014 he was before the Local Court for matters involving breach of domestic violence orders and offences of use of a carriage service to harass or intimidate. In February 2018 I sentenced him to a term of imprisonment of one year and three months for supplying drugs. I suspended the execution of that sentence on him giving certain undertakings; one of which was to be of good behaviour and not commit further offences.

2. In August 2018 he entered a relationship with a young woman. Soon afterwards he started a relationship with another young woman. After his breakup with the first young woman he engaged in a series of acts toward her, which have been properly described by the Crown Prosecutor in these matters as showing a criminal obsession with her and their breakup. Those acts culminated in Validakis setting off an explosive device at her apartment block in North Wollongong on 5 November 2018.

3. He was subsequently charged intentionally or recklessly damaging property by explosion, a domestic violence-related offence: s 195(1)(b) Crimes Act 1900. And intimidating her with intent to cause her physical harm, another domestic violence-related offence: s 13(1) Crimes (Domestic and Personal Violence Act 2007. The matters were defended. They took some time to progress in the Local Court. He was found guilty on14 September 2020. He was sentenced on 30 September 2020 to a total fixed term of 3 years imprisonment.

4. In September 2019 he broke up with the second young woman. He was charged and eventually sentenced for offences of intimidating her and damaging property. On 25 September 2019 he was admitted to bail. An Apprehended Domestic Violence Order with strict conditions was placed upon him.

5. On 28 December 2019 there were further offences involving stalking and intimidating the second complainant and contravening the Apprehended Violence Orders relating to her. All the Local Court matters relating to the second complainant were dealt with in the Local Court on 6 August 2019 with the impositions of Community Correction Orders.

6. In January 2020, between the 14th and the 16th, he committed a series of domestic violence related offences against the second complainant. They ended with his arrest on 17 January 2020. He has been in custody since that date.

7. On 14 September 2020 he was convicted of the damage by explosive and intimidation counts relating to the first complainant. As a consequence of that matter he was in breach of the suspended sentence that I imposed upon him. The matter was put before me as a matter of urgency and on 25 September 2020 as a result of that conviction I breached his suspended sentence. I confirmed the sentence of one year and three months. I imposed a non‑parole period of six months to date from 17 January 2020 to expire on 16 July 2020.

8. The relatively short non‑parole period was an expression of my judicial opinion about to the minimum period that should be served to meet the purposes of sentencing for that particular offence. At the time it was anticipated that the Magistrate would then, in the exercise of her discretion, accumulate her sentences for the offences against the first complainant upon it. As expected, that is what her Honour did.

9. On 30 September 2020 her Honour sentenced Validakis to two years imprisonment for the damage property by explosion offence and ordered that he pay compensation of $24,622.64. In relation to the intimidation offence, she imposed a sentence of two years imprisonment. It was made partly cumulative - commencing on 16 July 2021 and expiring on 15 July 2023. The total sentence was three years. It was a fixed term so no non-parole period was set.

10. Her Honour’s sentence findings of fact in relation to the convictions and findings in relation to sentence are before me. They are thorough and comprehensive.

11. Today Validakis put before me an appeal against the severity of the sentences imposed by her Honour. He also adheres to the guilty pleas entered in the Local Court for the January domestic violence offences relating to the second complainant.

12. In addition to the appeal matters. There are 13 offences, two be dealt with today. Two are for sentence in this Court’s original jurisdiction. They are;

1. Aggravated break and enter and commit serious indictable offence: s 112 Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment. For an offence which falls in the middle of the range, taking into account only objective features it has a standard non‑parole period of five years. The circumstance of aggravation is that he knew someone was present when he broke into the premises. And

2. Common assault: s 61 Crimes Act 1900. It carries a maximum penalty of two years imprisonment

13. When I sentence Validakis for the aggravated break, enter and steal offence, he asks that I take into account on a Criminal Procedure Act 1986 Form 1; three intimidation offences, a larceny offence, an offence of recklessly destroy or damage property: respectively s 13(1) Crimes (Domestic and Personal Violence Act 2007; s 117 Crimes Act 1900 and s195 Crimes Act 1900.

14. Also for sentence today are four summary matters on a s 166 Criminal Procedure Act certificate for four breaches of Crimes (Personal and Domestic Violence) Act orders put in place on 25 September 2019 in an attempt to protect the second complainant. Validakis has admitted his guilt to those matters and it is appropriate I sentence him.

The sentence appeal

15. I have to give my own independent consideration to what should be an appropriate sentence after consideration of the seriousness of the offences. I do so having had full regard to the findings of facts made by her Honour. The s 13 offence related to a considerable period of obsessive intimidatory and stalking behaviour towards a former partner; the first complainant. A number of particular acts are detailed. Some are uncharged offences. He is not to be sentenced for them. My focus is on the intimidatory aspects of his behaviour. It is clear, because her Honour referred to the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, that some of the matters that were taken into account as relevant features relating to the consequences and motivates of the explosion offence overlapped with those of the intimidation offence.

16. It is also clear from the nature of the explosive device and the dramatic damaging consequence of that device that it was an offence of considerable objective seriousness. It did more than damage property it put people, including the first complainant and others in that unit block, at considerable risk. Although it appears fireworks were used, such was the nature of the device that air, dust or particles ignited with considerable force.

17. The offences were particularly serious examples of their type and, frankly, would ordinarily be disposed of in this Court. Both the explosion offence and the intimidation and the extent of each require individual penalties that exceed the statutory jurisdiction of the Local Court - two years. A 195(1) Crimes Act offence carries a maximum of ten years imprisonment and s 13 (1) Crimes (Domestic and Personal Violence) Act offence five years.

18. Had those two matters stood alone, I might, in the exercise of my discretion, have intervened. To allow for a period of parole so as to ensure the Appellant’s transition back into the community was supervised and managed by Community Corrections. It would not have been a long period, as a critical issue for any sentencing judge is the need to fix an appropriate minimum time that must be spent in custody. This minimum should reflect the seriousness of the offence and the other purposes of sentencing. It has to be balanced with the need for an offender/appellant who has spent a period in custody to receive assistance, supervision and monitoring so that they can be released into the community adjust to normal community life. It is commonly reflected in the fixing of a parole period and if required a finding of special circumstances: s 44 Crimes (Sentencing Procedure) Act 1999.

19. I now have to sentence this offender for matters which is it agreed must be accumulated upon the Local Court sentences under appeal. It is agreed that the proper application of the totality principle, to which I will later refer, requires some moderation of that total sentences. But that finding is not dependant on the length of the sentences the subject of appeal as I can start my sentences at any time during the currency of the sentences the subject of appeal. As the offender/appellant will not be released at the expiry of the Local Court sentences under appeal how they might have been structured had they stood alone is no longer an issue that I need to spend time on.

20. In making my assessment as to the appropriate penalty for the matters under appeal, I take into account the principle applying to domestic violence offence sentences, to which I will later refer. The matters were contested so there is no scope for a reduction for the utilitarian value of any plea of guilty.

21. Given the findings of fact made by her Honour, the seriousness of those offences and the complete absence of any acceptance of responsibility, remorse or even regret and the statutory limitations on the jurisdiction of the Local Court, the fixed term sentences imposed by her Honour were the minimum that the offender could have expected. I dismiss those appeals and confirm the sentences imposed and the compensation order made.

Sentence Proceedings - Sentencing Principles

Totality, accumulation and concurrence

22. I will be imposing an aggregate sentence. It will be made partially cumulative on the existing terms being served. The appeal matters to which I have just referred require that, when I sentence the offender for the offences that are now before me for sentence, I structure this sentence in a way that takes into account the principle of totality. Although an aggregate sentence will be delivered, I am required to indicate an appropriate sentence for each offence and structure the sentences such that the overall sentence to be served for the matters relating to January 2020, and the earlier matters, are just and appropriate to the totality of all the offender’s crimes: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70.

23. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending, particularly against multiple victims and particularly where those defences are discrete and separate: R v MAK; R v MSK [2006] NSWCCA 318 at [18]. However, the totality principle recognises that sometimes, if an appropriate punishment is fixed for each offence and the others are simply added one on top of the other, an unduly harsh overall sentence might result. The principle applies where sentences are accumulated on sentences imposed by the same judge or by other courts.

24. The impact of accumulated sentences on an offender is not linear. The longer a person spends in gaol the greater the harshness of the sentence. For example; a sentence of two years will have a greater impact on an offender than a sentence of one year, so far as the punitive aspects of the sentence are concerned: R v Clinch (1994) 72 CLR 301.

25. When I come to sentence for the matters involving the second complainant, I also, as the Magistrate did in the appeal matter, have to take into account the principles set out in Pearce v The Queen:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common…the punishment to be exacted should reflect what an offender has done…To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.” At [40].

26. The various charges for sentence do have a number of common elements and also common factors. Significantly, a number of them have so many common factors that the sentence for one can incorporate the criminality of the other. There remains, however, because of the nature of the offending (particularly the breach matters) the period of time over which the offences evolved also some need for separate punishment.

Form 1

27. There are some charges for sentence and some on a Form 1. The matters on the Form 1 do operate to increase the sentence that I will impose for the break and enter matter. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application (No 1 of 2002) (NSW) [2002] NSWCCA 581.

28. I do not impose a separate penalty for the Form 1 offences. Rather, in determining the appropriate penalty for the break and enter offence, I take these matters into account as part of the instinctive synthesis approach to sentence explained by McHugh J in Markarian v The Queen [2005] HCA 25 at [51]-[54]. Sometimes that increase can be substantial, as was pointed in in Attorney General’s Application (No 1 of 2002) at [18] and R v Grube [2005] NSWCCA 140. I must, however, take care not to double count and thus double punish matters where the facts for the Form 1 offences have informed my assessment of the objective seriousness of the offence for sentence.

Criminal history

29. When I come to sentence I do not ignore the offender’s criminal history. It is relevant. It indicates a continuing disobedience towards the law. He broke the promise inherent in the suspended sentence order I made and did not respect the leniency extended to him when I sentenced him for the supply offence. His prior criminal acts show persistence in offending against women with whom he had a relationship. His history indicates that the offending against the second complainant was not an uncharacteristic aberration. While his prior history cannot result in a sentence that is disproportionate to the gravity of the offences for sentence by today, a more severe penalty with additional focus on retribution, deterrence and the protection of the community is required: Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14.

Facts for Sentence

30. The matters for sentence commenced with what appears to be a chance meeting with the second complainant on the evening of 14 January 2020. That meeting involved a technical breach of the earlier Apprehended Domestic Violence Order. Had it stood alone, that charge would not have resulted in a custodial sentence. But it did not stand alone. After the chance meeting to two separated. The second complainant then saw the offender in his car. He drove towards her, got out of the car and chased her. She asked a passer‑by to contact the police. At that point the offender walked away.

31. She went home but between 9 and 9.30PM that evening she heard a noise. It was the offender. She looked outside and saw him driving his car into her unit complex. She saw him come to her front door. She was fearful and she put her weight against the door. He started banging on it. She screamed at him, “Go away. I’m going to call the police…Please, please go away.” The offender did not go away. He kicked the screen door a number of times with some force. He yelled out, asking the second complainant to give him her phone. He kicked the door in, causing the handle to break. The force of his entry caused her to fall to the ground. He entered to unit: That is the break and enter offence and the damage property offence on the Form 1.

32. She sat on her lounge. The offender walked towards her. She threw her phone at him, saying, “Take my phone. Just take it. Don’t hurt me.” She tried to protect herself but he punched her to the head with a closed fist a number of times. She was also kicked in the leg and buttocks: the common assault offence for sentence.

33. She told him she was scared. He replied, “You have no reason to be scared of me.” He took her phone and left the unit: the larceny offence on the Form 1. The police arrived shortly afterwards. They notice the bolt from the front door was missing and that the screen door was damaged: the damage property offence on the Form 1.

34. The second complainant spent two days in hospital. I do not have a medical certificate saying why she was there. Although the assault may not have caused an injuries sufficient, of itself, to require hospitalisation it is readily apparently that the whole incident would have been extremely distressing to her psychologically. I can easily understand why she stayed in hospital until 16 January.

35. On 17 January she was at home. A friend was also present. The offender came again to her home. He kicked at the front door and yelled out, “You’re dead.” He walked to a window and started knocking at it. The second complainant was again fearful he was going to enter. The offender left, although he did not go far. Those matters are the contravene and the stalk and intimidate for sentence on the s 166 certificate. Police were soon on the scene.

36. At 9.40 that evening, after her friend had left, the offender again came to her house. She urged him, “Please go away,” and she pushed the lounge up to the door. He asked her to open up. She said, “No, no way.” He again went to the window, asking her to open up. She said, “I’m calling the police.” He hit the window, causing part of the window to break. Those offences are a contravention of the apprehended violence order for sentence pursuant to the s 166 certificate with another stalk/intimidate charge on the Form 1.

37. Triple-0 was called again. The facts reveal the distress shown by the complainant. Several neighbours witnessed this incident. When her friend returned from a shopping trip, the offender fled.

38. The offender was arrested on 17 January 2020. He has been in custody ever since.

Objective Seriousness

Apprehended violence offences

39. There are four breach of apprehended domestic violence matters on the s 166 certificate. To breach an apprehended violence order shows a disregard for the orders of the Court. Putting aside for a moment the distress breaches can cause a complainant, such conduct has the practical effect of undermining the authority of the courts and the protection that such orders are meant to extend for those at deemed at risk of harm.

39. If the authority of the courts is simply ignored, as Validakis did, the law and the courts are diminished and the courts’ capacity to protect vulnerable people is impeded. Any defiance of a court order is treated as serious and requires separate and discrete punishment.

40. All of the offences before me are domestic violence offences. I do not believe the courts have ever treated such matters as lacking in seriousness. But at times in the past some members of the police force and some members of the community have held the belief that a domestic offence was less serious than any other category of offences; a matter noted by the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48.

41. The courts do recognise the special dynamics of domestic violence offences and the harm they can cause the victim and the community. As is clear from the facts I have recounted, the second complainant was personally targeted and the offences were part of a larger picture of physical and mental violence. During that period the offender attempted to, and it appears succeeded, despite the wishes of the second complainant, in exercising power and control over her. Too often perpetrators believe what they do is justified or can be excused; sometimes they believe that they are the true victim, that they are the ones who are wronged! As a consequence a victim of domestic violence may never feel safe. I am dealing with the sentence matter here but the same principles apply to the earlier matter and the earlier complainant: see [15] above.

42. Courts must, and will, denounce such conduct. Courts must, and will recognise the harm done to victims of such offences and the community in general. In doing so, as here, we often imprison offenders. The problem that creates is that, while a gaol term removes the domestic violence offenders from the community it can provide only temporary protection. Any respite for victims and the community from the offending is short term. While they are in gaol domestic violence offenders are housed in a violent environment with other violent offenders. There they can have their misogynist and violent views reinforced not addressed. This offender may learn something from his time in custody but he can only be removed from the community for a period

43. Here the fear of gaol and the fear of court retribution did not deter this offender. If he is not to reoffend he will need assistance in gaol and in the community in adjusting to normal community life.

Special Circumstances

45. It does not diminish the seriousness of his offending but a finding of special circumstances will be made. If the community is to be protected from further offences efforts should be made to ensure that the offender is assisted and supervised for as long as possible while he is in the community. The accumulation of the aggregate sentence on the other matters also requires a finding of special circumstances so that there can be an appropriate ratio of the parole period to the total period of imprisonment that started on 17 January 2020.

Other guidance

46. In formulating the appropriate sentence, and in the exercise of my sentencing discretion, I have had regard to the maximum penalties and, here, the fact that there is a standard non‑parole period for the break and enter offence. While serious, as Mr Steward notes in his written submissions, the objective circumstances of this entry put this matter below that which would call for the imposition of the standard non‑parole period. In so finding note the aggravating circumstance pleaded is one of knowing a person was there, the offender’s reason for entry, his mode of entry and the that it was a relatively brief incident.

47. I focus, taking the guidance of the parole period and the maximum penalty, on what was done but I must synthesise all relevant factors, including as I noted, the matters on the Form 1 and my sentence for what occurred after the entry - the common assault.

Submissions

48. I am indebted to both counsel for their comprehensive oral and written submissions. Given the hour I will not go through them. They both addressed all of the relevant matters that which I have sought to synthesise.

Gaol history

49. The offender’s gaol discipline record since he came into custody was raised in discussion. There are a number of prison disciplinary matters. That apparent disobedience stands in sharp distinction, to the other material from the gaol, part of Exhibit 1, that indicates that the offender has engaged in a number of courses, is working and is seeking to use his time in custody in an effort to change; his attitudes to women, his attitudes to the community and his attitudes to offending.

50. The offender will not be released to parole until and unless the State Parole Authority forms a view that is in the interests of the safety of the community to release him: s135 Crimes (Administration of Sentences) Act 1999. If he does not continue to engage in courses or if he continues to offend while in custody, he may not get parole and may end up serving the balance of the sentence. It is a matter for him.

51. I have received a comprehensive Sentencing Assessment Report. It sets out his background. It is clear from all the material before me that the offender has a significant problem with the drug methylamphetamine.

52. That fact alone does not mitigate his offending, in any sense. At best, it helps me understand why he persisted in irrational behaviour against his both his ex- girlfriends. Particularly in the matters for sentence in relation to the second complainant, it may help explain why he fell into a rage. To repeat that does not excuse what he did. The report notes that the offences, and those I have taken into account, were committed subject to not just my order but also bail conditions and the Apprehended Domestic Violence Order. The other history set out is, with respect, scant, but I note he does have some family support.

53. He has contact with his family and the child, who was born by the second complainant since he went into custody. Her goodwill in maintaining some contact between the child and her father is to be commended but I do not regard that as an expression of forgiveness; just a recognition that a child should know their father.

54. He reports a willingness to engage in intervention. He has engaged in intervention. He spoke of regret and remorse. And I accept he is now regretful but I would need more to have any confidence that he truly understands his offending behaviour.

55. To the contrary, as Ms Azad, who appears for the Director of Public Prosecutions, points out, the report indicates he is still minimising his behaviour, blaming his victim and denying the severity of the assault to which he has entered a plea of guilty. There was chaos in his life when he committed these offences. It is understood that there are matters that cause a person to become addicted to illicit drugs, but that is no excuse for what he did. It does, however, mean that I can, and should, allow a period where, if he demonstrates he is safe to be released into the community, he be supervised and assisted as much as possible while he is serving his parole period.

56. A supervision plan can be put in place. It will involve psychological counselling and practical interventions. But in making my finding of special circumstances and allowing his release to the community, I do so, guardedly. What Validakis has to understand is that, after he serves what I am sure he will regard as a lengthy period of custody, should he revert to the same form of behaviour to other women in our community or his former victims, the Court’s only recourse will be to remove him from the community for as long as possible.

57. I have to synthesise all these matters into indicted sentences and an aggregate sentence term and then structure the sentence so that it meets meet the purposes of sentencing.

58. The formal orders of the Court require convictions and my taking into account the matters on the form 1 for the Break and enter offence’s sentence.

Orders

59. In relation to the aggravated break, enter and steal, taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of 3 years with a non-parole period of 2 years.

60. In relation to the Common assault (DV) I indicate a sentence of 1 year 2 months.

61. For the first s166 matter, Contravene prohibition/restriction in AVO (Domestic), I indicate a sentence of one month. For each of the three remaining s 166 matters I indicate sentences of nine months.

62. Each of those sentences have a reduction of 25% to reflect the utilitarian value of the early pleas of guilty. I sought, when formulating the aggregate sentence, not to erode the benefit of those reductions. They are all recorded a domestic violence offences.

63. There will be an aggregate sentence of four years. That sentence will commence on 17 July 2022; that is, allowing six months for the drug matter, and two years for the appeal. There will be a non‑parole period of two years, which means that the offender will be eligible for consideration for release to parole on 16 July 2024. There will be a parole period of two years, commencing on 17 July 2024 and expiring on 16 July 2026, reflecting the finding of special circumstances both for accumulation and for the matters I have set out in relation to his need for supervision. For transparency I note have allowed approximately 70% of the all his sentences to be spent in custody, with 30% in the community. The figures are not meant to be strictly arithmetical.

64. The bottom line, Mr Validakis is six months for the drug matter, two years that must be served for the Local Court matters, and then the sentence of four years, two years in custody, two years in the community for the matters for sentence involving the second complainant. I think I have covered all the matters.

65. I am told that in relation to the Local Court convictions the subject of the severity appeal matters, there was a final AVO made that expires tomorrow. I will make a further domestic violence order for five years from today’s date in the same terms as the made on 13/12/2018 at Wollongong Local Court.

66. Mr Russoniello will explain that sentence to you. Thank you.

AUDIO VISUAL LINK CONCLUDED AT 12.54PM

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Decision last updated: 23 June 2021