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 1. 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. 2. 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 1. 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?" 2. Ambulance and police attended. The complainant initially refused treatment and refused to tell police what had happened. But she did go to Wollongong Hospital, and eventually she did speak to police. She had a 15-centimetre laceration over her right shoulder blade. The injury penetrated through the skin, through the subcutaneous layer muscle, reaching the bone. She underwent surgery the following day. 3. On 26 January 2022, the offender was arrested near his van. He was asked by Detective Jordans, "What happened last night?" He replied, "She pushes my buttons". The detective said, "Had you been drinking?" The offender replied, "Yes, I shouldn't drink. I called to see if she was all right." 4. Porceddu entered a plea of guilty in the Local Court to two offences; reckless grievance, bodily harm, s 35(2) Crimes Act 1900, and contravene prohibition in an Apprehended Domestic Violence Order, s 14(1), Crimes (Domestic and Personal Violence) Act 2007. His early plea requires that I reduce the otherwise appropriate sentences by 25% to take account of the utilitarian value of that plea: Crimes (Sentencing Procedure) Act 1999 . The plea has other value, that I will consider generally. Objective seriousness 1. I am required to identify all the factors that are relevant to the sentence, discuss their significance, and then make a value judgment as to what is the appropriate sentence, given all the factors of the case: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; 244 CLR 120 citing Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5. 2. Sentencing judges had been told that they are not required to identify the extent to which the seriousness of the offence in question differs from some abstract notional or theoretical offence: Tepania v R [2018] NSWCCA 247. In some cases, an attempt to locate the objective seriousness offence on a hypothetical range of seriousness can be unhelpful: Paterson v R [2021] NSWCCA 273 at [32] to [33]; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]. 3. I am now told, Owen v R [2022] NSWCCA 214, that where the objective seriousness of the offence forms a significant part of the evaluation of what would be an appropriate sentence, I am obliged to resolve any disputed issue about where a particular offence fell on the spectrum of objective seriousness. The Court of Criminal Appeal held in Owen that it was thus necessary I express a finding about the relative seriousness of the offending and where it falls in the range of objective seriousness for offences of that kind. I will accept that guidance, even though, as other judges have noted, placing criminal conduct within a gradated scale of objective seriousness involves a high level of imprecision about which judicial opinions can differ. 4. The breach of the Apprehended Domestic Violence is, as with all such breaches, treated seriously. It must be separately punished. It is separately punished because the offender must understand, and the community must understand, that such orders are there to protect and prevent and Apprehended Domestic Violence Orders must be respected. 5. I sentence for the fact of the breach. The seriousness of the actual breach, however, is a matter that informs and is coextensive with the objective seriousness of the grievous bodily harm offence. I must be careful not to double count such matters. 6. Despite the fact he was on the Apprehended Violence Order, the offender struck his partner while her back was turned to him, with sufficient force to cause the injury requiring surgery. Nothing provoked the assault; a weapon was used; and the blow was sufficiently violent or forceful to cause injuries penetrating down to the underlying bone. 7. The offence, as would be expected, has left both a physical scar and an emotional scar; to which I will later refer. There was a single blow. It was not repeated. 8. In submissions, Mr Ashby, counsel for the offender, says it was non-life threatening and that I should sentencing on the basis that the blow was reckless. But it is accepted that the offender was affected by alcohol and angry. His alcohol use cannot excuse his behaviour. In fact, it enhanced the risks because he was not in full control of his faculties, and it was a moving, mobile, situation. The blow could have landed in a more vulnerable part of the complainant's body, causing even more serious injuries. 9. Ms Collison, solicitor, who appears for the Director of Public Prosecutions, submits that the offence is above the mid-range. Mr Ashby here submits that it falls no higher than midrange. 10. The offence was a serious one against a woman who the offender professed to love, committed in breach of an Apprehended Violence Order. It was a single blow and more by good luck than good management, caused no dismemberment or the sort of extremely serious injuries that could and are, from my experience, often inflicted by such a weapon. 11. While the nature of a weapon is obviously taken into account, one significant factor in assessing objective seriousness is the extent of the physical injury occasioned. And for those reasons, while not in any way diminishing the blow, the pain and the lasting scar, this matter could not be regarded as falling above the middle of the range. I accept Mr Ashby's submission in that regard. Maximum Penalties 1. In formulating an appropriate sentence, I take guidance from the maximum penalty for the s 35(2) offence of ten years. It also carries a standard non-parole period of 4 years. That standard non-parole period has to be given content. It directs my attention to an offence taking into account only objective factors, which falls in the middle of the range. 2. I also have to take into account the maximum penalty for contravening the Apprehended Domestic Violence Order, which is two years. Criminal Record 1. The offender has a criminal record that does not entitle him to leniency. There are prior offences for violence, including domestic violence. There are also a number of significant gaps in that record indicating he can lead a law abiding life. I take into account those gaps. There are no offences for anything close to the seriousness of this matter. Victim Impact 1. The complainant in this matter came to court. She is still obviously distressed by what occurred. I was asked to read onto the public record her Victim Impact Statement. Such statements provide perhaps the only opportunity a victim has to draw to the Courts, the communities, and in particular the offenders, notice the impact of such matters. She tells me, and I accept, that since the event she suffers panic attacks and anxiety issues and anger issues. She has flashbacks and nightmares. She has a very visible scar on her right shoulder. 2. She has struggled, as she did at the time, to find housing, employment, security in her life and mental stability. I do not underestimate the impact of an injury such as this - being struck from behind with a meat cleaver - on a person's capacity to feel stable and safe in the community. She requires as much assistance as can be provided to her. 3. She says her interactions with others have changed and her social life has been impacted. She has problems of trust, panic attacks, and flashbacks. She has become more withdrawn, and she says "My personality has changed so much I am no longer the person I was before the crime." 4. One purpose of sentencing is to vindicate so far as possible the victim of crimes of violence and to take into account by infliction of punishment the harm that they suffered. I will do so. Subjective features 1. The offender has been in custody since 26 January. This sentence will date from that date. 2. When he was admitted, for what is his first gaol sentence, there is gaol file a note saying, "Self-harm now clear. Depression and anxiety". He tells me that he has been locked down for almost a third of the time. And by lockdown, I mean, effectively solitary confinement or confined with others in a cell. Prison is meant to punish by deprivation of liberty, but the restrictions that are necessary to prevent the spread of COVID in the gaol has meant that prisoners who have no say about how they are to manage their lives, suffer significantly more than others in the community. 3. It takes little imagination to appreciate the additional impact of imprisonment on someone who is not just locked in a cell for 12 hours a day, but for day after day after day, with no real control over when they would get out. They are matters I do take into account. 4. I have a reference which says that when Porceddu gets out of gaol, work might be available to him. I have the benefit of a comprehensive report from Ms Brann, a forensic psychologist. 5. The offender gave evidence. He also wrote a letter to me. He expresses his regret and apologises and says he is deeply sorry. I am prepared to accept that while sober, those are genuine emotions, but they were not reflected in his behaviour toward the complainant. And, I am quite sure that after the incident that led to the domestic violence order, he probably made similar promises to her. But alcohol, anger, jealousy are matters that mean that such promises have to be viewed with a degree of caution. 6. Ms Brann sets out his personal history, which is uncontroversial and supported by the evidence. His schooling was disrupted. There was some parental conflict, and it appears that while loved by his parents, few boundaries were set. There is a report, which I accept, supported by evidence, that he complained of sexual abuse when he was six years old. While the police were contacted, no action was taken. At various times he has raised the matter with professionals who have provided some assistance to him, but it has never been dealt with. He still has little actual insight into the impact of that incident on him. 7. His history reflects what, Ms Brann says, is "maladaptive" behaviour. He was often transient and homeless. As he grew older, rather than maturing, his underlying problems led to anti-social beliefs and long periods of unemployment. He has few skills and no tickets or qualifications. There is a history of head injuries, and Ms Brann says the possibility of a traumatic brain injury must be investigated. 8. He took up the abuse of alcohol and illicit drugs when too young to make rational choices. He has been a chronic cannabis user and over the last few years, he has abused methylamphetamine and alcohol, with the resulting harm to himself and his relationships. 9. Porceddu has completed a MERIT program. He has problems with gambling. He says he wants to stay abstinent, but that is a promise easily made, and hard to keep. Ms Brann sets out history of his relationship and notes for a period, he was able to lead a law-abiding life in the community. 10. He told Ms Brann about his own sexual desires and activities. There is an indication in the reports that he does not see the double standard involved when acted out of perceived jealousy and anger toward his partner on this occasion. 11. He has two children. Both have with disabilities, but for many years he has not been able to have contact with them or provide any support to them. 12. When these events occurred, his life reached a stage where he was living in a van at a beach. I am prepared to accept that he has some insight into the connection between his drug and alcohol use and violent offending and that he is motivated to engage in treatment. 13. Ms Brann says he has features indicating; an antisocial personality disorder, adult ADHD, and trauma symptoms relating from his childhood sexual abuse. She says there is a well documented link between substance abuse, low mood, and such abuse. She indicates he still has significant deficits in global functioning. She notes: "He requires psychological treatment to address his history of violence, substance abuse issues, and provide opportunities to receive support dealing with childhood sexual abuse. He will also require support managing his risk of relapse to substances and would benefit from significant case management." 1. I will have a copy of her report sent to the gaol with the warrant. Synthesis 1. Porceddu's background has impacted on his development since childhood. He has suffered the impacts of trauma. This means he has fewer resources to deal with the problems of living an ordinary life in the community, than those who did not suffer such disadvantages. 2. This does not automatically mean that he has less moral culpability than the person who did not suffer that trauma or did not have those disadvantages. But he is entitled to a degree of sensitivity when I come to assessing; him as a person and the penalty I must impose. It is not a question of extending mercy, although that concept should never be put aside, it is a question of my rationally assessing the impact of his background on him and his moral culpability. 3. I must, in a sense, compare his background with a person who did not have those disadvantages. I must give proper effect to the impact of trauma on him, particularly the child sexual abuse. Such impacts are increasingly brought to the attention of Courts, primarily regarding victims of crime, but also, as it now becoming clear for those who suffered such abuse in the family and then later offend. 4. He is now in his mid-40s. This is his first very significant offence. There are, however, entrenched features in his background that increase the risk of future offending, if he is not given support and assistance. As Ms Brann suggests he requires assistance in moderating that risk. 5. Ms Collison makes the obvious point that past behaviour is a good indication of future behaviour. And, while he has in the past been told he needs help, for various reasons, he has not taken it up or it has not been offered to him. 6. At the moment the Court can only make an assumption that with age, with maturity, with abstinence, he will take up any help that is offered to him. Mr Ashby notes that this was a spontaneous and unplanned offence. He submits that if - and the word "if" is important - appropriate support and services are provided, particularly the Violent Offender Treatment Program, then I could have some confidence, given his evidence today and given the matters set out by Ms Brann, find that this particularly serious offence was unlikely to be repeated. 7. Mr Ashby asked that I make a finding of special circumstances. I will make that finding. In doing so I note; the underlying problems set out in Ms Brann's report; this is his first time in custody, he will serve it during the pandemic subject to the restrictions. He will need help dealing with his entrenched maladaptive responses to trauma; which have led to his very long-term antisocial activity and alcohol and illicit substance abuse. Rehabilitation will require time and support. It is probably best managed in the community, rather than in custody. Accumulation is also a factor that goes to special circumstances. 8. That said, the minimum time he must spend in custody should reflect the seriousness of what he did and all the other purposes of sentencing. Importantly, any release will be subject to an order of the State Parole Authority. 9. I return briefly to objective seriousness of the offences. These were domestic violence offences. Underlying what occurred was the offender's belief that what he did was justified by unsupported allegations about the complainant's controlling behaviour. What he did has left his victim with fear and physical and emotional scars. As she said, she may never truly feel safe. 10. That said, while gaoling someone punishes and removes them from the community for a period, they must be returned to it. Courts must take into account the principle of general deterrence, but as the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 made clear, for matters such as this - involving spontaneous violent emotional outbursts, general deterrence principles play little role in preventing such crimes. 11. The High Court however also made these other important points. The proper role of the criminal law is not limited to the utilitarian value. It would be wrong to accept that the victim of violence in a domestic context is somehow less in need of deserving of protection and vindication than other victims. Courts have an obligation; to vindicate the dignity of a victim of violence to express the community's disapproval of that offending and to afford such protection as can be afforded to the vulnerable against repetition. 12. As the agreed facts make plain this was a serious offence, involving totally unacceptable behaviour, and therefore, the offender must be removed from the community. But he must also be returned to the community. In the past, for short periods, he has demonstrated that he can lead to normal life in the community. Hopefully; he will be given support and that the promises he makes today will take effect. I will give him the opportunity to fulfil those promises. Orders 1. Individual sentences will be imposed. Each sentence has a 25% reduction for the utilitarian value of the guilty plea. 2. For the breach of the apprehended violence order. There will be a sentence of four months imprisonment. It will date from 26 January 2022 and expire on 25 May 2022. 3. The sentence for the reckless wound will commence after two months, on 26 March 2022. There will be a non-parole period of two years and three months. It will date from 26 March 2022, and expire on 25 June 2024, on which date Porceddu will be eligible for consideration for a release to parole. To give effect to my finding of special circumstances, there will be a parole period of one year and six months to date from that date. 4. So, the total period in custody is three years and 11 months, and the minimum period is 2 years 5 months. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2023