STATE OF TASMANIA v DANIEL VICTOR GANDINI 27 JUNE 2024
COMMENTS ON PASSING SENTENCE BLOW CJ
The accused has been found guilty by a jury on two charges of assaulting his wife (counts 1 and 3 on the indictment) and four charges of “Committing an unlawful act intended to cause bodily harm” contrary to s 170(1) of the Criminal Code (counts 4-7 on the indictment).
Although charged under the name Daniel Victor Gandini, he strongly prefers to be known as “Diplomate Dan”. In order to minimise tensions I took the unusual course throughout the trial of referring to him as “Dan” and addressing him as “Dan”. I will continue to do that in these sentencing comments.
The charges relate to events that took place on 7 and 8 July 2021 at the home of Dan and his wife at Port Sorell. For sentencing purposes I will need to make some findings of fact in relation to the relevant events and Dan’s state of mind. I may make findings of fact adverse to him only if I am satisfied of such facts beyond reasonable doubt. I may make findings of fact favourable to him if satisfied of such facts on the balance of probabilities.
Dan was due to appear before a magistrate on Friday 9 July 2021 on a charge of driving whilst disqualified. He feared that he would lose his driver’s licence. In my view his mental health was not good. He was very distressed about the forthcoming court appearance, and was putting an enormous amount of effort into preparing for it. His wife gave evidence that he and she had a heated discussion about court documents on the night of 7 July 2021, that he stood in front of her, that he was very agitated, that he raised his voice at her, and that he used two fingers to push into the left side of her chest. Count 1 on the indictment was a charge of unlawfully assaulting his wife by pushing her to the chest. The jury found him guilty of that charge. It is clear that they accepted Mrs Gandini’s evidence, and so do I.
Mrs Gandini gave evidence that on the morning of Thursday 8 July she and Dan were talking about preparing documents for the court appearance, that he started to become frustrated about a document that he was not happy with, that he became quite short and snappy with her, and that he went to the kitchen, returned with a glass of water, threw it over her and their daughter, and then stood very close to her with the glass in his hand, put it up to her head so close that it was nearly touching her, and said that he wanted to drive the glass through her head. Count 3 on the indictment alleged that he unlawfully assaulted her “by pouring water over her head and threatening to hit her in the face with the glass”. The jury found him guilty of that charge. Clearly they accepted Mrs Gandini’s evidence in relation to that incident, and so do I.
Mrs Gandini thought she might need to go somewhere safe and call for help. She took her mobile phone and went outside. Dan locked her out. She tried to get back inside, without success. The couple have two children who were then aged 5 and 3. The 5 year old boy opened a door and both children came outside. Mrs Gandini found herself in a situation where she did not have her car keys or her wallet, and was still in her dressing gown and nightshirt. She and the children waited in her car in the carport for a long time.
Dan had been seeing a psychologist named Michael Marriott. Eventually Mrs Gandini phoned Mr Marriott, said something to him about Dan’s mental health deteriorating, and told him that he had barricaded himself in the property and locked her and the children out. He suggested that she call the police.
After that phone call, Mr Marriott phoned the Devonport Police Station and spoke to a police officer. He said that Dan was his client, that he had lost the plot and locked himself in his house, that he had armed himself, with a knife he thought, and that he was quite a paranoid individual. He said that Dan had become increasingly disturbed and paranoid and distressed, that he did not think he would harm his wife or his children, that they were all in the car, and that Dan had the keys to the car inside the house.
Shortly after 9am Mrs Gandini phoned 000. She told the operator that Dan had barricaded himself inside the house with weapons, that he was having a mental breakdown, that he had locked her and the children out of the house, and that she did not have her car keys and could not leave.
A little later a police officer phoned Mrs Gandini. They spoke together for 14 minutes, by which time a number of police officers had arrived at the corner of her street. During that call Mrs Gandini said that Dan had knives, that he was talking about blowing up the shed, that he was really unwell mentally, and that he was probably going to kill people. She said that he had shut all the windows, locked all the doors, and locked all the gates so that she could not even get into the back yard. She said that he had security cameras at the front of the house and would be watching. She quoted him as saying, “I’ll be ready for war if anyone comes to get me.” The police officer told Mrs Gandini that police were coming in cars from Devonport, Latrobe, Sheffield and Railton.
The first police officer on the scene was Constable Ford. He arrived at 9.21am. Mrs Gandini and the children walked to the corner of their street and met him and other officers there a few minutes later. He asked Mrs Gandini a series of questions. He found out that Dan was in the house alone, and that he had knives but no firearms. He asked whether there was any fuel or fertilizer in the house and Mrs Gandini said that both were there. She did not know whether the fuel was diesel or petrol or what the fertilizer was. Constable Ford had grown up in the country and was familiar with a practice whereby farmers blew up tree stumps using a mixture of diesel fuel and fertilizer. He asked Mrs Gandini whether her husband had any mining experience, and she confirmed that he had. Constable Ford formed the view that there was the potential of a man with mining experience using fertilizer and diesel fuel to cause an explosion.
A very large number of police officers arrived at the scene. They all remained at a safe distance from the house. They formed a cordon around it. They got the residents in neighbouring houses to evacuate their homes. Two officers took Mrs Gandini and the children to a local park where one of then commenced obtaining a statement from her. The main road into Port Sorell was blocked. A police forward command post was set up. Road spikes were deployed in case Dan tried to drive away. Officers with specialist qualifications as negotiators arrived and attempted to contact Dan. Officers from the Special Operations Group arrived from Hobart, Launceston and Bicheno. The Bomb Response Squad and a drone operator also arrived.
It took some time for the negotiators to make contact with Dan. He had no legal obligation to speak to them, and initially chose not to. Ultimately there was some communication with him during the afternoon by telephone and by text message. He made it clear that he was not willing to come out of his house.
As a result of information provided by Mrs Gandini and made known amongst the officers on the scene, police officers reasonably suspected that Dan had committed a family violence offence by assaulting Mrs Gandini. As a result they had the power to enter the premises where Dan was, search for him there, and arrest him, pursuant to ss 10(7) and 11 of the Family Violence Act 2004. Section 10(7) authorised them to use reasonable force.
Mr Marriott, the psychologist, went to Port Sorell in the evening and spoke to Dan by telephone a number of times. Dan still would not come out of the house. Ultimately senior officers decided upon a plan to disable the security cameras, blow open the front door using a small explosive charge, and arrest Dan. At about 9.20pm four officers approached the residence and smashed the security cameras, using a ladder to reach the highest one. Shouting was heard from inside the residence. The explosive charge was placed at the front door. It was subsequently detonated. There was evidence that Dan was known to be at a safe place inside the house when it was detonated, but Dan disputed that evidence saying that he could not be seen inside the house because all the blinds were down and the doors were closed. After the destruction of the door Dan came through the front doorway and confronted four officers from the Special Operations Group.
Counts 4, 5, 6 and 7 alleged that Dan “with intent to disfigure and/or do any grievous bodily harm and/or resist or prevent the lawful detention of himself, cast or threw hydrochloric acid and/or sulphuric acid which is a corrosive fluid” at the four officers. There was a separate charge in relation to each officer. The jury found him guilty of all four of those charges. Plainly they were satisfied beyond reasonable doubt that Dan threw a quantity of acid at the four officers, and that he intended at least one of the consequences pleaded in those charges.
One of the officers, Constable Scott, who was standing at the front of the group, gave evidence that he saw Dan appear with a container and throw a liquid at them once, that some of the liquid went into his right eye, and that he could feel burning to his face, and that the vision to his right eye was severely impacted. Two of the other officers said that they saw Dan throw the liquid at them, go back inside, return, and throw liquid at them a second time. The fourth officer, Senior Constable Bennett, did not give evidence of seeing Dan throw the liquid a second time, but he did say that he moved back with Constable Scott in case the liquid landed on him. I am satisfied beyond reasonable doubt that Dan threw a second quantity of liquid towards the officers. However, of the two officers who described the second throw, one said that the liquid reached them and the other said that it fell short. I am not satisfied beyond reasonable doubt that the second quantity of liquid reached any of the officers.
After throwing the liquid, Dan went back inside the house briefly, but then came back out. Some officers fired projectiles that were described during the trial as “less lethal ammunition”, hitting him and causing him to fall to the ground and sustain a minor injury. He was arrested and detained. Up to that point none of the officers had told him that they wished to arrest him for assaulting his wife.
The four officers at whom Dan threw the liquid were all wearing protective clothing, including goggles, balaclavas, Kevlar sleeves, gloves, ballistic vests, and camouflage jackets. They were carrying ballistic shields.
Some of those items were damaged by the liquid that Dan threw. Parts of some items were burned or began to melt. It is clear that the liquid thrown was a corrosive fluid, as alleged in the charges. I need not make a finding as to whether it was hydrochloric acid, sulphuric acid or both. The proposition that it was sulphuric acid appears to have originated from an entry in Constable Scott’s hospital records. Samples from the carport floor and the loungeroom carpet were analysed by a forensic scientist and determined by her to contain hydrochloric acid. An open container with a label saying “Hydrochloric Acid” was found in the house, but its contents were not analysed. The weight of the evidence suggests that the corrosive fluid was hydrochloric acid.
For sentencing purposes, I need to make findings as to what Dan intended when he threw the liquid. Each charge asserted three possibilities – “intent to disfigure and/or do any grievous bodily harm and/or resist or prevent lawful detention”. Although Dan was in a very upset state, it must have been plain to him that the goggles and clothing worn by the four officers would make it very difficult, and possibly impossible, for the acid to cause them any physical harm. I think it far more likely that he was trying to scare them away when he threw the acid, rather than trying to disfigure them or cause really serious injuries. I will sentence on the basis that Dan apprehended that the officers were likely to be wanting to arrest and detain him, that such detention would have been lawful, and that he intended to resist or prevent his lawful detention by throwing acid at them. That is consistent with the verdict of the jury. Although the crime created by s 170(1) of the Criminal Code is called “Committing an unlawful act intended to cause bodily harm”, the wording of the subsection permits a jury to find a person guilty of that crime when that person’s intention is not to cause bodily harm, but to resist or prevent lawful arrest or detention. It was however an ingredient of each of the four crimes charged that Dan cast or threw a corrosive fluid at a person.
Neither Mrs Gandini nor any of the four officers has provided a victim impact statement.
The events in question brought the marriage of Dan and Mrs Gandini to an end. She and the children have moved to another State, with the help of some funding provided by the Tasmanian Government. The property in Port Sorell has been sold. The proceeds have been frozen pending litigation under the Family Law Act 1975 (Cth). Mrs Gandini suffered some bruising to her chest, but not for long. Both assaults were committed when both children were in the house. The couple’s three-year-old daughter was with her mother when the glass of water was thrown and some of the water went onto her. The events of the morning of 8 July must have been very distressing for the children. As I understand it, they have not seen their father for nearly three years now and it could be a very long time before they see him again, even though he appears to have had a close and loving relationship with both of them.
Constable Scott withdrew from Dan’s property, went to a neighbouring property, and rinsed his face and equipment with a garden hose. He was taken to the Mersey Hospital at Latrobe by ambulance and seen by a specialist. It was noted that his eye was red and had a burning sensation, and that both his legs had been exposed, but without any burning sensation. The eye and legs were flushed with a saline solution. His eyesight was not affected. Mild burns were noted on the skin of his right upper eyelid. He was discharged from the Emergency Department at 12.08am. There is no suggestion that he suffered any cosmetic damage.
Another of the SOG officers, Sgt Van den Broek, found that parts of his jacket, gloves, and ballistic vest had been melted by the acid. He said that the gloves had fused to his skin, and that he experienced a burning sensation to his arms and hands.
Some items of the clothing of the other two SOG officers were damaged, but the acid did not make contact with any part of the body of either of them.
Plainly the throwing of acid onto the four officers was a very dangerous thing to do. Despite their protective clothing, some of the acid could well have found its way into their eyes or onto their skin and done far more damage than was done to Constable Scott’s right eye. It is significant that the four men were police officers who were doing their duty in obedience to commands from senior officers.
Dan was 41 years old when he committed these crimes and is now 44. He is now single. He had not been to prison before the events in question. He was convicted on an assault charge in 2003 and ordered to perform community service. He was on bail on the charge of driving while disqualified at the relevant time. He has a number of other minor prior convictions, but none for family violence.
Some evidence as to Dan’s mental state was given by Mr Marriott. In a report to Dan’s general practitioner dated 29 July 2021 he wrote this:
“My belief is that Daniel suffers from a delusional disorder. He has personality issues which predispose him to conflict with most people he encounters. I expect he would be calmer and do better if he was in a Community Mental Health Order which mandated Depot injections of an anti-psychotic.”
In the course of his evidence he said he thought Dan had always done better when he had been taking anti-psychotic medication; that he had a history of taking Olanzapine and Quetiapine; and that those medications helped to suppress paranoid ideas. Later he said that delusional disorder was not a personality disorder but a psychotic disorder whereby a person is completely rooted in reality except for ideas which are clearly imaginary.
It was clear from things that Dan said and documents that he tendered during the trial that he has some very strange ideas about his identity, his status, the law, and his treatment by others. It is also clear that, whilst he considered that he would benefit from seeing a psychologist in 2021 before his arrest, he did not share Mr Marriott’s views as to his mental state or appropriate treatment.
It is clear that Dan was suffering from some form of mental disorder or abnormality that had a significant impact on his conduct on the days when these crimes were committed. He had very strong views about his right to exclude visitors from his property, and his right not to speak to the police if they tried to contact him, and about the police. He appears to have been in fear for his safety all day on 8 July. I did not order a psychiatric report because I see no need to inform myself as to the appropriate diagnosis or the current severity of his condition or abnormality. I am satisfied that his mental functioning at the relevant times was impaired as a result of some sort of disorder or abnormality to such an extent that his moral culpability for his offending conduct was substantially reduced. However I do not see this as a case where imprisonment is likely to have a significant adverse effect on Dan’s mental health. It is likely that, during any period in prison, he will receive appropriate treatment and his mental health will improve.
Dan kept out of trouble during a period of over 19 months between his release on bail in November 2022 and his return to custody two days ago. He conducted his own defence in relation to these charges, and maintained his self-control throughout the trial despite there being some stressful moments. He wishes to restore his relationship with his children, and that will be delayed by further time in custody. He has a series of physical medical ailments that will result in imprisonment being a more difficult experience for him than it is for most prisoners. He has a good work record, having worked in the mining industry before being incapacitated by a back injury. He has been living a quiet life in a caravan in a rural area.
The assaults on his wife involved a very low level of violence. I need to say something about the fact that he was acquitted on count 2 on the indictment, which alleged another minor assault on the night of 7 July 2021. I think the jury’s verdicts in relation to counts 1, 2 and 3 can be reconciled on the basis that there was some corroboration of Mrs Gandini’s evidence in relation to counts 1 and 3 but none in relation to count 2. Her evidence as to count 1 was corroborated by photographs of her injuries. Her evidence as to count 3 was corroborated by evidence from Senior Constable Gray that she told him on the morning of 8 July 2021 that Dan had thrown a glass of water over her. However there was no corroboration in relation to her evidence relating to count 2. I infer that the jury were not satisfied beyond reasonable doubt of the truth of the evidence in relation to count 2 as a result of the absence of corroboration.
I have to sentence Dan in relation to two minor charges of family violence and four serious charges relating to violent acts towards police officers. The only appropriate sentence is a substantial sentence of imprisonment. Because of the mitigating factors that I have referred to, particularly Dan’s mental health at the time in question, I will impose a significantly shorter sentence than would otherwise be appropriate, and fix the shortest possible non-parole period.
After being arrested on 8 July 2021 Dan remained in custody until bail was granted by Jago J on 8 November 2022. He was in custody for 489 days inclusive of those two dates. However, on 2 August 2022, whilst he was in custody, a magistrate sentenced him to one month’s imprisonment, backdated to 2 July 2022, in respect of some summary offences. The result is that 31 days of the 489 days are attributable to that sentence, and the remaining 458 days are attributable to the charges that are now before me. Dan was taken into custody when the jury found him guilty on 24 June 2024. I will therefore impose a sentence that is backdated to commence 458 days before that date, on 22 January 2023.
On the six charges I convict you and sentence you to 3 years 6 months’ imprisonment with effect from 22 January 2023. You will not be eligible for parole until you have served 21 months of this sentence. I direct that the convictions on counts 1 and 3 be recorded on your criminal record as family violence offences.