Citation: R v Aras Giotas [2007] NSWDC 37
Court: District Court of New South Wales
Date: 23 March 2007
Judge(s): Knox SC DCJ
Background
The offender was an employer in a real estate agency in Marrickville, Sydney. The complainant was his receptionist. On 2 August 2001, the offender lured her to a separate premises under a work-related pretext and, on the Crown's case, committed two violent acts of sexual intercourse without her consent in quick succession.
The complainant gave evidence that the offender grabbed her by the hair, forced her onto the bed, ripped her clothing, and penetrated her twice while she repeatedly said "stop it" and "no." Medical examination at Royal Prince Alfred Hospital the following day recorded bruising, tenderness across multiple areas of her body, and a graze at the entrance to the vagina. The offender denied the charges, claiming the intercourse was consensual.
This was a re-trial. The offender had been convicted at an earlier trial in July 2005, sentenced by Judge Greg Woods QC to four years and six months with a non-parole period of two years and three months. The Court of Criminal Appeal set aside that conviction in R v Giotas [2006] NSWCCA 358. Neither party had appealed the original sentence. A second jury convicted the offender after approximately two hours of deliberations in February 2007.
Legal Issues
- Whether the sentence imposed on re-trial could lawfully exceed the sentence imposed at the first trial, given neither party had appealed against that original sentence.
- What findings of fact were consistent with the jury's guilty verdict, particularly regarding the nature and degree of violence involved.
- What the appropriate head sentence and non-parole period should be, having regard to the objective seriousness of the offences, the offender's personal circumstances, and the question of special circumstances.
Decision
Knox SC DCJ found that the evidence supported a higher assessment of the criminality involved than had been reflected in the original sentence. The sentencing judge had the benefit of evidence from the re-trial, including cross-examination of the complainant over two days and the offender's own evidence-in-chief and cross-examination, neither of which had occurred at the first trial. The judge found that the re-trial evidence established a degree of violence and a pattern of conduct that justified a higher finding of objective seriousness.
On the question of whether a higher sentence was permissible, the court accepted that a sentencing judge on re-trial exercises an independent discretion and is not bound by the earlier sentence. The absence of a Crown appeal against the first sentence did not cap the sentence available on re-trial, provided the judge identified reasons grounded in the evidence for any increase.
The court found special circumstances warranting a reduction of the standard statutory ratio between the non-parole period and head sentence, based on the offender's age, employment prospects, and his relationship with his partner. However, the judge held that the degree of reduction applied by Judge Woods QC was not justified on the evidence in the re-trial, and set the ratio at approximately two-thirds rather than one-half.
The sentence was backdated to account for the period the offender had already served in custody, including the time before the original conviction was quashed and the period from the re-trial verdict onwards. The total time already in custody was approximately one year and 29 days.
Orders Made
- The offender was convicted on each of the two counts of sexual intercourse without consent.
- On each count, a head sentence of five years imprisonment was imposed, commencing 23 February 2006 and expiring 22 February 2011.
- A non-parole period of three years and four months was set, commencing 23 February 2006 and expiring 22 June 2009.
- Upon release, the offender was to be subject to standard parole conditions, including compliance with any directions of the Probation and Parole Service as to counselling or other treatment.
Key Takeaways
- A sentencing judge on re-trial exercises an independent sentencing discretion and is not automatically bound by the sentence imposed at the first trial, even where neither party appealed against that sentence.
- Where the re-trial produces additional or different evidence, including evidence from the offender who did not testify at the first trial, that material may justify a higher assessment of objective seriousness and a higher sentence.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can warrant a reduction in the statutory ratio between the non-parole period and the head sentence, but the extent of that reduction must be proportionate to the specific factors established in evidence.
- Under section 61I of the Crimes Act 1900 as it stood at the time of the offending, the maximum penalty for sexual intercourse without consent was fourteen years imprisonment.
- Medical corroboration of a complainant's account, including documented physical injuries consistent with the alleged force, is a significant factor in the sentencing court's assessment of objective seriousness and the credibility of the complainant's evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Giotas [2006] NSWCCA 358
- McL v The Queen (2003) 203 CLR 452
- R v MM [2002] NSWCCA 431
- R v Hannes [2002] NSWSC 1182
- R v Gilmore (1979) 1 A Crim R 416
- R v Bedford (1986) 5 NSWLR 711
- R v Merritt [2000] NSWCCA 365
- R v Way (2004) 60 NSWLR 168
- Regina v AJP (2004) 150 A Crim R 575
- MLP v R [2006] NSWCCA 271
- FV v Regina [2006] NSWCCA 237
- R v Trevanna [2004] NSWCCA 43
- R v George [2004] NSWCCA 247
- Azzopardi (2001) 179 ALR 349
- R v Petersen (1999) 2 Qd 85
- R v Sloane (2001) 126 A Crim R 188
- Siganto v R (1998) 159 ALR 94