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Court of Criminal Appeal 5 December 2008

Giotas v R

[2008] NSWCCA 287

Sexual offences

Citation: Giotas v R [2008] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 5 December 2008
Judge(s): McClellan CJ at CL, Hislop J, Hoeben J

Background

The appellant was convicted by a District Court jury of two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, arising from events on 2 August 2001 at Marrickville. The complainant was a receptionist at a real estate agency co-owned by the appellant. The Crown alleged that the appellant lured her to a room above a nearby cafe under a work-related pretext and sexually assaulted her on two occasions during the same incident.

This was the appellant's second trial. His first conviction before Judge Woods QC had been set aside by the Court of Criminal Appeal because the trial judge failed to direct the jury properly regarding the appellant's decision not to give evidence. At the retrial before Judge Knox SC, the jury again returned guilty verdicts. The appellant then challenged both the retrial convictions and the sentences imposed by Judge Knox.

Judge Knox imposed sentences that exceeded those originally imposed by Judge Woods. The appellant argued the retrial sentences were excessive, particularly given the principle that a sentence following a new trial should not ordinarily exceed the original sentence.

  • Whether the trial judge erred in failing to discharge the jury after evidence from a medical witness (Dr Larsen) was admitted
  • Whether the trial judge erred in failing to give a direction under the Longman principle regarding the delayed recollection of other potential witnesses (persons at a hotel and the Salvation Army)
  • Whether the trial judge erred in failing to allow further cross-examination of the complainant and in failing to discharge the jury in those circumstances
  • Whether the jury's verdict was unreasonable and unsupported by the evidence
  • Whether Judge Knox erred by imposing sentences at the retrial that exceeded those originally imposed by Judge Woods

Decision

The Court dismissed all four grounds of appeal against conviction. The Court applied established principles from M v The Queen (1994) and MFA v The Queen (2002) in concluding that the verdict was not unreasonable. The complainant's evidence, assessed in the context of the whole of the trial, was capable of supporting the jury's findings, and no basis existed to interfere with the convictions.

On the Longman direction ground, the Court found no error by the trial judge. The direction in question is given where a complainant's delay in reporting an offence may have affected a defendant's ability to investigate or challenge the allegation. The Court was satisfied the circumstances did not require such a direction in relation to the specific witnesses identified by the appellant.

On the sentence appeal, the Court found error. Judge Knox had assessed a higher level of objective criminality than Judge Woods, found no remorse and no special circumstances, and imposed heavier sentences. Hislop J held that the factual material before each judge was not significantly different. Applying Markarian v R (2005), the Court noted the broad discretionary range available to sentencing judges, but held that no material difference in the evidence before Judge Knox was sufficient to overcome the presumption against increasing a sentence on retrial. The heavier sentence imposed at the retrial was not justified.

Orders Made

  • Appeal against convictions dismissed
  • Leave to appeal against sentences granted
  • Appeal against sentences allowed
  • Sentences quashed and replaced: on each count, imprisonment with a non-parole period of 2 years 3 months commencing 29 July 2005 and expiring 28 October 2007, with a balance of term of 2 years 3 months commencing 29 October 2007 and expiring 28 January 2010
  • The Court noted the appellant had already served the non-parole period and was on bail at the time of judgment

Key Takeaways

  • A strong presumption exists against increasing a sentence imposed at a retrial above that set at the original trial, absent materially different or significantly more serious circumstances before the retrial judge.
  • Where two sentencing judges assess similar factual material differently, and both assessments fall within the available discretionary range, that difference alone does not justify a higher sentence on retrial.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a verdict is not unreasonable merely because conflicting evidence was before the jury; the test requires assessing whether the jury, acting rationally, could have been satisfied of guilt beyond reasonable doubt.
  • The Longman direction (warning a jury about the risks of delay in complaint) is not automatically required wherever delay is present; its necessity depends on whether the delay has concretely affected the defendant's ability to investigate or test the allegation.
  • Giving evidence at a retrial, and having that evidence assessed adversely by the trial judge, does not of itself constitute a new or special circumstance warranting a heavier sentence than that imposed at the first trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400
- M v The Queen (1994) 181 CLR 287
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
- RHMcL v The Queen (2000) 203 CLR 452
- R v Hannes [2002] NSWSC 1182; (2002) 173 FLR 1
- Tarrant v R [2007] NSWCCA 124; (2007) 171 A Crim R 425
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357