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Court of Criminal Appeal 4 February 2013

Piscitelli v R

[2013] NSWCCA 8

Sexual offencesAssault & violence
CRIMINAL LAW TWO COUNTS OF AGGRAVATED SEXUAL ASSAULT NO FACT FINDING ERROR TOTAL SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Piscitelli v R [2013] NSWCCA 8
Court: Court of Criminal Appeal, New South Wales
Date: 4 February 2013
Judge(s): Hoeben JA, Johnson J, Button J (judgment delivered by Button J)

Background

The applicant was sentenced in the District Court at Wollongong in February 2011 for four sexual offences arising from a single incident in April 2010. The offences involved breaking into the home of an 83-year-old widow living alone and subjecting her to a sustained and violent sexual assault. The offending included digital and penile penetration, and concluded with the applicant repeatedly striking the victim's head against a brick wall, causing a wound that constituted a circumstance of special aggravation under the Crimes Act 1900.

Judge Frearson SC imposed a total head sentence of 16 years and 6 months' imprisonment, with a total non-parole period of 11 years and 6 months. The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentences were excessive.

  • Whether the sentencing judge made any error of fact in characterising the offending
  • Whether the sentencing judge placed undue weight on the objective gravity of the offences
  • Whether any individual sentence was manifestly excessive
  • Whether the total head sentence and non-parole period were manifestly excessive, including by comparison with sentences imposed in other cases

Decision

The Court granted leave to appeal but dismissed the appeal on all grounds. Button J (with whom Hoeben JA and Johnson J agreed) found no error in the sentencing judge's factual findings, none of which were challenged on appeal. The sentencing judge's emphasis on the objective seriousness of the offending was held to be entirely appropriate given the extreme nature of the criminality.

On the question of individual sentences, Button J found none was manifestly excessive. The offences fell within the category of the most serious sexual violence: the victim was elderly and vulnerable, the attack occurred in her own home, threats were made, physical injury was inflicted, and the offending was sustained and degrading.

Button J also rejected the submission that the total sentence was manifestly excessive. Comparisons with two other cases advanced by the applicant's senior counsel did not persuade the Court that the sentences fell outside the proper sentencing range. The Court noted that sentencing is a discretionary exercise, and comparison cases can at best indicate a range rather than dictate a result.

Button J added that, viewed in light of the discount the applicant received for a guilty plea and expressed remorse, the total sentence was not disproportionate. A hypothetical sentence following a trial was estimated to be in the order of 22 years' head sentence with a non-parole period of around 15 years and 6 months. The Court noted that such a sentence, while heavy, would not have been inappropriate given the gravity of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that objective gravity remains a legitimate and weighty consideration in sentencing for serious sexual offences, and a sentencing judge does not err by giving it significant emphasis.
  • No error was established in the sentencing judge's factual findings, and the Court noted that no ground of appeal even challenged those findings.
  • In dismissing the appeal, the Court reiterated that comparison with other sentences can indicate a sentencing range but cannot compel a particular outcome; an applicant must demonstrate the sentence is so far outside the available range as to be clearly wrong.
  • Discounts for guilty pleas and genuine remorse are factored into the sentencing calculus, and the Court here considered the hypothetical trial sentence when assessing whether the actual sentence was disproportionate.
  • Sentences of significant length for sexual violence of extreme brutality are not inherently manifestly excessive: the Court cited its own decision in Haines v R [2012] NSWCCA 238 as illustrating that very lengthy sentences remain available where the criminality warrants them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Haines v R [2012] NSWCCA 238
- Hanania v R [2012] NSWCCA 221
- Lobsey v R [2012] NSWCCA 239
- Aoun v R [2011] NSWCCA 284
- Yousef v R [2011] NSWCCA 104
- Rutkowsky v R [2008] NSWCCA 10
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- AA v R [2009] NSWCCA 109
- Brooks v R [2006] NSWCCA 169
- R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
- R v Kelly (1993) 30 NSWLR 64
- R v O'Donoghue (1988) 34 A Crim R 397