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District Court 30 September 2022

R v Giardina

[2022] NSWDC 436

Sexual offencesTheft & property
CRIME SENTENCE HISTORICAL OFFENCES DELAY IN SENTENCING.

Citation: R v Giardina [2022] NSWDC 436
Court: District Court of New South Wales
Date: 30 September 2022
Judge: Mahony SC DCJ

Background

The offender was convicted by jury in July 2022 of two offences committed on 21 December 1988: entering a dwelling at night with intent to commit larceny (s 111 of the Crimes Act 1900) and sexual intercourse without consent knowing there was no consent (s 61D(1) of the Crimes Act 1900). The offences occurred when the offender entered the victim's home at night and, taking advantage of her confusion about who was present, sexually assaulted her. He was acquitted of a related stealing charge.

The path to conviction spanned more than three decades. The offender's DNA had been collected in Queensland in 2008 and matched to crime scene material from 1988, but the link was not reported to NSW Police until October 2009. No charges followed at that time. The match was only acted upon after the offender was transferred from Queensland custody to New South Wales custody in December 2019, having by then been serving a life sentence for murder imposed in Queensland in 2011.

At the time of sentencing, the offender remained in custody under that life sentence and was not yet eligible for parole on the murder conviction. The sentencing court therefore had to navigate the interaction between the new sentences and the existing custodial term.

  • What was the objective seriousness of each offence, and were there applicable aggravating factors?
  • How should the 34-year delay between the offending and conviction be treated in sentencing?
  • Whether the sentences for the two counts should be served concurrently or partly cumulatively, applying the totality principle.
  • What weight should be given to the offender's rehabilitation, hardship in custody, and the victim's impact statement?
  • How should the new sentences be structured given the offender's existing life sentence for murder?

Decision

Objective seriousness: His Honour assessed Count 1 (enter dwelling at night) as falling within the mid-range of objective seriousness, as the facts reflected the base elements of the offence without notable aggravation. For Count 2 (sexual assault), the court took into account the nature of the act, the risk of disease and pregnancy arising from ejaculation, the offender's exploitation of the victim's confusion, and his post-offence demeanour, including a smirk and a contemptuous comment to the victim. The court found the offence in Count 2 was aggravated by occurring in the victim's home under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999.

Delay: The court engaged with the principles governing delay in historical offending cases. Relying on R v Spiers and R v Hall, the court confirmed that only delay attributable to the intervention of authorities can mitigate sentence, not an offender's uncertainty about whether the offence will ever be detected. The court noted the Crown's concession that NSW Police had held the DNA link since 2009 and took that period of official inaction into account, though the exact weight given is not fully set out in the available text.

Totality and concurrency: The court found that, while the two offences arose from one course of criminal conduct, the sexual assault in Count 2 significantly escalated the seriousness of the overall conduct beyond what Count 1 alone would reflect. Applying the totality principle as articulated in R v Cahyadi, the court held that some accumulation was warranted. An aggregate sentence of four years was imposed.

Structuring the sentence: Because the offender was still serving his Queensland life sentence, the court backdated the commencement of the aggregate term to 30 September 2021. Special circumstances were found, resulting in a non-parole period of two years and six months rather than the standard two-thirds proportion. The victim's impact statement was accepted as demonstrating significant and enduring harm, though the court acknowledged that distress caused by the manner of the original police investigation could not be attributed to the offender.

Orders Made

  • Conviction entered for entering a dwelling house at night with intent to commit larceny (s 111, Crimes Act 1900), 21 December 1988.
  • Conviction entered for sexual intercourse without consent knowing there was no consent (s 61D(1), Crimes Act 1900), 21 December 1988.
  • Aggregate sentence of four years imprisonment, commencing 30 September 2021.
  • Non-parole period of two years and six months, from 30 September 2021 to 29 March 2024.
  • Balance of term from 30 March 2024 to 29 September 2025.

Key Takeaways

  • The District Court confirmed that delay in prosecuting historical offences can be a mitigating factor in sentencing, but only where the delay is attributable to the conduct of authorities after they have intervened, not to the offender's own uncertainty about detection.
  • Where two offences arise from a single course of criminal conduct, full concurrency is not automatic. Where one offence substantially escalates the criminality beyond the other, partial accumulation is required to reflect total criminality under the totality principle.
  • A sentence can be backdated to a date before judgment where the offender has been in custody for the index offences, even when also serving an existing custodial term for unrelated matters.
  • Special circumstances justifying a longer-than-standard parole period can be found even where an offender is already in custody under a separate sentence, including to account for rehabilitation needs upon eventual release.
  • Victim impact statements are a recognised factor in sentencing, but harm that flows from the conduct of police rather than the offender can only be given limited weight.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 111
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(eb)

Cases:
- Bennett v R [2014] NSWCCA 197
- Cahyadi v R [2007] NSWCCA 1
- Clinton v R [2009] NSWCCA 276
- Elchiek v R [2016] NSWCCA 225
- Mill v R (1988) 166 CLR 59
- R v EGC [2005] NSWCCA
- R v Hall [2017] NSWCCA 313
- R v Kovacs, NSWCCA, Unreported, 29 March 1989
- R v McGrath [2010] NSWCCA 48
- R v MJR [2002] NSWCCA 129
- R v Moon [2000] NSWCCA 534
- R v Spiers [2008] NSWCCA 107
- R v Todd (1982) 2 NSWLR 517
- Radenkovic v R (1990) 170 CLR 623
- RL v R [2015] NSWCCA 106