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Court of Criminal Appeal 23 June 2023

Giacometti v R

[2023] NSWCCA 150

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCING MULTIPLE OFFENCES COMMITTED ON PARTNER SEXUAL AND VIOLENT OFFENDING LATE PLEA OF GUILTY TO SEVEN OFFENCES OTHER UNCHARGED ACTS

Citation: Giacometti v R [2023] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 23 June 2023
Judges: Mitchelmore JA, Davies J, Hamill J (reasons delivered by Hamill J, Mitchelmore JA and Davies J agreeing)

Background

The applicant pleaded guilty in the Campbelltown District Court to seven offences committed against his girlfriend over a nine-month period in 2018. The offences included sexual intercourse without consent, attempted sexual intercourse without consent, two counts of intentional choking, two counts of assault occasioning actual bodily harm, and reckless wounding. Five further assault offences were taken into account on a Form 1 (a sentencing mechanism by which additional offences are formally acknowledged without separate conviction). Evidence also revealed a pattern of uncharged demeaning and violent acts, demonstrating the charged conduct was not isolated.

The sentencing judge at first instance imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years and 9 months. In the course of sentencing, the judge found that the applicant had provided inconsistent histories to multiple experts and characterised him as an unreliable historian. On that basis, the judge substantially disregarded the applicant's subjective case, including psychiatric and psychological evidence tendered on his behalf. The judge also appeared to make no reference to the applicant's experience in custody, including the impact of COVID-19 on his imprisonment.

The applicant appealed to the Court of Criminal Appeal on two grounds: first, that the sentencing judge erred in declining to consider his subjective circumstances; and second, that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by rejecting almost all of the applicant's subjective and mitigating evidence on the basis of inconsistencies in histories provided to expert witnesses
  • Whether the sentence of 14 years imprisonment with a non-parole period of 9 years and 9 months was manifestly excessive
  • Whether, if error was established, a lesser sentence was warranted on resentencing

Decision

The Court of Criminal Appeal found error under the first ground. While conceding inconsistencies existed in some areas of the applicant's history (notably regarding abuse by his grandmother and pornography use), the Court held that those inconsistencies did not justify discarding virtually the entire subjective case. Several factors were consistently reported across expert materials, including abandonment by the applicant's mother and abuse by his grandfather. Together with a diagnosis of a paraphilic disorder, those matters were described as compelling and should not have been rejected. The applicant was also entitled to have his relative youth, lack of prior convictions, and custodial experiences (including witnessing a murder and the effects of COVID-19) taken into account.

On the second ground and in resentencing, the Court assessed the gravity of the offending in detail. The course of conduct was characterised as sexual and violent offending of an extreme and depraved kind sustained over many months. The Court accepted that the applicant's childhood experiences and mental health conditions had only a modest bearing on his moral culpability. After determining indicative sentences for each offence and considering the appropriate degree of accumulation within an aggregate sentence, the Court concluded it would have imposed a sentence of at least the same magnitude as that handed down in the District Court.

Because no lesser sentence was warranted, the Court could not uphold the appeal under section 6(3) of the Criminal Appeal Act 1912 (NSW), which requires a finding that a different, less severe sentence ought to have been imposed. Leave to appeal was granted, but the appeal was dismissed.

The Court also commented on the practice of sentencing judges addressing offenders directly in remarks on sentence. All three judges expressed that the practice is not encouraged. The Court observed that couching sentence remarks in the third person more easily maintains the judicial objectivity and disinterest that sentencing requires.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's finding that an offender is an unreliable historian does not automatically justify discarding the whole of the offender's subjective case. Inconsistencies in discrete areas of a history do not infect matters that are consistently reported across expert materials.
  • Certain mitigating circumstances, including relative youth, absence of prior convictions, and the conditions of custody, must be given consideration regardless of concerns about an offender's credibility as a historian.
  • Under section 6(3) of the Criminal Appeal Act 1912 (NSW), error in the sentencing exercise is insufficient by itself to warrant allowing a sentence appeal. The Court must also be satisfied that a less severe sentence ought to have been imposed.
  • In resentencing, the Court found that offending of a prolonged, sexually violent, and demeaning character, sustained over many months, justified an aggregate sentence at least equivalent in magnitude to the original 14-year term.
  • Delivering sentence remarks in the third person is preferable to addressing the offender directly. The Court of Criminal Appeal confirmed that the third-person approach more readily sustains the appearance of judicial objectivity and disinterest.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 37(1), 59, 59(1), 61, 61I, 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g), 21A(h), 21A(3)(i), 53A(2)(b), 54B(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Devaney v R [2012] NSWCCA 285
- Lloyd v R [2022] NSWCCA 18
- Ragg v R [2022] NSWCCA 150
- R v Sharrouf [2023] NSWCCA 137
- Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286
- R v Watkins [2018] NSWDC 103
- McGory v R [2018] NSWCCA 226
- R v JD [2018] NSWCCA 233
- Kiss v R [2021] NSWCCA 158
- RO v R [2019] NSWCCA 183
- Turnbull v R [2019] NSWCCA 97
- Young (a pseudonym) v R [2021] NSWCCA 163
- Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218
- Kresovic v R [2018] NSWCCA 37
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- R v Duff (a pseudonym) [2021] NSWDC 146