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Court of Criminal Appeal 28 August 2023

Gabrieli v R

[2023] NSWCCA 204

Sexual offences
CRIME APPEALS PAROLE PERIOD OF 13 YEARS WHERE 36 YEAR NO REMORSE

Citation: Gabrieli v R [2023] NSWCCA 204
Court: Court of Criminal Appeal, New South Wales
Date: 28 August 2023
Judges: Wright J; Wilson J; Fagan J

Background

The applicant, a 36-year-old man, was convicted after a jury trial in September 2020 of 19 sexual offences against four women. The offending occurred across four separate occasions over approximately five months between August 2017 and January 2018. The applicant used online dating apps, RSVP and Bumble, to make contact with each complainant, presenting himself falsely as a doctor and using photographs that did not accurately depict him.

On each occasion, the applicant contrived arrangements that brought the complainant to his apartment, where he subjected each woman to multiple sexual offences. Three complainants were subjected to sexual intercourse without consent. The fourth was able to leave before intercourse occurred, but only after the applicant detained her to prevent her from making a complaint. In each case, the applicant persisted with the offending despite the complainant's objections.

On 22 October 2021, the District Court imposed an aggregate sentence of 18 years imprisonment with a non-parole period of 13 years, commencing from the date of the applicant's arrest on 29 August 2018. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal on the sole ground that it was manifestly excessive.

  • Whether the aggregate sentence of 18 years with a non-parole period of 13 years was manifestly excessive in all the circumstances.

Decision

The Court granted leave to appeal but unanimously dismissed the appeal, finding that the sentence was not manifestly excessive.

The Court described the totality of the offending as a concerted campaign of predatory sexual abuse. The applicant had deliberately and methodically used dating apps to lure four women to his apartment, where he exploited his physical size and the arrangement of his furniture to disempower each complainant. The Court noted that the use of force varied across individual offences, but that each complainant's perception that resistance would be futile was rational and entirely understandable.

The applicant's subjective circumstances offered little by way of mitigation. He expressed no remorse, did not acknowledge wrongdoing at any stage of the criminal proceedings, and presented no compelling personal factors. The Court characterised his conduct as treating each complainant purely as an object for his own sexual gratification, in complete disregard of their rights and welfare.

Citing the High Court's statement in Dinsdale v The Queen (2000) 202 CLR 321 that manifest excess is a conclusion rather than a finding of specific error, the Court held that this sentence was neither unreasonable nor plainly unjust. The sole ground of appeal was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of 18 years with a 13-year non-parole period for 19 sexual offences committed against four complainants in a premeditated pattern of offending was not manifestly excessive.
  • Manifest excess, as reaffirmed by reference to Dinsdale v The Queen, is a conclusion about whether a sentence is unreasonable or plainly unjust. It does not require identification of specific error in the sentencing judge's reasoning.
  • Highly premeditated conduct, including the deliberate use of deception on dating apps and the physical manipulation of the offending environment, was treated as a significant aggravating feature of the objective seriousness of the offending.
  • An absence of remorse, a failure to acknowledge wrongdoing throughout criminal proceedings, and an absence of compelling subjective circumstances collectively left little scope for mitigation and supported the sentence as appropriate.
  • Victim impact, including immediate fear and degradation as well as lasting psychological harm described in two victim impact statements, was taken into account by the sentencing court, even where a formal finding of substantial harm under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not made.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L (indecent assault), 61I (sexual intercourse without consent), 86(1)(b) (detention without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54