Gabrieli v The King - [2023] NSWCCA 204

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gabrieli v R [2023] NSWCCA 204
Hearing dates: 28 April 2023
Date of orders: 28 August 2023
Decision date: 28 August 2023
Before: Wright J; Wilson J; Fagan J
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence of 18 years with non-parole period of 13 years – where 36-year-old male applicant committed 19 sexual offences against four female complainants – offending over five months on four separate occasions – highly premeditated use of online dating apps to lure victims to applicant’s residence –complainants were overborne throughout offending – no remorse – no compelling subjective case – sentence not manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

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

Category: Principal judgment
Parties: Rex (Crown)
David Gabrieli (Applicant)
Representation:
Counsel:
E Wilkins SC (Crown)
D Brezniak (Applicant)
Solicitors:
Solicitor for Director of Public Prosecutions NSW (Crown)
Raihani Legal (Applicant)

File Number(s): 2018/265453; 2018/381232
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court Sydney NSW

Jurisdiction:

Criminal

Date of Decision:

22 October 2021

Before:

Judge Noman SC

File Number(s):

2018/265453; 2018/381232

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 22 October 2021 the applicant was sentenced in the District Court for 19 sexual offences committed against four women. In a period of five months between August 2017 and January 2018 he made contact with each of the women through the RSVP and Bumble dating apps. He contrived circumstances to persuade each of the complainants, on separate occasions, to attend at his apartment. Once in the apartment each complainant was subjected to sexual touching in which the applicant persisted over objection. In the case of three of the complainants, the applicant progressed to sexual intercourse without consent. The fourth complainant was able to extricate herself from the apartment without the applicant forcing sexual intercourse upon her, but only after he had detained her for a period with a view to preventing her from making complaint.

The applicant was convicted after a trial conducted in September 2020. He did not acknowledge wrongdoing or show remorse. His subjective circumstances were not significant towards mitigation of penalty.

The applicant was sentenced to an aggregate term of 18 years with a non-parole period of 13 years. The sole ground of appeal was that the sentence was manifestly excessive.

The Court held (Wright, Wilson and Fagan JJ), granting leave to appeal but dismissing the appeal: The sentence was not manifestly excessive.

JUDGMENT

THE COURT: The applicant, known variously as David Gabrieli and Ali Ghedab, seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Noman SC in the District Court at Sydney on 22 October 2021. The sentencing took place after a trial conducted over three weeks in September 2020, at the conclusion of which the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gabrieli v The King

Details

AGLC: Gabrieli v The King [2023] NSWCCA 204
Case: [2023] NSWCCA 204
Decision Date: 28 August 2023

CaseChat Overview and Summary

The case of Gabrieli v The King involved an appellant who was sentenced to 18 years in prison with a non-parole period of 13 years for committing 19 sexual offences against four female complainants. The offending occurred over a period of five months, during which the appellant used online dating apps in a highly premeditated manner to lure the victims to his residence. Each of the complainants was overborne throughout the offending, and the appellant displayed no remorse. The appeal was focused on the sentence imposed, with the appellant arguing that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, given the nature and circumstances of the offences. The court considered the severity and number of the offences, the premeditated use of online dating apps to facilitate the crimes, the overborne nature of the complainants, and the appellant's lack of remorse. The court was also required to assess whether the sentence was proportionate to the gravity of the crimes committed.

The court held that the sentence was not manifestly excessive. It considered that the offending was of a high degree of premeditation and involved multiple victims over an extended period. The court also found that the appellant's use of online dating apps to target and overbear the complainants was a significant aggravating factor. Furthermore, the absence of remorse and the lack of any compelling subjective case in mitigation meant that the sentence was appropriate and proportionate to the gravity of the offences. The court concluded that the sentence reflected the seriousness of the crimes and was not manifestly excessive.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of 18 years with a non-parole period of 13 years was upheld.

Orders