Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Giacometti v R [2023] NSWCCA 150 Hearing dates: 7 October 2022 Date of orders: 23 June 2023 Decision date: 23 June 2023 Before: Mitchelmore JA at [1];
Davies J at [2];
Hamill J at [6].Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – sentencing – multiple offences committed on partner – sexual and violent offending – late plea of guilty to seven offences – multiple other offences admitted and taken into account – other uncharged acts – course of conduct grave and depraved – where sentencing Judge disregarded offender’s subjective case due to perceived inconsistencies in histories provided to experts – error established but no lesser sentences warranted – appeal dismissed
CRIMINAL LAW – judgment or remarks on sentence – addressing the offender directly – practice not encouraged – advantages of couching remarks in third person – maintenance of judicial objectivity and disinterest
Legislation Cited: 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 Cited: Bugmy v The Queen (1990) 169 CLR 525; 1990 [HCA] 18
Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218
R v Duff (a pseudonym) [2021] NSWDC 146
Category: Principal judgment Parties: Tristan Giacometti (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
C Akthar (Applicant)
C Curtis (Respondent)
Criminal Defence Lawyers Australia (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/68097; 2019/105445 Publication restriction: There is to be no publication of the name of the victim or any other information which might, directly or indirectly, identify the victim. Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 30 April 2021
- Before:
- Colefax SC DCJ
- File Number(s):
- 2019/68097; 2019/105445
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 30 April 2021 the applicant was sentenced by Judge Colefax SC in the District Court to 14 years imprisonment with a non-parole period of 9 years and 9 months, after entering a late plea of guilty to seven offences committed against his girlfriend over a nine-month period. The offences included one count of sexual intercourse without consent, one count of attempted sexual intercourse without consent, two counts of intentional choking, two…
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- AGLC
- Giacometti v The King [2023] NSWCCA 150
- Case
- [2023] NSWCCA 150
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred on whether the error made by the sentencing judge in disregarding the offender's subjective case resulted in an inappropriate sentence. Additionally, the court considered whether the judge's practice of addressing the offender directly in remarks on sentence was appropriate, and if there were advantages to using the third person instead. The court had to determine whether these issues warranted a lesser sentence for the appellant.
In dismissing the appeal, the court found that while the error made by the sentencing judge was established, it did not warrant a lesser sentence for the appellant. The court held that the error did not affect the overall outcome of the sentencing process. Furthermore, the court noted that while addressing the offender directly in remarks on sentence is not encouraged, it did not find that this practice alone warranted a lesser sentence. The advantages of using the third person in such remarks, such as maintaining judicial objectivity and disinterest, were acknowledged, but not deemed sufficient to alter the sentence in this instance.
The final orders of the court confirmed the dismissal of the appeal, upholding the original sentence imposed on the appellant. The court reiterated the importance of maintaining judicial objectivity and disinterest in sentencing remarks, while also acknowledging the challenges in achieving a perfect balance between addressing the offender and preserving the integrity of the judicial process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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