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Giacometti v The King

Giacometti v The King

Case [2023] NSWCCA 150 23 June 2023

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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
Devaney v R [2012] NSWCCA 285
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
Kiss v R [2021] NSWCCA 158
Kresovic v R [2018] NSWCCA 37
Lloyd v R [2022] NSWCCA 18
McGory v R [2018] NSWCCA 226
R v Duff (a pseudonym) [2021] NSWDC 146
R v JD [2018] NSWCCA 233
R v Sharrouf [2023] NSWCCA 137
R v Watkins [2018] NSWDC 103
Ragg v R [2022] NSWCCA 150
RO v R [2019] NSWCCA 183
Turnbull v R [2019] NSWCCA 97
Young (a pseudonym) v R [2021] NSWCCA 163

Category: Principal judgment
Parties: Tristan Giacometti (Applicant)
Rex (Respondent)
Representation:
Counsel:
C Akthar (Applicant)
C Curtis (Respondent)
Solicitors:
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:

[2021] NSWDC 146

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…

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 Giacometti v The King

Details

AGLC: Giacometti v The King [2023] NSWCCA 150
Case: [2023] NSWCCA 150
Decision Date: 23 June 2023

CaseChat Overview and Summary

In Giacometti v The King, the appellant faced sentencing for multiple offences committed against his partner, including sexual and violent offences. The appellant entered a late plea of guilty to seven of the charges, while other offences were admitted and taken into account during sentencing. The court also considered other uncharged acts as part of the overall course of conduct, which was described as grave and depraved. The sentencing judge disregarded the subjective case presented by the offender due to perceived inconsistencies in the histories provided to experts, leading to an error in the sentencing process.

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