Giordimania v The Queen

[2020] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

GIORDIMANIA v THE QUEEN

[2020] SASCFC 28

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Doyle and The Honourable Justice Hughes)

27 April 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER

The appellant pleaded guilty to the following offences:

•       count 1: aggravated serious criminal trespass in a place of residence, with a maximum penalty of life imprisonment;

•       count 2: aggravated assault causing harm, with a maximum penalty of five years imprisonment;

•       count 3: aggravated robbery, with a maximum penalty of life imprisonment; and

•       count 4: false imprisonment, being a common law offence with the penalty at large.

In relation to counts 1, 3 and 4, the sentencing judge adopted a notional head sentence of seven years imprisonment.  After a discount of approximately 30 per cent on account of the guilty pleas, his Honour arrived at a sentence of four years and 10 months imprisonment for this offending.  In relation to count 2, the sentencing judge adopted a notional head sentence of 12 months imprisonment.  After a discount of close to 20 per cent on account of the guilty plea, his Honour arrived at a sentence of 10 months imprisonment for this offending.

The sentencing judge ordered that the second sentence be served cumulatively upon the first, resulting in a total head sentence of five years and eight months imprisonment.  His Honour fixed a non-parole period of three years and three months imprisonment.

In this appeal against sentence, the appellant relies upon two grounds, namely that the sentencing judge erred:

1.      in failing to make the sentences wholly concurrent; and

2.      in imposing a sentence that was manifestly excessive, in particular by reason of a failure to give adequate weight to the appellant’s intellectual disability.

Held, per Doyle J (Nicholson and Hughes JJ agreeing), dismissing the appeal:

1.      While the offending formed part of one course of criminal conduct, and there was a degree of overlap between the offences, the overlap was not complete.  The conduct comprising count 2 extended well beyond what was necessary to, or inherent in, the aggravated robbery.  It included violent and threatening conduct which was not only serious but also entirely senseless and gratuitous given that the male victim was bound and lying on the ground.  As such, the sentencing judge was entitled to take the view that this offending added another dimension to the overall criminality that warranted an additional penalty in order to adequately address and achieve the objectives of the sentencing process. 

2.      The starting points of seven years imprisonment for counts 1, 3 and 4, and 12 months imprisonment for count 2 were comfortably within the…