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Giri v The Queen

Giri v The Queen

Case [2022] VSCA 64 8 April 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0031

BAILEY GIRI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2022
DATE OF JUDGMENT:	8 April 2022
DATE OF REASONS:	12 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 64
JUDGMENT APPEALED FROM:	DPP v Giri (Unreported, County Court of Victoria, Judge M Bourke, 28 February 2022) (Sentence)

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CRIMINAL LAW – Appeal – Sentence – Sexual and other offending against children under 16 – Three complainants aged 14 and 15 – Applicant aged 18 to 20 – Full scale IQ of 66 and Autism Spectrum Disorder – Imprisonment for 12 months with conditioned CCO of two years’ duration – Applicant disputed facts in Prosecution Opening – Whether sentencing judge erred in taking disputed facts into account – Applicant wrongly sentenced as serious sexual offender – Leave to appeal granted – Appeal allowed – Sentenced to 40 days’ imprisonment with conditioned CCO of two years’ duration.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Dribbin & Brown Criminal Lawyers
For the Respondent	Mr C B Boyce SC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 17 September 2021, the applicant pleaded guilty in the County Court to one charge of sexual penetration of a child under 16[1] (charge 1), one charge of using a carriage service for indecent communication to a child under 16[2] (charge 2), one charge of sexual assault of a child under 16[3] (charge 3) and one charge of supplying a drug of dependence to a child[4] (charge 4). Shortly after the plea hearing commenced, the judge adjourned the matter and ordered the provision of a report under s 80(3) of the Sentencing Act 1991 (‘the Act’), directed to the applicant’s suitability for a justice plan.
[1]Crimes Act 1958, s 49B(1). The maximum penalty is 15 years’ imprisonment. By virtue of s 49B(3), the standard sentence is 6 years.
[2]Criminal Code (Cth), s 474.27A(1). At the relevant time the maximum penalty was seven years’ imprisonment. It was subsequently increased to 10 years’ imprisonment. See Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (No 70 of 2020), s 3 and Sch 5, item 21.
[3]Crimes Act 1958, s 49D(1). The maximum penalty is 10 years’ imprisonment. By virtue of s 49D(2A), the standard sentence is 4 years.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 71B(1)(b). The maximum penalty is 15 years’ imprisonment.

When the plea hearing resumed on 22 November 2021, the Summary of Prosecution Opening for Plea (‘Prosecution Opening’), dated 25 August 2021, was received as an exhibit (Exhibit A). The judge ordered under s 8A of the Act that Forensicare[5] provide a pre-sentence report, and the matter was again adjourned part-heard.
[5]Victorian Institute of Forensic Mental Health.

The plea hearing resumed on 2 February 2022, but was once more adjourned part-heard so that…

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 Giri v The Queen

Details

AGLC: Bailey Giri v The Queen [2022] VSCA 64
Case: [2022] VSCA 64
Decision Date: 8 April 2022

CaseChat Overview and Summary

Giri was the applicant in the case, appealing against his sentence for sexual and other offences against children under 16 years of age. The three complainants were aged between 14 and 15 years, while Giri was aged between 18 and 20. The appeal was heard by the High Court of Australia. Giri had an IQ of 66 and had been diagnosed with Autism Spectrum Disorder. He was originally sentenced to 12 months imprisonment with a two-year conditional release order. The central issue in this appeal was whether the sentencing judge had erred in considering disputed facts in the prosecution opening. Giri argued that he had not been correctly classified as a serious sexual offender and that the sentence was therefore excessive.

The High Court found that the sentencing judge had erred in taking into account the disputed facts. The Court considered that the sentence was not proportionate to the offence committed and that the sentencing judge had not adequately considered the mitigating factors of Giri's intellectual disability and autism. The Court held that the original sentence was excessive and that Giri had been wrongly classified as a serious sexual offender. The appeal was allowed, and the sentence was reduced to 40 days' imprisonment with a two-year conditional release order. The Court held that the mitigating factors should have been given greater weight, and that the original sentence did not reflect the true circumstances of the case. The decision highlights the importance of properly considering mitigating factors in sentencing, particularly in cases involving intellectual disability and autism.

Orders