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…
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- AGLC
- Bailey Giri v The Queen [2022] VSCA 64
- Case
- [2022] VSCA 64
- Decision Date
CaseChat Overview and Summary
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.
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