Giudice v The King - [2023] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0060

GRAHAM GIUDICE	Applicant
v
THE KING	Respondent

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JUDGES:	FERGUSON CJ, EMERTON P and OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2023
DATE OF JUDGMENT:	8 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 105
JUDGMENT APPEALED FROM:	[2023] VCC 500 (Judge Dean)

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CRIMINAL LAW – Leave to appeal – Sentence – Intentionally causing serious injury – Contravening family violence intervention order – Damaging property – Serious violent offender – Borderline personality disorder – Whether sentencing judge failed to give appropriate weight to adverse effect of imprisonment on applicant’s mental health – Leave to appeal refused.

Brown v The Queen (2020) 62 VR 491; R v Verdins (2007) 16 VR 269, discussed.

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Counsel
Applicant:		M Turner
Respondent:		K E Judd KC with R L Harper
Solicitors
Applicant:	Rolfe Criminal Law
Respondent:	A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

The judge’s reasons

Borderline personality disorder

The effects of imprisonment

Conclusion

FERGUSON CJ
EMERTON P
OSBORN JA:

Introduction

For a period of approximately 15 months up until April 2020, the applicant was in an intimate relationship with a young woman (Ms A). On 26 May 2020, a family violence intervention order was issued by Magistrate Aumair in the Bendigo Magistrates’ Court in order to protect Ms A from the applicant.
On the evening of 23 January 2021, after consuming alcohol, Ms A requested the applicant to drive her together with a friend home to Ms A’s house. In the early hours of the morning of 24 January 2021, and after Ms A had gone to bed, the applicant became enraged as a result of reading text messages he found on Ms A’s phone.
The applicant then slammed through Ms A’s bedroom door. This is the basis of charge 1 (damaging property). He then accused her of having lied to him and assaulted her brutally. The assault forms the bases of charge 2 (intentionally cause serious injury) and charge 4 (contravention of family violence intervention order intending to cause harm or fear for safety).
The details of the applicant’s conduct founding charges 2 and 4 were as follows. The applicant first got on top of Ms A and told her he had read the names of other men in text messages she had sent. He then punched her multiple times in the face and called her a liar. He twisted her wrist with significant force, punched her repeatedly and pushed her off the bed onto the floor. He then again got on top of Ms A, strangled her to the point she could not breathe and again repeatedly punched her to the face, stomach and head.
As a result of the attack, Ms A suffered multiple injuries including fractures to the orbits of the right and left eye sockets and to the nose. The fracture to the right eye socket comprised a large comminuted fracture to the floor of the eye socket with…

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 Giudice v The King

Details

AGLC: Giudice v The King [2023] VSCA 105
Case: [2023] VSCA 105
Decision Date: 8 May 2023

CaseChat Overview and Summary

The applicant, Giudice, sought leave to appeal against his sentence following a conviction for intentionally causing serious injury, contravening a family violence intervention order, and damaging property. The case was heard in the Court of Appeal. Giudice contended that the sentencing judge did not adequately consider the adverse effects of imprisonment on his mental health, specifically his borderline personality disorder. The Crown argued that the sentence was appropriate given the severity of the offences.

The court needed to determine whether the sentencing judge appropriately balanced the need to protect the community with the potential harm to the applicant’s mental health. It examined the principles guiding sentencing for violent offenders and the relevance of mental health conditions in determining a suitable sentence. The court considered precedents, including Brown v The Queen and R v Verdins, which address the impact of mental health on sentencing.

The court found that the sentencing judge had adequately considered Giudice’s mental health and its impact on his capacity to manage his behaviour. It held that the judge appropriately weighed the severity of the offences against Giudice’s personal circumstances, including his mental health condition. The court concluded that there was no basis to grant leave to appeal, as the sentence was within the appropriate range and did not constitute a substantial miscarriage of justice.

Orders