| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0126 |
| GIACOMO IERARDO | Applicant |
| v | |
| THE KING | Respondent |
| S EAPCR 2023 0084 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| GIACOMO IERARDO | Respondent |
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| JUDGES: | NIALL, TAYLOR and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 June 2024 |
| DATE OF JUDGMENT: | 16 August 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 181 |
| JUDGMENT APPEALED FROM: | DPP v Ierardo (County Court, Judge Gaynor, 18 April 2023) |
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CRIMINAL LAW – Appeal – Conviction – Rape, common assault, false imprisonment and assault with intent to commit sexual offence – Whether inadmissible opinion evidence of police officer admitted – Evidence admissible either as observation or lay opinion based on observation – Whether prosecutor’s comments inflammatory or intemperate – Prosecutor’s address did not detract from jury’s ability to fairly and dispassionately weigh evidence – Whether combination of errors occasioned miscarriage of justice – Individual complaints without substance – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Total effective sentence 8 years 1 month – 3 years for each rape charge – Whether sentence manifestly inadequate – Sentences for rape charges manifestly inadequate – No basis to exercise residual discretion – Appeal allowed – Respondent re-sentenced.
Criminal Procedure Act 2009, ss 287, 289, 290; Evidence Act 2008, ss 76, 78, 79; Jury Directions Act 2015, s 54D; Sentencing Act 1991, ss 6A, 6B, 6D.
Basic v The Queen (2015) 251 A Crim R 91; DPP v Keller (a pseudonym) [2021] VSCA 334; DPP v Sheppard(a pseudonym) [2021] VCC 1587; DPP vStamper (a pseudonym) [2021] VCC 770; Ludeman v The Queen (2010) 31 VR 606; R v Livermore (2006) 67 NSWLR 659; R v O’Rourke [1997] 1 VR 246; R vVerdins (2007) 16 VR 269, considered.
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| Counsel | |||
| Applicant/Respondent: | Ms C Boston SC with Mr J Murphy | ||
| Appellant/Respondent: | Mr BF Kissane KC with Ms B Goding | ||
Solicitors | |||
| Applicant/Respondent: | Doogue + George Defence Lawyers | ||
| Appellant/Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
TAYLOR JA
BOYCE JA:
Giacomo Ierardo was convicted by a jury of six charges of rape,[1] six charges of common assault,[2] three charges of false imprisonment,[3] and one charge of assault with intent to commit a sexual offence.[4] All of the offending concerned a single victim, AB,[5] a former intimate partner of Mr Ierardo. Following a plea in mitigation of sentence, Mr Ierardo was sentenced to a total effective term of imprisonment of 8 years and 1 month with a non-parole period of 5 years and 6 months.
[1]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[2]Contrary to common law.
[3]Contrary to common law.
[4]Contrary to s 42(1) of the Crimes Act, as amended by the Crimes Amendment (Sexual Offences) Act.
[5]To avoid the possibility of identifying the alleged victim of sexual offences, this judgment has been anonymised by the adoption…
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- AGLC
- Ierardo v The King [2024] VSCA 181
- Case
- [2024] VSCA 181
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether certain evidence, particularly opinion evidence of a police officer, was inadmissible and, if so, whether its admission constituted a miscarriage of justice. The court also needed to assess whether the prosecutor’s comments during the trial were inflammatory or intemperate, thereby affecting the fairness of the trial. Additionally, the court had to examine whether the sentences imposed for the rape charges were manifestly inadequate and, if so, whether there was a basis to exercise the residual discretion to re-sentence.
The court found that the opinion evidence in question was admissible either as an observation or as lay opinion based on observation, thus no miscarriage of justice occurred. Regarding the prosecutor’s comments, the court determined that they did not detract from the jury’s ability to fairly and dispassionately weigh the evidence. The court further held that the sentences for the rape charges were manifestly inadequate and, in the absence of any basis to exercise the residual discretion, allowed the appeal on the ground of manifestly inadequate sentencing. Consequently, the respondent was re-sentenced.
The court refused the application for leave to appeal on the other grounds, and the final orders included the re-sentencing of the appellant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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