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…

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 Ierardo v The King

Details

AGLC: Ierardo v The King [2024] VSCA 181
Case: [2024] VSCA 181
Decision Date: 16 August 2024

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Ierardo, against the decision of the respondent, The King, in relation to a conviction and sentence. The appellant was convicted of multiple charges including rape, common assault, false imprisonment, and assault with intent to commit a sexual offence. The appeal questioned several aspects of the trial including the admissibility of certain evidence, the conduct of the prosecutor, and the appropriateness of the sentence imposed.

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