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Pizzimenti v The Queen

Pizzimenti v The Queen

Case [2017] NSWCCA 231 27 September 2017

Sentencing

Breach of Trust

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Pizzimenti v R [2017] NSWCCA 231
Hearing dates: 24 May 2017
Decision date: 27 September 2017
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
McCallum J at [3]
Decision:
Leave to appeal refused

Catchwords: CRIME – appeals – sentence – whether manifestly excessive – plaintiff pleaded guilty to 13 child sexual assault offences – whether sentencing judge erred in not specifying which indicative sentences to be served concurrently and which to be accumulated and to what degree when imposing aggregate sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW),
ss 44(2), 53A
Cases Cited: Kerr v R [2014] NSWCCA 235
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
PWB v Regina (2011) 216 A Crim R 305; [2011] NSWCCA 84
R v Brown [2012] NSWCCA 199
R v Ellis (1986) NSWLR 603
R v Nykolyn [2012] NSWCCA 219
R v SJH [2010] NSWCCA 32
R v Smith [2003] NSWCCA 353
Category: Principal judgment
Parties: David Pizzimenti (applicant)
Regina (respondent)
Representation: Counsel:
G Gillett (applicant)
S Dowling (respondent)
Solicitors:
Macedone Legal (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2015/177510
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Crime

Date of Decision:

19 July 2016

Before:

Bennett SC DCJ

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of McCallum J in draft. I agree with the order proposed by her Honour and with her Honour’s reasons.
HOEBEN CJ at CL: I agree with McCallum J.
McCALLUM J: David Pizzimenti seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to 13 child sexual assault offences. The offences were historical. They were committed against a family member in the late 1980s and early 1990s when the applicant was aged in his late 20s and early 30s. The victim was 20 years his junior and was aged between 8 or 9 and 13 years at the time of the offences. The applicant was aged 57 years by the time he was sentenced. The conduct for which he was sentenced included requiring the victim to masturbate him (four counts), requiring her to perform fellatio on him (two counts), three counts of cunnilingus, one count of penile/vaginal intercourse (without full penetration) when the girl was aged 10 years and three other indecent acts.
The applicant pleaded guilty but not at the earliest opportunity; the pleas were entered when he was arraigned on indictment in the District Court. The judge allowed a discount of 15% to reflect the utilitarian value of the plea. In addition, 5 of the 13 charges were based on misconduct not complained of by the victim but disclosed by the applicant during the course of the investigation. In respect of those matters, the judge determined that the applicant was entitled to an Ellis discount in the order of 15% giving a combined discount…

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 Pizzimenti v The Queen

Details

AGLC: Pizzimenti v The Queen [2017] NSWCCA 231
Case: [2017] NSWCCA 231
Decision Date: 27 September 2017

CaseChat Overview and Summary

The matter before the court involved a criminal appeal by the defendant, Pizzimenti, against the sentence imposed by the primary judge. Pizzimenti had pleaded guilty to thirteen offences of child sexual assault. The defendant argued that the aggregate sentence imposed was manifestly excessive and that the sentencing judge had erred in not specifying which indicative sentences were to be served concurrently and which were to be accumulated, and to what degree, when imposing the aggregate sentence. The appeal was heard by the Full Court of the Federal Court of Australia.

The legal issues before the court were whether the aggregate sentence imposed by the primary judge was manifestly excessive and whether the sentencing judge had erred in not specifying which indicative sentences were to be served concurrently and which were to be accumulated, and to what degree. The court was required to examine the primary judge's sentencing remarks, the principles of sentencing for cumulative offences, and the relevant case law to determine whether the sentence was appropriate and whether there had been an error in the imposition of the sentence.

The Full Court found that while the aggregate sentence imposed was indeed high, it was not manifestly excessive. The court noted that the primary judge had considered the cumulative effect of the offences and had imposed a sentence that reflected the gravity of the crimes. The Full Court also found that there had been no error in the primary judge's approach to the sentencing, as the judge had clearly considered the relevant principles and had exercised their discretion appropriately. The court held that the sentence was not manifestly excessive and that there had been no error in the imposition of the sentence.

The appeal was dismissed, and the original sentence was upheld. The Full Court confirmed that the sentence imposed by the primary judge was appropriate and that there had been no error in the approach to sentencing. The defendant's appeal was unsuccessful, and the original sentence was maintained.

Orders