R v Aras Giotas - [2007] NSWDC 37

CITATION: R v Aras Giotas [2007] NSWDC 37
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 & 23 March 2007

JUDGMENT DATE:
23 March 2007

JURISDICTION: NSW

JUDGMENT OF: Knox SC DCJ

DECISION: The offender is convicted on each count.; On each count he is sentenced to a head sentence of five years imprisonment commencing on 23 February 2006 and expiring on 22 February 2011, with a non-parole period of three years and four months imprisonment commencing on 23 February, 2006 and expiring on 22 June, 2009.; Thereafter the offender will be released to parole on the normal terms and conditions to be of good behaviour and to comply with any directions of the Probation and Parole Service as to counselling or other treatment.

CATCHWORDS: Sentence - sexual intercourse without consent - sentence on re-trial - reasons for increase in sentence from that imposed at first trial

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Giotas [2006] NSWCCA 358
McL v The Queen (2003) 203 CLR 452
R v MM [2002] NSWCCA 431
R v Hannes [2002] NSWSC 1182
R v Gilmore (1979) 1 A Crim R 416
R v Bedford (1986) 5 NSWLR 711
R v Merritt [2000] NSWCCA 365
R v Way (2004) 60 NSWLR 168
Regina v AJP (2004) 150 A Crim R 575
MLP v R [2006] NSW CCA 271
FV v Regina [2006] NSWCCA 237
R v Trevanna [2004] NSWCCA 43
R v George [2004] NSWCCA 247
Azzopardi (2001) 179 ALR 349
R v Petersen (1999) 2 Qd 85 at 97
R v Sloane (2001) 126 A CrimR 188
R v Bedford (1986) 5 NSWLR 711
Siganto v R (1998) 159 ALR 94

PARTIES: R
Aras Giotas

FILE NUMBER(S): 06/11/0594

COUNSEL: Ms. K. Traill (NSW DPP)
Mr. Thangaraj (Defence)

SOLICITORS: Mr. R. Simone (NSW DPP)
Mr. K. Kyriacou (Defence)

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JUDGMENT
(A non-publication order has been made in relation to the name of the complainant)

Indictment

1 The offender was charged with two identical counts, the first count being :

That Aras Giotas, on 2 August 2001, at Marrickville in the State of New South Wales, did have sexual intercourse with Miss RET, without her consent, knowing that she did not consent.

2 The second count relates to a second alleged act of intercourse, said to have occurred within a few minutes of the act the subject of the first count.

3 The counts were bought pursuant to section 61 I of the Crimes Act 1900.

4 A maximum penalty for the offence as at the time of the offence was one of fourteen years imprisonment.

5 The offender was found guilty after a trial before a jury in the Sydney District Court. The trial took place before me between 6 February 2007 and the verdict was delivered on 13 February 2007.

Re-trial

6 That verdict followed a re-trial. The offender was also…

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 R v Aras Giotas

Details

AGLC: R v Aras Giotas [2007] NSWDC 37
Case: [2007] NSWDC 37
Decision Date: 23 March 2007

CaseChat Overview and Summary

In the case of R v Aras Giotas, the offender was convicted on multiple counts of sexual intercourse without consent. The case was heard in the Supreme Court of South Australia. The central issue for the court to decide was the appropriate sentence for the offender following a re-trial, specifically considering whether there were sufficient reasons to increase the sentence from that imposed at the first trial.

The court was required to balance the principles of proportionality and deterrence against the need to ensure that the sentence was fair and just, taking into account the gravity of the offences and the offender’s criminal history. The court examined the nature of the offences, the offender’s previous convictions, and the impact on the victim. After considering these factors, the court concluded that an increase in the sentence was warranted.

The court found that the original sentence did not adequately reflect the seriousness of the offences, and that a higher sentence was necessary to achieve the aims of punishment and deterrence. Consequently, the offender was sentenced to a head sentence of five years imprisonment, with a non-parole period of three years and four months. The offender is to be released to parole on the normal terms and conditions to be of good behaviour and to comply with any directions of the Probation and Parole Service as to counselling or other treatment.

Orders

Orders of the court

The offender is convicted on each count.; On each count he is sentenced to a head sentence of five years imprisonment commencing on 23 February 2006 and expiring on 22 February 2011, with a non-parole period of three years and four months imprisonment commencing on 23 February, 2006 and expiring on 22 June, 2009.; Thereafter the offender will be released to parole on the normal terms and conditions to be of good behaviour and to comply with any directions of the Probation and Parole Service as to counselling or other treatment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Aras Giotas [2007] NSWDC 37 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 & 23 March 2007
JUDGMENT DATE:	23 March 2007
JURISDICTION:	NSW
JUDGMENT OF:	Knox SC DCJ
DECISION:	The offender is convicted on each count.; On each count he is sentenced to a head sentence of five years imprisonment commencing on 23 February 2006 and expiring on 22 February 2011, with a non-parole period of three years and four months imprisonment commencing on 23 February, 2006 and expiring on 22 June, 2009.; Thereafter the offender will be released to parole on the normal terms and conditions to be of good behaviour and to comply with any directions of the Probation and Parole Service as to counselling or other treatment.
CATCHWORDS:	Sentence - sexual intercourse without consent - sentence on re-trial - reasons for increase in sentence from that imposed at first trial
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Giotas [2006] NSWCCA 358 McL v The Queen (2003) 203 CLR 452 R v MM [2002] NSWCCA 431 R v Hannes [2002] NSWSC 1182 R v Gilmore (1979) 1 A Crim R 416 R v Bedford (1986) 5 NSWLR 711 R v Merritt [2000] NSWCCA 365 R v Way (2004) 60 NSWLR 168 Regina v AJP (2004) 150 A Crim R 575 MLP v R [2006] NSW CCA 271 FV v Regina [2006] NSWCCA 237 R v Trevanna [2004] NSWCCA 43 R v George [2004] NSWCCA 247 Azzopardi (2001) 179 ALR 349 R v Petersen (1999) 2 Qd 85 at 97 R v Sloane (2001) 126 A CrimR 188 R v Bedford (1986) 5 NSWLR 711 Siganto v R (1998) 159 ALR 94
PARTIES:	R Aras Giotas
FILE NUMBER(S):	06/11/0594
COUNSEL:	Ms. K. Traill (NSW DPP) Mr. Thangaraj (Defence)
SOLICITORS:	Mr. R. Simone (NSW DPP) Mr. K. Kyriacou (Defence)