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)

- 39 -

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 convicted following an earlier trial in July, 2005. He was sentenced by Judge Greg Woods QC to a sentence of 4 years and 6 months total term with a non-parole period of 2 years and 3 months.

7 The conviction following that trial was set aside by the Court of Criminal Appeal – R v Giotas [2006] NSWCCA 358.

8 There was no appeal against sentence either by the Crown or the offender.

Conduct of proceedings: original trial and re-trial

9 The transcript of that first trial was tendered in these proceedings. Ms RET (‘the victim’) was cross-examined by Mr Lloyd QC, counsel for the offender on the first trial over three days, 25, 26 and 27 July, 2005. Miss RET was also cross-examined over several hours over two days on the re-trial before me.

I will refer to the evidence she gave elsewhere in these remarks.

10 The offender did not give evidence in the first trial. He gave evidence on the re-trial and was cross-examined.

11 The jury’s verdict on the second trial was returned after a little over 2 hours deliberation including an overnight break. The jury in the re-trial retired at 12.42 pm and returned its verdict at 4:22 pm.

Sentence proceedings

12 After the jury had delivered its verdict, brief submissions were made by each party in relation to the fact the sentence would be proceeding following a re-trial.

13 Over the intervening period, I sent to the representatives of each side an email requesting short dot-point submissions on the range of criminality, what would be the result in the event that a finding of criminality was higher and in particular, whether that constituted a circumstance permitting a different sentence and matters relating to the independent sentencing discretion. A copy of the email became exhibit S3.

Counsels’ submissions are exhibits S4 and S5.

Background and findings of fact

14 I find that on the evidence and consistently with the jury’s verdict the following:

15 The victim, Ms RET, worked for the offender as a receptionist in his real estate agency in Marrickville in Sydney. She had been working there since February, 2001.

16 On Thursday, 2 August 2001, at about 11 am, the offender telephoned her while she was at work. He asked her to meet him at another address as he wanted her to take a contract to a solicitor's firm. He also asked her to bring a pack of cigarettes to him saying that he would repay her when she arrived.

17 When she arrived at the premises in Marrickville Road to which he had directed that she come, she observed him either standing at or leaning out of a window.

18 Ultimately she followed him upstairs into an apartment. He invited her into an adjoining room which was clearly a bedroom. There was an un-made bed in the room. The offender was wearing a T-shirt and boxer shorts.

19 The offender asked her to sit on the bed next to him and she did so. She said that she sat halfway down the bed apparently some short distance from him – it seems about 50 cms.

20 There was a discrepancy between the victim and the offender as to what then happened. What is clear is that sexual intercourse occurred.

Issue

21 The Crown case was that it was a violent episode with two acts of penetration. The offender’s case is that the intercourse was consensual.

22 The victim gave evidence that she was grabbed by the hair and pushed onto her back on the bed and her stockings and underpants ripped down. She was saying ‘stop it, stop it, I don’t want to do this’ and ‘no’.

23 She said that the offender was holding her by her hair (which was long to her waist), bunching her hair in a fist and pulling her back. He was pressing down against her and pulling at her stockings and ripping them. He started kicking at her stockings with his feet.

24 The victim said that the offender got on his knees between her legs, pulled his shorts down and forced himself into her, pushing his penis into her vagina. She said that he was not wearing a condom.

25 She was trying to kick with her legs and was wriggling. He was pressing his shoulder against her face. Every time she got her mouth free from his shoulder she shouted ‘stop it’.

26 The offender ejaculated inside her vagina. She said that his penis was in her vagina for about 5 or 10 minutes. What occurred was very rough, he was pushing hard and it was extremely painful.

27 A few minutes later, he turned her onto her back from which position the offender again penetrated her. She felt as though she was going to suffocate. She felt some wetness on her back and assumed that he had again ejaculated. He then told her to get dressed.

28 During the course of what occurred, he was saying ‘you like this don’t you, you like being fucked’. She couldn’t speak because her face was still pressed into the pillow.

29 After what occurred he said to her “You’re not going to tell anyone about this are you?” He then said ‘That’s good, I’m going to look after you’.

30 As a result of what occurred, the victim said that she was bleeding from her vagina and suffered pain to her shoulder, abdomen and thighs. The offender twisted her nipples, they were sore and scratched up. There were scratches, bruises and blood. She also suffered grazing to her vagina.

Medical evidence: Dr Larsen

31 Those physical matters were corroborated by Dr Larsen, a doctor who examined her at the Royal Prince Alfred Hospital the following night and into the early hours of the morning after.

32 After receiving the history of the incident, the Doctor physically examined Ms RET.

33 Dr Larsen observed tenderness on the left side of the head in the middle and towards the back (T74 L13). She noticed tenderness around the nipples and also about the lower ribcage on the sides as well as tenderness across the lower abdomen (T74 L39). There was tenderness over the back of the right shoulder, and a little bit over the back of the right shoulder blade, and quite a bit across the lower lumbar area, just above the buttocks, especially on the right (T74 L54).

34 Upon examination of the genital region, Dr Larsen noticed there was a graze at the entrance to the vagina. The graze was a disruption to the skin at the surface of the skin (T75 L13). There was tenderness over the mons pubis and at the entrance to the vagina as well (T75 L18).

35 The inner thighs were very tender. The area around the anus and the urethra were normal (T75 L23). There was some bleeding coming from the vagina, but not from the opening, and because she was quite tender and because there was bleeding. A vaginal speculum examination was performed, to check where the bleeding was coming from. That showed some dark brown blood from the cervix and some clear fluid as well (which may have come from the ovaries or uterus). When the uterus was examined internally, the uterus and the area at the sides of the uterus were quite tender as well (T75 L27).

36 Forensic samples were then taken.

Events following

37 After the incident, the victim went to the toilet of a nearby hotel and attempted to stop the bleeding from her vagina. She said that there was a fair bit of blood on her underpants, her stockings and on her leg. She tucked her torn stockings into her pants and then went back to the real estate agency and remained there for some time.

38 Ms RET didn’t tell anyone at work about what had occurred. She was aware that most were friends/employees of the offender. She was afraid to tell them because they all knew each other and not her. She then rang the Rape Crisis Service but there was an answering service on and she did not leave a message.

39 She then went home where she remained overnight. The following day she went back to the office and collected her possessions. She did not return to the real estate agency thereafter nor did she have any contact with the offender nor he with her.

40 Ms RET ultimately saw her own doctor. Following discussions with her, the victim made a complaint to the police on 19 January, 2002.

Parties

41 Ms RET was 20, almost 21 at the time of the incident.

42 The offender was aged 31. He was a Justice of the Peace. He was a businessman, a partner and part-proprietor of the real estate agency in which the victim was employed.

43 He remained working in the business until the partnership was apparently severed in about 2003 – some two years after the incident. His former business partner gave evidence at the trial.

Victim

44 Ms RET gave evidence in which the impact of the incident on her. That impact was still apparent while she gave her evidence after a period of some 6 and a half years had elapsed since the incident.

45 For a period of at least 12 months or more following the incident, the victim was unemployed. She attempted to obtain employment and obtain social security benefits through the Centrelink office and ultimately was assisted by her own GP in making a claim for worker’s compensation.

46 The relationship she had at the time of the incident with her then companion - with whom she was then living - finished. She said that she did not feel as though she was able to have a relationship after what had occurred (T31-7207).

47 She also had the painful experience of undergoing the administration of the Sexual Assault Investigation Kit and the associated medical procedures involving a vaginal speculum examination in the day following the incident.

Cross-examination during the trials

48 The course of cross-examination in both the original trial and the re-trial was clearly upsetting and, in some areas, traumatic for Ms RET.

49 The cross-examination, which obviously proceeded on the basis of the offender’s specific instructions, included cross-examination as to her prior usage of heroin, her pursuit of the methadone programme, an earlier and isolated conviction for shop-lifting and an associated giving of a false name and her financial motivation for continuing with the matter.

Offender’s evidence

50 The offender exercised his right to go to trial and to give evidence – despite a contrary course clearly being the course pursued in the first trial when the offender was represented by very experienced senior counsel.

51 Counsel at the trial before me indicated that the offender had indicated his specific instructions that he wished to give evidence.

52 The crucial evidence ultimately was in my view, in most respects unbelievable, and in some areas, fanciful. It made no real attempt to explain the independent corroborative medical evidence. The offender’s account was relatively quickly – and in my view, rightly - disbelieved by the jury.

53 Judge Greg Woods QC of this court indicated in his remarks on sentence that he agreed with the jury’s verdict.

Finding

54 I accept the victim’s evidence on what matters were in dispute. I had the advantage of watching and hearing her giving evidence as well as hearing the corroborative evidence of Dr Larsen.

55 I find that the two acts of intercourse were non-consensual and that that lack of consent must have been clear to the offender.

56 I accept the complainant’s evidence that the intercourse which took place was very rough and painful to her in circumstances which were sudden, frightening and where she was alone and isolated.

57 I also accept her evidence as to the sequela in terms of the cessation of her employment, her subsequent unemployment, her capacity to earn and receive income, the cessation of her relationship and her capacity and desire to maintain a relationship.

Evidence on sentencing proceedings

58 The offender did not give evidence on the sentencing proceedings.

Pre-sentence report

59 A copy of the pre-sentence report dated 23 September 2005 and prepared by Ms Amanda Cremer of the Probation and Parole Office attached to the Silverwater Parole Unit was tendered.

60 That report contained the notation that Mr Giotas maintained his innocence in relation to the matters which he described then as “definitely consensual”. He reiterated the comments that the victim had “flirted with him” and also alleged that the victim had maliciously fabricated the matter for financial gain.

61 A summary of the NSW Police Service list of prior convictions was tendered (exhibit S1).

62 That showed that the offender had prior convictions for contravening an apprehended violence order in July 1998 as well as May 1999. He was placed on a recognisance in relation to the first contravention and fined in relation to the second contravention.

63 He also was convicted of the charge of common assault in July 1998 which appears to have arisen out of the same incident. In relation to that conviction he was fined $700.

64 There was a mid-range PCA offence in 1998.

65 The only other relevant matter is a conviction for assaulting a Police Officer in October 2003 which post-dated the facts of this particular offence.

66 During the trial, some attempt was made by Counsel for the offender to distinguish the offender’s prior convictions from the facts of the incident which was the subject of the trial on the basis that those were crimes of violence whereas this was a sexual assault. In my view that distinction in these circumstances is a distinction without a difference. A crime of sexual assault is essentially an act of violence within a sexual context. The offences involving the offender’s former wife were also acts of violence as was his assault on persons to whom she was related.

67 Those offences pre-dated this offence by a relatively short period of time.

68 In my view, the offender’s prior convictions do not establish that he is entitled to any particular leniency on sentence in this regard. Moreover, the prior record on the matters I have outlined indicates an attitude existing at the time of the offence to the treatment of women with whom the offender had an emotional, familial or employment connection which should be the subject of a specific deterrent penalty. I also make it clear that I am not treating this as an aggravating factor on sentence.

Rulings during trial

69 I did not permit cross-examination of the offender as to his prior convictions on matters of breaches of domestic violence orders and assaults essentially because of the prejudicial impact that may have had on the jury.

70 There was an attempt by the Crown to serve and rely on a tendency notice during the trial. That was based on an incident said to have occurred in 2000 which was said to have involved another employee of the offender, Ms VA, and an episode in that person’s home to which the offender had gone. The offender allegedly phoned Ms A on the evening of 11 March 2000 at her home in Five Dock where she was alone, and informed her he was coming over for coffee.

71 Ms A alleged that at the premises, the offender made a number of verbal and physical sexual advances to her attempting to grab her and force her down on her back to have sexual intercourse with her. This behaviour resulted in her sustaining bruising to various parts of her body. She was, however, able to resist his attempts and no intercourse occurred.

72 Ms A asserted that she did not report the matter because of the long term family ties that existed between the two and she felt embarrassed and psychologically affected.

73 I did not permit the Crown to lead that evidence in the trial because of the highly prejudicial nature of both the contents of the notice and the evidence, particularly given the circumstances where there was no clear evidence as to why that earlier complaint had not proceeded, where there had not been a conviction and also given the late notice to the accused.

74 The allegations the subject of these rulings are not relevant in these proceedings and I do not take them into account. They are set out following the submission on behalf of the offender that there should not be a perception of an element of retribution following a successful appeal – see below para 133 ff.

Offender’s submissions

75 Counsel for the offender submits that the findings of Judge Woods QC were correct and are equally applicable to the evidence in the second trial. He submits that I should consider McL v The Queen (2003) 203 CLR 452 especially 459, 475, and 494-500.

76 It is further submitted that the obiter of McL was not considered by the Court of Criminal Appeal in R v MM [2002] NSWCCA 431.

77 Counsel for the offender also submits that the decision of Justice Bruce James in R v Hannes [2002] NSWSC 1182 at [79]-[84] are to the effect that a heavier sentence would be open if a trial Judge considered that:

(a) the first sentence was so manifestly inadequate that a Crown appeal would have been successful;
(b) there were new, significantly different facts;
(c) the first judge made a significant and specific error.

78 Inferentially counsel submits that none of those matters are relevant here.

79 It is further submitted that in these circumstances none of those factors would result in a heavier sentence being open to me. Counsel urges the view that the sentence that that offender received on the last occasion should be the ceiling of the second sentence.

Sentence on re-trial: Law

80 As a general principle the sentence passed upon an offender after a re-trial should not be greater than that passed originally – R v Gilmore (1979) 1 A Crim R 416 – per Street CJ. However, the second sentencing court is entitled to increase the sentence where the court believes the circumstance of the case calls for a longer sentence – although there is a requirement that the court should indicate specifically why this course is appropriate – R v Bedford (1986) 5 NSWLR 711.

81 The matter has also been considered in R v Merritt [2000] NSWCCA 365 as well as R v MM [2002] NSWCCA 431.

82 In R v MM the Court of Criminal Appeal (per Levine J) said (at [30]) that the authorities confirm the discretion which reposes in the sentencing Judge after the re-trial to make an independent assessment as to the appropriate punishment as follows:

“The authorities confirm the discretion which reposes in the judge sentencing after the retrial to make an independent assessment as to the appropriate punishment.”

83 My understanding of the authorities is that I am not in the situation of an appellate court considering whether there is or is not manifest inadequacy in the sentence. I am exercising a separate and independent sentencing discretion as part of which I need to have regard to the sentence imposed following the first trial. In the event that there is a change to the sentence imposed on the first trial, I am required to explain why, in my view, there are good reasons for an increase on the sentence previously imposed.

Reasons for increase in sentence from that imposed at first trial

84 Here, I so find for the following reasons:

1. My finding as to the criminality involved is different from that of Judge Woods QC and is based on the evidence before me.
2. The sentence originally imposed does not, on the evidence in the trial before me and the sentencing proceedings, meet the objectives of sentencing.
3. My assessment of the evidence of the offender. Such evidence was not given before Judge Woods QC.

Range of criminality

85 His Honour Judge Woods QC stated (at pages 5 and 6) the following:

“The offence is one which in all the circumstances calls for nothing other than a sentence of full-time custody. It is a serious offence but it does not fall within the higher regions of the conduct which represents this offence. Rather it is towards the middle lower end.”

Law

86 Recent decisions of the Court of Criminal Appeal which have involved a consideration of what constitutes mid-range of criminality have frequently been in the context of what is in the mid-range of objective seriousness in connection with the relevance of standard non-parole periods – see R v Way (2004) 60 NSWLR 168, Regina v AJP (2004) 150 A Crim R 575 and MLP v R NSW CCA 271.

87 The approach to be adopted was set out in R v Way (op cit) at [118].

"(i) the objective seriousness of the offence considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1)."

88 Relevant factors, which are clearly not exhaustive, which are referred to in those decisions include matters such as whether the act was committed as part of a pattern or history of abuse - R v AJP at [20] – the age and relative maturity of the victim and her capacity to protest – FV v Regina [2006] NSWCCA 237 at [59].

89 That may have been an appropriate finding on the evidence before His Honour and the matters which he referred to as ‘all the circumstances’. It is not an appropriate finding on the evidence before me and the circumstances which I will detail below.

Consideration of matters relating to assessment of criminality

90 This sexual assault took place in circumstances where the victim had responded to an instruction from her employer to bring her messages (on his evidence) or a contract (on her evidence) as well as to bring him cigarettes. Whatever the precise reason, she attended to deliver work documentation, pursuant to his specific instructions, communicated to her at a time when she was at work and when she considered that she was obliged to comply with his instructions. She sat where she sat at his invitation or direction at a time when he wanted to talk to her about her place of employment in a manner which had made her concerned about whether her job security was in issue.

91 The incident was clearly premeditated and planned. That planning extended to the way the offender called the victim and then called her back, at her place of employment, to ensure she could organise a replacement.

92 Her hair was twisted behind her back bunched up in the offender’s wrist, pining her to the bed. Her clothing and underclothing was ripped from her or down her body.

93 She was then raped. Twice. What occurred was painful. It was squalid. It was frightening. It was a gross breach of trust owed by an employer to a young employee.

94 This offence took place when the victim was a young employee who was specifically instructed to come to the scene of the crime by her employer. She was entitled to trust him. He abused that trust, suddenly, violently, without warning to her and without her having any opportunity to escape.

95 There was a considerable disparity between the offender and the victim in terms of power and authority, age, life experience as well as in physical terms, height and weight.

96 The Crown submitted in the trial that the victim was “lured” to the flat where the assault took place where she was on her own and essentially defenceless. In my view having heard the evidence and observed the witnesses, that was an accurate description.

97 The scene of the assault was an isolated first floor flat with which the offender was familiar and where he had been sleeping the night before. The victim was not only not familiar with the premises, she had not been to them before. The offender led her upstairs indicating that she should be quiet. The photographs tendered show the nature of the doorway and laneway into which the victim was directed to come by her employer.

98 There was clearly some planning and premeditation involved in inviting the victim to the specific premises on the basis that she was to bring with her work documentation. The offender rang her twice at her work place. It was not opportunistic nor the basis of a temporary aberration.

99 The evidence of the offender – in particular, that he thought the victim had been flirting with him previously - was fanciful. That was not observed by others at the firm – see, for example, the evidence of Mr Ford (first trial 28 July, 2005 at 146).

Q. Did you ever notice that she had any social contact with the accused?
A. None at all. (T 7/2/07 p 91 line 54-56)

100 The offender said that some months prior to the offence, he had driven her on one occasion following a work auction. That sees to have been the extent of the contact between them on which the offender was basing his opinion.

101 After the assault the offender said to her (which I accept and find he said) words to the effect that ‘You’re not going to say anything about this to anyone are you”. The offender said that he told her at the conclusion of the incident and before she left, that he was not interested in a relationship.

102 Given the venue (to which the victim had never been before and with which she was completely unfamiliar), the hour of the day (about 11 am), the presentation of the parties at the time (the offender with his appearance dressed as he was in boxer shorts and T-shirt) the absence of any evidence of prior, non-work related contact let alone involvement, the sequela and the absence of any contact between the parties of the kind that might have been expected had the offender’s account been true, that evidence (and apparent underlying belief of the offender which continued to the second trial) is simply not credible - in my view, to the point of being delusional.

103 In my view the offender’s account of what occurred was neither credible nor consistent with the medical evidence, the evidence as to state of the victim’s clothing as well as the evidence of what she was like when she returned to work or the following day and evening during her medical examination.

104 To me much of the offender’s evidence had the hallmarks of something being made-up during the course of his cross-examination.

105 The victim was then a young woman, not then 21, who did what she was told to do in a situation where she was attempting to maintain her employment. The evidence was that she had left her environment in Canberra to leave the particular personal circumstances in which she had found herself. She had found a job in Sydney. She was trying to get business qualifications in the real estate industry.

106 I also accept her evidence and the corroborative evidence from Dr Larsen in terms of the medical report that she suffered the tenderness and soreness and subsequent bruising to her head and shoulders, her nipples, her lower rib cage, her thighs, and the back of her body, as well as the grazing to her vagina.

107 It is clear that she was also bleeding from her vagina as a direct result of this incident. It is clear that there was unprotected sexual intercourse.

108 The offender’s proffered explanation in relation to how these independent matters occurred, essentially that the sexual contact was passionate, was particularly unconvincing.

109 The victim gave evidence that she was fearful of the offender. She returned to the office and left that afternoon returning the next day to collect her things never to return again.

110 The injuries caused to the victim were substantial and continuing. I have set out the physical injuries. The emotional and psychological injuries were also evident in terms of the loss of her relationship, indeed, her desire to have a relationship and her inability to obtain social security benefits and the associated hardship which she experienced for some time after the assault.

Findings : Mid range of criminality

111 Given those matters, the findings of the earlier judge as to the level of criminality being of the order of middle to low range do not reflect my assessment of the evidence I have heard.

112 In my view, the appropriate range of criminality is at least of mid-range.

Purposes of sentencing

113 I also do not consider that the sentence imposed meets the prescribed objectives of sentencing which section 3A of the Crimes (Sentencing Procedure) Act provides as follows:

“The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
to recognise the harm done to the victim of the crime and the community.”

114 Against the background of all the matters I have referred to above, in my view a sentence of four years and six months imprisonment with two years and three months non-parole imprisonment, on the basis of the evidence before me:

(i) does not reflect the need for adequate punishment. It was in my view, a lenient sentence when the facts and the offender’s record and attitudes to the victim and what occurred do not call for leniency;

(ii) does not act as a deterrent for employers who might act in these particular circumstances towards young and vulnerable employees in the course of their duties;
(iii) does not protect the community from a person who does not and has not accepted the verdict of two juries as to what he has done and who has maintained an attitude of self-confidence bordering on the delusional;
(iv) does not promote any kind of realistic thinking and self-analysis which, for a person of this offender’s obvious intelligence, must be the precursor for rehabilitation;
(v) does not sufficiently denounce the conduct of the offender nor recognise the harm done to the victim of the crime nor to the community. In that regard, young and junior employees as well as parents and families of young employees – as well as fellow employers as in the position of Mr Ford in this case – must be able to rely on there being sufficient sanctions to dissuade the kind of gross breach of trust which occurred here.

Conclusion on first sentence imposed

115 For all these reasons, in my view the sentence imposed does not reflect the criminality of what has happened in the circumstances of this case nor the range of criminality which I have found to be appropriate. It also does not take into account the evidence of the offender given at this trial both in chief and in cross-examination as well as his presentation, when viewed against the background of the remainder of the evidence given in the trial before me. Both are matters which were not available to the sentencing judge in the original trial.

Aggravating/Mitigating factors: s21A Crimes (Sentencing Procedure) Act

116 I turn then to the factors relevant to the sentence which in my view should have been imposed. Without reiterating all the factors I have set out above, in my view the following matters are relevant:

Aggravating factors

117 As I have said, in my view this offence was the result of planning and premeditation – albeit probably limited to the morning of the offence. However, what occurred was thought out. It involved the two telephone calls that it did to the most junior member of the offender’s firm who was anxious to maintain her employment and, as was known to the offender, to have a career in the offender’s profession. Those calls established a pretext for the offender’s instructions that the victim attend where she did. It was not purely opportunistic.

118 It involved an assault on an employee of the offender in circumstances of her employment. While there were no direct threats involved, an employer saying to an employee after such an incident “You’re not going to say anything to anyone about this are you” has a different and serious connotation in relation to long term consequences.

119 Having reviewed the medical evidence of Dr Larsen, I am not satisfied that the level of injuries suffered bring this matter into the high range of offences nor are such as to warrant the injuries, serious as they were, being considered as an aggravating factor.

120 I have earlier dealt with the offender’s prior relevant convictions which, although they are indicative of an attitude as I have outlined, are not such, in these circumstances as to be regarded as an aggravating factor.

Rehabilitation and remorse

121 Put on the offender’s behalf is that there are prospects of rehabilitation. I do not see those prospects established on the evidence before me nor do I see any indications of remorse either in the way he gave evidence at the trial nor in the subsequent sentencing proceedings. Indeed, the offender’s evidence in chief (which was very short : T 48 - 50) did not include any statement of his belief in the victim’s consent. That was a matter which was ultimately the subject of cross-examination by the Crown Prosecutor.

122 The offender said to Amanda Cremer of the Probation and Parole Office that although he was willing to comply with counselling programs or programs addressing his offending behaviour he thought his participation would be ineffectual because he stated that “I can’t reform from something I didn’t do”.

123 The first day of the trial was adjourned prior to the jury being empanelled because the Crown informed the court that the victim was considering whether or not to proceed with giving evidence – an understandable caution or reservation given the three days of cross-examination she had previously experienced.

124 Ms RET was cross-examined on matters which were intimate and personal (including the suggestion that she welcomed the assault on her) and motivations suggested to her for her pursuit of the matter including at least inferentially the commercial motivation arising out of her action for damages.

125 Having observed the victim give her evidence, the suggestion that she welcomed the sexual experience was abhorrent and distasteful to her. Having observed the jury’s reaction, the attack on her motivation was equally unsuccessful.

126 That cross-examination and the offender’s decision to pursue his right to give evidence was clearly undertaken and pursued on the basis of specific instructions in circumstances where the offender had been, and was, represented by both senior and competent counsel.

Matters personal to the offender

127 The pre-sentence report tendered earlier describes Mr Giotas as having a traditional and strict upbringing with a stable family environment. He was married in 1991 and has a 13 year old son from that relationship.

128 He was for some time a Justice of the Peace and obviously was a businessman with a partnership share in the real estate agency at Marrickville which he had at the time of the offence. Those are community positions with associated expectations on which the community, a junior employee and other work colleagues should be able to rely.

129 The offender sold that share of the business in 2003 and has on occasion subsequently worked as a real estate agent in another company. The report also refers to Mr Giotas as being a self assured and confident man who had the benefit of a supportive family upbringing. That self-assurance and self-confidence was evident in the way he gave his evidence.

JIRS statistics/Authorities

130 I have considered the relevant statistics produced by the Judicial Commission for offences under this section narrowed to the fields of pleas of not guilty, offenders aged 31-40, subject to one count. Those statistics indicate a range of sentences for a group of 13 cases.

131 I have also had regard to the range of sentences set out in relation to similar sentences for similar conduct on the Public Defenders’ website as well as the maximum penalty established for the offence - R v Trevanna [2004] NSWCCA 43 per Barr J; R v George [2004] NSWCCA 247.

132 Having considered those matters, the range of sentence I am considering falls within the range suggested as being a proper exercise of my sentencing discretion.

Policy Issues

133 Defence counsel has argued that it is important that there not be the perception of there being an element of retribution following a successful appeal - as has been referred to by Howie J in R v MM [2002] NSWCCA 431 at [42] as well as James J in R v Hannes [2002] NSWSC 1182.

134 That is not the case here. In terms of matters which might be said to found a perception of retribution on the part of the court, the offender was able to present his case again in the new trial, to give evidence, to put his case and to test the case against him. He was permitted through his counsel to cross-examine the victim both as to her credit and motivation without his prior record being introduced. The tendency notice sought to be relied on by the Crown was not permitted to be used as I have outlined earlier.

135 There was no element of retribution by the jury which was not aware of the decision of the Court of Criminal Appeal on the appeal – steps having apparently been taken to remove the decision from computerised accessibility prior to the second trial.

Double Jeopardy

136 Counsel for the offender refers to the analogy of double jeopardy as described by Kirby J in McL v The Queen (2000) 203 CLR 452.

137 Double jeopardy is frequently considered in the context of Crown appeals. Such appeals involve different considerations about the role of the prosecution, the Crown and the community involving the wider community considerations inherent in such appeals such as consistent sentencing standards. There are obvious policy considerations of fairness relating to offenders who are respondents in such a situation being the vehicle for wider public considerations.

138 Here the appeal was against conviction not sentence. The successful appeal on sentence, essentially on an Azzopardi basis, resulted in a re-trial so that he could present his account of the evidence. He did. He was clearly not believed.

139 The evidence in that trial, including his own evidence, as well as these sentencing proceedings, is the evidence on which he will be sentenced having due regard to the previous sentence and the powerful policy considerations relating to sentences following a retrial.

140 I also note that the dicta by Kirby J in McL (op cit) also referred at 499 with approval to a decision of the Queensland Court of Criminal Appeal in R v Petersen (1999) 2 Qd 85 at 97 to the effect that:

“(w)here an offender is to be re-sentenced following a successful appeal and re-trial, the second sentencing Judge should start with the proposition that the offender ought, in general, not receive a harsher sentence than that imposed after the first trial. If minded to depart from that approach, he or she should consider the powerful policy considerations outlined above. Only if the second sentencing judge concludes that the earlier sentence was outside the appropriate range, or the facts as they appear at the time of the re-sentence are significantly different from those upon which the first sentence was based, should he or she impose a heavier sentence."

141 Counsel also referred to the comments of Wood CJ at CL in R v Sloane (2001) 126 A CrimR 188 at [41] where His Honour referred to the principle as being of

“… particular importance when an offender has already been released from custody and has resumed his place in the community and is on the way to rehabilitation.”

142 If, as has often been said, rehabilitation must be proceeded by an acknowledgement of wrongdoing and an acceptance that there should be a different approach to behaviour patterns, then I see no evidence from the offender that such rehabilitation has occurred or is likely to occur given the views of the offender of the victim, the offence and his own role in it. That was also apparent in the earlier pre-sentence report prepared. There is no evidence of which I am aware that there has been any change.

143 It is also submitted from a policy point of view that to permit an increase in the sentence of an offender on a re-trial would militate against appeals in that potential offenders would not run the risk of an increased sentence.

144 In my view that submission obfuscates the clear distinction between a conviction and a sentence appeal. It does not represent the law which was relevant at the time the appellant instituted his appeal – as was clear from R v Bedford (1986) 5 NSWLR 711 and R v MM [2002] NSWCCA 431 – and runs totally contrary to the concept of an independent sentencing discretion on a re-trial.

145 Counsel for the offender also relied on Hannes – at [68] – in relation to another policy consideration referred to by Street CJ in Bedford (op cit) that no person should suffer ill-founded criminal judgment in consequence of a defective trial and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed. However, as was also noted by James J in Hannes at [70], Street CJ retreated from what he said in Gilmore in Bedford to reiterate the obligation on a sentencing judge on a retrial to give effect to his own assessment noting at p714:

“Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading
him to this view.

For example, there could be cases in which at the first trial the accused was dealt with remarkably leniently — perhaps by being released on a bond or subjected to a non-custodial order by reason of an unduly favourable impression created in the mind of the then sentencing judge. Subsequent reconsideration after a second trial or plea of guilty might well give rise to an appreciation that the criminality involved was of a greater degree or more serious nature than previously perceived. The subjective aspects may, on reappraisal, be less favourable to the prisoner. There could be a multiplicity of factors persuading the second judge that he should depart from the prima facie approach. What was described as a principle ordinarily to be followed will not prevent such a departure. The second judge might well, with complete propriety, take the view that a custodial sentence, indeed even a lengthy custodial sentence, is required in order to meet the requirements of the responsible and proper administration of the criminal law, rather than being absolutely fettered and limited by the bond or non-custodial order granted after the first trial.”

146 Similarly, the submission that the first sentence should operate as a ceiling to the second sentence seems to me to be unsupportable on the basis of either law or policy.

147 A contrary view might well be that if such ceiling was imposed, then an appellant could run a re-trial without any regard for the kind of evidence adduced, or their presentation, at a re-trial, secure in the knowledge that those matters could not be taken into account on a subsequent sentence.

148 A sentencing judge who has presided over a trial or a retrial needs to have regard to all the evidence in the trial as well as the sentencing proceedings as part of the intuitive evaluation of the objective seriousness of the offence as well as looking to the section 21A factors that relate to the offence including the offender’s state of mind.

149 One of the matters which was different on this sentence following the re-trial compared to the exercise conducted by Judge Woods QC was that I had the opportunity to see and hear the offender give evidence. That forms an essential part of the basis for the exercise of my discretion.

150 To the extent that the comments of Kirby J in McL at [136] are to the effect that Judges engaged in re-sentencing are controlled to some extent by any leniency previously afforded to the offender, in my view, the evidence in this case, particularly relating to the offender’s prior record and the nature of the evidence he gave, does not afford or support such leniency.

Other policy considerations

151 The policy issues relating to second trials do not, however, stop at the matters submitted by counsel for the offender. Others, and other interests, are also involved in a second trial, particularly a second trial of this nature.

152 There is the cost to the community of a second trial of both the prosecution, the police and the courts themselves. They are substantial.

153 There is the consideration of witnesses and the difficulties associated with second trials, often made longer when the proceedings involve canvassing of evidence given at the first trial.

154 Many victims – particularly involved in sexual assault matters – are reluctant to become involved in another highly emotional experience.

155 Here, the victim’s wish not to be involved with the legal and court system after the experiences she had can be understood. It is also of concern that the victim was told – as she reiterated in her evidence – by counsellors and others of experience involved in the counselling and advice of victims in this area - that she should be very sure before she proceeded because of what was involved in proceeding to a trial.

156 Ms RET said at page 48 (Transcript 6/2/07):

Q. Can you tell us why you waited to 19 January 2002?
A. I didn't - I didn't think I was going to be able to go ahead with it, going to the police. The counsellors that I saw at Royal Prince Alfred Hospital said that it was - it was very difficult and a long process with a very low success rate, and a lot of girls didn't - weren't able to go through with it, and that - that I should think carefully before I decided to go down that path, and as - as the time passed I just felt less scared and more angry, and to eventually I decided that I wanted to do something about it.

157 Ms RET’s demeanour when giving that evidence was a mixture of fear, apprehension, frustration and anger. As I have said, the first day of the trial was delayed because the Crown needed to confirm that Ms RET was prepared to give evidence.

158 Mr Thangaraj strongly disputes that such evidence should be relevant and submits that such evidence is, in any event, difficult to test. However, it is the kind of evidence which becomes relevant when a complainant is under attack (as was the case in this trial) on the basis of delays in between the incident and the making of a complaint and the reasons for such delays. No objection was taken to the admission of that evidence at the trial - presumably for the very good reason that, if a complainant is to be attacked on the basis of delays in complaint, her reasons for those delays including her state of mind in the aftermath of an assault of which she complains becomes a relevant and important consideration for the jury.

159 That is evidence which is common in many sexual assault cases. It bespeaks a widespread and realistic experience of those involved with sexual assault complainants and victims and their advice that complainants should be aware of the realities of being involved in this particular area of the criminal justice system and to be very cautious - to the point of being wary – about proceeding to be involved in the prosecution.

160 It is a matter of concern that this should be a widespread view about the court system and processes in this one particular area of criminal conduct - particularly among professionals in other disciplines having experience in, and exposure to, the criminal justice system. The concern of the legislature in that regard has been clearly marked by the passage of section 275A of the Criminal Law Procedure Act. The second reading speech of the Attorney-General in introducing the legislation makes the concerns of the legislature and the community clear particularly in relation to the possibility of secondary re-victimisation of complainants.

161 The law is clear from Siganto v R (1998) 159 ALR 94 at [31] that the distress occasioned to a complainant by having to give evidence cannot be used as an aggravating factor. The offender is being punished for his crime not the conduct of the defence case. Equally, the Courts must be alive to any suggestion or perception that brutalising cross-examining practices can be pursued, as they undoubtedly were in the past, which had the effect, if not the intention, of operating as a deterrent to those making complaints and the wearing down of those who have been involved in prior proceedings.

162 In my view, the courts also need to be aware on a retrial of the impact on a victim. Most victims in a sexual assault trial have to relive not simply the events themselves but the sequelae including intrusive and painful medical examinations, involvement with the police and prosecutorial authorities. That may be followed by a committal and a trial. A second trial involves a further reliving of the events and sometimes, as here, having one’s integrity and motives attacked.

163 I should make it clear that there is no evidence in this case that there has been such re-victimisation and accordingly I do not take such matters into account in this case. I simply note these matters in partial answer to the submissions made on behalf of the offender that there are policy considerations pointing to the adherence to the original sentence or less.

164 In any event I do not accept those submissions as being relevant in this case. My reasons for imposing a different sentence are as set out above. As I have said, I have taken into account the powerful policy considerations outlined by various appellate courts in this area.

Submissions as to the decrease in sentence

165 Counsel for the offender also submits that there are reasons why the sentence should be decreased, namely:-

(a) That the offender has been immediately placed in protection after conviction where he remains. The Crown has informed me that he is that position at his own request. Regardless of how that has occurred, there is no evidence of which I am aware of any particular or exceptional hardship to him arising out of this status.

(b) There has been a change to the behaviour of his son following the offender’s conviction.

and

(c) There is an ongoing relationship between the offender and his partner, Ms McNamara which will be jeopardised because Ms McNamara is on the IVF programme and any delays will have compounding difficulties for her.

166 I do not wish to minimise those difficulties for the son nor the emotional difficulties for the offender’s partner but I do not regard the evidence on either matter as constituting exceptional or special hardship to the offender’s family and dependents.

(d) That the offender has suffered through the second trial because of the financial situation and the stress that every trial creates in an accused.

167 Again, I do not regard the evidence as bringing those matters to a level whereby they warrant special consideration nor a reduction of a sentence which is otherwise appropriate.

168 Having considered those submissions and all the evidence, I do not regard those matters as warranting any reduction in the sentence I am considering let alone the sentence imposed by Judge Woods QC.

Consideration : Sentence

169 I take into account all the matters I have set out above, including the facts, the circumstances of the offender the principles of sentencing and the relevant factors under the Crimes (Sentencing Procedure) Act.

170 I have also considered the relevant authorities said to be comparable sentences and the JIRS statistics and comparable authorities on the Public Defender’s website to ensure that the range of the sentence that I am considering is in the appropriate range of my discretion considering the matters I have found and the evidence.

171 The counts here relate to two offences which occurred in the same place and circumstances involving the same victim and substantially similar facts. However, the offender turned the victim over in the circumstances I have outlined earlier which must have led to additional feelings of fear and vulnerability in the victim given the position she was in. After some consideration, and particularly having regard to the sentence of Judge Woods QC, I have come to the view that the sentences should be concurrent although I think that there is an element of leniency to the offender in that regard.

172 From a human point of view the impact on the offender of having to re-enter the prison system after an appeal and a second trial must be taken into account. What also must be considered is the fact that the offender has had this matter hanging over his head now for in excess of five years.

173 In the absence of those factors, I would normally consider a sentence of six years imprisonment to be appropriate. However, taking those matters into account as well as the evidence relating to the offender’s personal circumstances and the impact on him and his family of his incarceration, I consider that a head sentence of five years imprisonment is both warranted and appropriate.

Special circumstances

174 It was submitted that there should be a finding of special circumstances based on good prospects for rehabilitation and that I should follow the finding of Judge Woods in that regard.

175 As I have already stated I see no evidence of any kind of remorse for either the victim or the fact of the offence which might be regarded as a pre-cursor to, or accompanying, some attitudinal change as an aspect of rehabilitation.

176 Judge Woods QC also noted that “people often fail to accept findings of juries and often decline to acknowledge public misbehaviour, especially where they have close family support and where the acknowledgment of it would cause family grief. That appears to be the case here.” Some background context against which that comment was made might be gleaned from the Probation and Parole report (S7) which indicated that, at that time, the offender’s family believed that he was innocent.

177 That attitude may also have been consistent with the reaction from the family following the delivery of the jury’s verdict in the second trial when a senior member of the offender’s family stormed out of the courtroom (for which a letter of apology was subsequently tendered) and others became extremely distraught. Such distress is understandable in the human drama of a criminal trial and a verdict and I do not take it into account adversely to the offender. He had no responsibility for what occurred and, indeed, to my observation, attempted to diminish or control that reaction - which is to his credit.

178 The only relevance of that observation is whether I can be confident that there could be a family environment with which the offender would continue to be associated which would assist in his rehabilitation until the offender, at least, comes to a realisation that his behaviour was absolutely and manifestly wrong and reprehensible and that his guilt has now been established by two juries.

179 I should indicate that I saw no such reaction from the offender’s partner who was in court for most of the trial and the sentencing proceedings. To the extent that there will be a family structure with which the offender can be associated during a period of probation, it would be Ms McNamara on whom those hopes would probably depend.

180 However, my overriding concern is that I see little evidence warranting a finding of prospects of rehabilitation – other than the offender’s age, undoubted intelligence and that there is some family structure available to him – such as to warrant a reduction in the statutory formula to increase the time spent usefully on probation to the extent found by Judge Woods QC.

181 I need to consider if there are special circumstances warranting an adjustment to the ratio which the non parole period bears a relationship to the term of the sentence defined by s. 44(2) of the Crimes (Sentencing Procedure) Act 1999, that is, the non parole period must not be less than three quarters of the term.

182 I do not think that the evidence before me justifies a finding of special circumstances warranting a reduction of the statutory ratio to the figure found by Judge Woods QC. mean that he is likely to have an environment in which he may be successfully supervised.

183 In my view, the evidence as to the offender’s age and prospects of employment and the relationship with his partner, if that continues, and my finding of special circumstances based on those matters only warrants a reduction of the ratio of which the non-parole period bears to the head sentence of the order of two-thirds.

184 Accordingly the period of non-parole imprisonment will be 40 months or 3 years and 4 months imprisonment.

185 Having come to that provisional view, I have reviewed the matter over the intervening period since the submissions on sentence were made as forcefully and competently made as they were by counsel for the offender.

186 In my view, the sentence I have considered is appropriate in all the circumstances and the evidence before me.

Offender’s prior imprisonment

187 I was informed that the offender served a period of almost 12 months in custody prior to being released following the success of his appeal. He was in custody between 29 July 2005 and 18 July 2006.

188 I also take into account that this offender has served almost twelve months in jail and was then released following his appeal. He was then found guilty and immediately returned to custody after the jury’s verdict on 13 February 2007. Defence counsel had conceded when the jury had retired that in the event of a guilty verdict then no application for bail would be made – in my view, a very sensible concession.

189 The sentence will be backdated to reflect that period in custody.

190 Total time spent in custody is 1 year and 29 days.

191 The commencement date of sentence is from 23 February 2006.

Sentence

192 The offender is convicted on each count.

193 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.

194 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.

02/04/2007 - Typographical errors. - Paragraph(s) 12, 74, 77