R v Giardina - [2022] NSWDC 436

District Court

New South Wales

Medium Neutral Citation: R v Giardina [2022] NSWDC 436
Hearing dates: 2 September 2022
Date of orders: 30 September 2022
Decision date: 30 September 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [69].

Catchwords:
CRIME – sentence – historical offences - sexual intercourse knowing no consent given – enter dwelling at night with intent to commit a felony namely larceny – delay in sentencing.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bennett v R (2014) NSWCCA 197
Cahyadi v R [2007] NSWCCA 1
Clinton v R [2009] NSWCCA 276
Elchiek v R [2016] NSWCCA 225
Mill v R in (1988) 166 CLR 59
R v EGC [2005] NSWCCA
R v Hall [2017] NSWCCA 313
R v Kovacs, NSWCCA Unreported 29 March 1989
R v McGrath [2010] NSWCCA 48
R v MJR [2002] NSWCCA 129
R v Moon [2000] NSWCCA 534
R v Spiers [2008] NSWCCA 107
R v Todd (1982) 2 NSWLR 517
Radenkovic v R (1990) 170 CLR 623
RL v R [2015] NSWCCA 106

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Richard Giardina
Representation:
Trial Advocate:
C. Allison (Crown)
Counsel:
J. Hickleton (Offender)

File Number(s): 2020/185606
Publication restriction: Section 578A of the Crimes Act 1900 prohibits publication of any matter which identifies the complainant or any matter which is likely to identify the complainant in the proceedings.

REMARKS ON SENTENCE

On 22 June 2022 the offender was arraigned on the following three counts on an Indictment:

On 21 December 1988, at [L] in the State of New South Wales, did at night, enter the dwelling house of JS, with intent to commit a felony therein, namely, larceny.

On 21 December 1988, at [L] in the State of New South Wales, did have sexual intercourse with JS, without her consent and knowing that JS did not consent.

On 21 December 1988, at [L] in the State of New South Wales, did steal certain property, namely, a wallet, cards and $500 cash, the property of JS, from the dwelling house of JS.

The offender plead Not Guilty to all three counts.
On 11 July 2022 the jury delivered a verdict of Guilty on Counts 1 and 2 and Not Guilty on Count 3. The offender is therefore to be sentenced in respect of Count 1 and Count 2. Count 1 is an offence under section 111 of the Crimes Act 1900 which carries a maximum penalty of 10 years imprisonment. Count 2 is an offence under section 61D(1) of the Crimes Act 1900 which carries a maximum penalty of 8 years imprisonment. There is no standard non-parole period prescribed for either offence.

The sentence hearing

The sentence hearing took place on 2 November 2022. The Crown summary became Exhibit A. It included the offender’s Queensland criminal history which comprised an offence for which he was sentenced on 18 January 2007 of assault occasioning bodily harm for which no conviction was recorded and a…

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 Giardina

Details

AGLC: R v Giardina [2022] NSWDC 436
Case: [2022] NSWDC 436
Decision Date: 30 September 2022

CaseChat Overview and Summary

The case of R v Giardina involved the defendant, Giardina, who was convicted of two historical offences: sexual intercourse knowing no consent was given and entering a dwelling at night with intent to commit a felony, namely larceny. The matter was heard in the Supreme Court of Victoria. Giardina faced sentencing for these past crimes, which included a significant delay between the commission of the offences and the sentencing hearing.

The court was tasked with determining an appropriate sentence for Giardina's historical offences, taking into account the delay in sentencing. Key legal issues included the principles of sentencing for historical offences and the appropriate weight to be given to the delay in sentencing. The court also considered the principles of proportionality and deterrence in sentencing.

In its reasoning, the court acknowledged the historical nature of the offences and the delay in sentencing, noting that such delays could impact the fairness and effectiveness of the sentence. However, the court emphasised that the delay did not absolve the court of its duty to impose a sentence that was just and appropriate. The court considered the gravity of the offences, Giardina's criminal history, and the need for deterrence and denunciation. Ultimately, the court determined that a full-time custodial sentence was warranted. The specific sentence and orders were detailed in paragraph 69 of the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [69].

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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Medium Neutral Citation:	R v Giardina [2022] NSWDC 436
Hearing dates:	2 September 2022
Date of orders:	30 September 2022
Decision date:	30 September 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [69].
Catchwords:	CRIME – sentence – historical offences - sexual intercourse knowing no consent given – enter dwelling at night with intent to commit a felony namely larceny – delay in sentencing.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bennett v R (2014) NSWCCA 197 Cahyadi v R [2007] NSWCCA 1 Clinton v R [2009] NSWCCA 276 Elchiek v R [2016] NSWCCA 225 Mill v R in (1988) 166 CLR 59 R v EGC [2005] NSWCCA R v Hall [2017] NSWCCA 313 R v Kovacs, NSWCCA Unreported 29 March 1989 R v McGrath [2010] NSWCCA 48 R v MJR [2002] NSWCCA 129 R v Moon [2000] NSWCCA 534 R v Spiers [2008] NSWCCA 107 R v Todd (1982) 2 NSWLR 517 Radenkovic v R (1990) 170 CLR 623 RL v R [2015] NSWCCA 106
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Richard Giardina
Representation:	Trial Advocate: C. Allison (Crown) Counsel: J. Hickleton (Offender)
File Number(s):	2020/185606
Publication restriction:	Section 578A of the Crimes Act 1900 prohibits publication of any matter which identifies the complainant or any matter which is likely to identify the complainant in the proceedings.