R v Gilena - [2018] NSWDC 419

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Gilena [2018] NSWDC 419
Hearing dates: 23 November 2017; 02 March 2018; 27 April 2018; 17 September 2018
Date of orders: 17 September 2018
Decision date: 17 September 2018
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
At [27].

Catchwords: SENTENCING – Multiple offences – Commonwealth offences – Use a carriage service to groom person under 16 for sex – undiagnosed and untreated mental health issues – section 11 adjournment – mental health treatment sought – supervised recognisance order.
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code (Cth)
Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
R v Asplund; Asplund v R [2010] NSWCCA 316
R v Costello [2011] QCA 39
R v Gent [2005] NSWCCA 370
R v Nahlous [2013] NSWCCA 90
R v Rampley [2010] NSWCCA 293
Xiao v R [2018] NSWCCA 4
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Robert Gilena (Offender)
Representation:
Mr Tsiavlis (CDPP)
Mr Tuckey (Counsel for the Offender)

File Number(s): 2016/13137

Judgment

This matter has a lengthy history. It first came before me on 23 November 2017. I set out in the transcript of my preliminary remarks, the charges that were laid against Mr Gilena in relation to two offences under s 474.27(1) of the Criminal Code (Cth) relating to an episode of offending between 29 March 2013 and 30 April 2013, that is about five and a half years ago. For reasons that are unexplained in the evidence, Mr Gilena was not apprehended in relation to this offending until 14 January 2016. Each of the two offences carries the maximum penalty of 12 years imprisonment.
Mr Gilena was born in 1988 and is now 30 years of age. I can indicate that the orders that I am going to make at the conclusion of these remarks is that there will be a sentence of 18 months imprisonment imposed. The sentence in each case will immediately be fully suspended on condition that he enter into a recognisance release order of three years duration to be of good behaviour and to be supervised by community corrections.
The agreed facts show that Western Australian police carried out some investigations into the use of websites Teenchat and Skype. The Police assumed the online identity of Amy Harding a 13 year old female from Perth. The offender initiated contact with that person, the fake person on 29 March 2013 and the agreed facts set out the chat that continued in relation to the offender asking the identity to chat and engage in suggestive activity.
On 8 April 2013, he again initiated contact with the identity known as Amy Harding; she reminded him that she was 13. He asked her whether her father was around and whether she wanted to try talking by camera. They continued to chat on Skype, he tried to call her on video on five occasions but the camera was not working. He talked to her…

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 Gilena

Details

AGLC: R v Gilena [2018] NSWDC 419
Case: [2018] NSWDC 419
Decision Date: 17 September 2018

CaseChat Overview and Summary

The case of R v Gilena involved the appellant, Gilena, who was charged with several offences under the Commonwealth criminal code. Gilena was found guilty of using a carriage service to groom a person under the age of 16 for sexual activities. The matter was heard in the relevant court, where the primary focus was on the sentencing of Gilena, considering the nature and circumstances of the offences, as well as his personal background. Notably, Gilena had undiagnosed and untreated mental health issues which were brought to the court’s attention. The court was required to weigh these factors, along with the statutory sentencing provisions, in determining an appropriate sentence.

The central legal issues before the court were whether the sentencing should be influenced by Gilena's mental health condition and the potential impact of a section 11 adjournment. This adjournment would allow Gilena to seek mental health treatment, which might affect the nature and length of the sentence imposed. The court needed to balance the seriousness of the offences against the possibility that treatment could rehabilitate Gilena and reduce the risk of reoffending.

In delivering the judgment, the court acknowledged the gravity of Gilena's actions and the need for deterrence and denunciation. However, it also recognised the importance of addressing underlying mental health issues to prevent future criminal behaviour. The court determined that a supervised recognisance order, with conditions for mental health treatment, was a more suitable approach than immediate imprisonment. This decision aimed to provide Gilena with the necessary support and rehabilitation while ensuring public safety. Consequently, the court granted a section 11 adjournment to allow for mental health treatment before finalising the sentencing.

The final orders included a supervised recognisance order, which required Gilena to seek and comply with mental health treatment as a condition of his recognisance. This decision aimed to address both the immediate need for punishment and the long-term goal of rehabilitation, reflecting a balanced approach to sentencing in cases involving complex personal circumstances.

Orders

Orders of the court

At [27].

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 Gilena [2018] NSWDC 419
Hearing dates:	23 November 2017; 02 March 2018; 27 April 2018; 17 September 2018
Date of orders:	17 September 2018
Decision date:	17 September 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	At [27].
Catchwords:	SENTENCING – Multiple offences – Commonwealth offences – Use a carriage service to groom person under 16 for sex – undiagnosed and untreated mental health issues – section 11 adjournment – mental health treatment sought – supervised recognisance order.
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Asplund; Asplund v R [2010] NSWCCA 316 R v Costello [2011] QCA 39 R v Gent [2005] NSWCCA 370 R v Nahlous [2013] NSWCCA 90 R v Rampley [2010] NSWCCA 293 Xiao v R [2018] NSWCCA 4
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Robert Gilena (Offender)
Representation:	Mr Tsiavlis (CDPP) Mr Tuckey (Counsel for the Offender)
File Number(s):	2016/13137