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R v Sordini

R v Sordini

Case [2015] ACTSC 45 17 February 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Danilo Sordini
Citation:	[2015] ACTSC 45
Hearing Date(s):	17 February 2015
DecisionDate:	17 February 2015
Before:	Refshauge J
Decision:	1. Danilo Sordini be convicted of sexual intercourse without consent committed on 16 August 2013. 2. Danilo Sordini be sentenced to imprisonment for two years and ten months to commence on 17 February 2015. 3. That the total sentence, including the earlier sentence, run from 5 August 2014 to 16 December 2017 with a non-parole period for the whole of the sentences to commence on 5 August 2014 and to end on 16 June 2016.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Judgement and Punishment – Sentencing – Sexual intercourse without consent – Sleeping victim CRIMINAL LAW – Judgement and Punishment – Sentencing – Family considerations
Legislation Cited:	Crimes Act 1900 (ACT), s 54(1) Crimes (Sentence Administration) Act 2005 (ACT), ss 69, 70, 82 Crimes (Sentencing) Act 2005 (ACT), ss 7, 11, 33(1), 40A, 62, 66, Pt 5.3
Cases Cited:	Cotter v Corvisy [2008] ACTSC 64 Henderson v R [2006] ACTCA 17 Ibbs v The Queen (1987) 163 CLR 447 Lewis v The Chief Executive of Department of Justice and Community Safety [2009] ACTSC 73 R v Ballantyne (Unreported, ACTSC, SCC 29 of 2013, Murrell CJ, 1 April 2014) R v Buckley (Unreported, Australian Capital Territory Supreme Court, SCC 214 of 2012, AJ Nield, 30 August 2013) R v Buda-Kaa [2013] ACTCA 46 R v DF (No 2) [2012] ACTSC 3 R v Elphick [2014] ACTSC 372 R v Mason [2001] VSCA 62 R v MT [2014] ACTSC 162 R v Taylor [2015] ACTSC 43 ZZ v R [2013] NSWCA 83
Parties:	The Queen (Crown) Danilo Sordini (Accused)
Representation:	Counsel Ms P Burgoyne-Scutts (Crown) Mr A Doig (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number(s):	SCC 123 of 2014

Refshauge J:

There is no doubt that sexual offences are abhorrent to members of the community. The courts must recognise that, because of the penalties that the legislature has set for such offences, the courts must also do their part to try and protect women and men from being the victim of such offences. This requires denunciation, deterrence and, where possible, reform. It also requires the courts to respect the need to vindicate the victims and hold offenders accountable.

Danilo Sordini has pleaded guilty to an offence of sexual intercourse without consent, being reckless as to whether the complainant, now a victim as a result of his plea of guilty, consented or not. Engaging in sexual intercourse without consent is an offence against s 54(1) of the Crimes Act 1900 (ACT), for which the maximum penalty prescribed is twelve years imprisonment. That penalty is, as the courts have said in cases such as Ibbs v The Queen (1987) 163 CLR 447 at 451-2, an important yardstick by which to measure the relative seriousness of the offence. By that measure, it is a serious…

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 Sordini

Details

AGLC: R v Sordini [2015] ACTSC 45
Case: [2015] ACTSC 45
Decision Date: 17 February 2015

CaseChat Overview and Summary

In the case of R v Sordini, the defendant, Danilo Sordini, was convicted of engaging in sexual intercourse without consent with a sleeping victim on 16 August 2013. The matter was heard and determined in the relevant court. The primary legal issues before the court were the appropriate sentence for the offence of sexual intercourse without consent and the impact of family considerations on the sentencing.

The court considered the severity of the offence and the defendant's lack of remorse. It was noted that the victim was asleep and unable to give consent, which underscored the gravity of the crime. Additionally, the court took into account the defendant's family circumstances, including his role as a father and his otherwise unblemished criminal record. The court balanced these factors in determining the appropriate punishment, ultimately deciding that a custodial sentence was necessary to reflect the seriousness of the offence while also considering the defendant's family responsibilities.

After careful deliberation, the court sentenced Danilo Sordini to imprisonment for two years and ten months, with the sentence to commence on 17 February 2015. The total sentence, including the earlier sentence, was set to run from 5 August 2014 to 16 December 2017. The non-parole period for the whole of the sentences was established to commence on 5 August 2014 and to end on 16 June 2016. This outcome reflects the court's assessment of the need for punishment and deterrence, while also acknowledging the defendant's family obligations.

Orders

Orders of the court

1. Danilo Sordini be convicted of sexual intercourse without consent committed on 16 August 2013.

2. Danilo Sordini be sentenced to imprisonment for two years and ten months to commence on 17 February 2015.

3. That the total sentence, including the earlier sentence, run from 5 August 2014 to 16 December 2017 with a non-parole period for the whole of the sentences to commence on 5 August 2014 and to end on 16 June 2016.

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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Citations

AGLC Citation

R v Sordini [2015] ACTSC 45

Most Recent Citation

R v Eyles (No 3) [2017] ACTSC 1

Cases citing this decision · 4 of 4 shown

R v Banks
[2022] ACTSC 202 Para 1

…dship that can be envisaged is of a similar nature to that which was regarded as not justifying any significant leniency in R v Sordini [2015] ACTSC 45 and R v NO (No 2) [2018] ACTSC 37.…
R v Kelly
[2020] ACTSC 292 Para 1

…Supreme Court, Burns J, 5 October 2012), R v MT [2014] ACTSC 162, R v Taylor [2015] ACTSC 43, R v Buda-kaa [2013] ACTCA 46 ( Buda-kaa ), R v Sordini [2015] ACTSC 45 ( R v Sordini ), Henderson v R [2006] ACTCA 17, R v Buckley (ACT Supreme Court, Penfold J, 30 August 2013) and R v Lindsay [2020] ACTCA 25.…
R v Eyles (No 3)
[2017] ACTSC 1 Para 1

…useful report than many of the reports that are now being provided to the Court as Pre-Sentence Reports. See, for example, my comments in R v Sordini [2015] ACTSC 45 at [9] and R v Elphick (No 2) [2015] ACTSC 23 at [31].…
Sirohi v The Queen
[2016] ACTCA 29

…Higgins CJ, 12 March 2013 R v King [2013] ACTCA 29 R v March [2014] ACTSC 244 R v Nagi [2010] NSWDC 129 R v Pham (2015) 244 A Crim R 280 R v Sordini [2015] ACTSC 45 R v TN [2013] ACTSC, Penfold J, 10 September 2013 R v TW (2011) 6 ACTLR 18 Singh v The Queen [2015] ACTCA 65 Singh v The State of Western Australia […

View all 4 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Taylor
[2015] ACTSC 43 Para 1

…Finally, in R v Taylor [2015] ACTSC 43, Mr Taylor and the victim were at a party when the victim rejected Mr Taylor’s sexual advances. The victim became heavily intoxicated and performed sexual acts before being taken inside and put to sleep. Mr Taylor then, after the other guests had left, digitally penetrated he…
R v Elphick
[2014] ACTSC 372 Para 1

…ent from 5 August 2014 to 4 November 2014 and then six months to be served by periodic detention thereafter. For the reasons explained in R v Elphick [2014] ACTSC 372, I will take into account these sentences.…
R v MT
[2014] ACTSC 162 Para 1

…See also what I said in R v MT [2014] ACTSC 162 at [36] to the same effect. I also said in that case that the engaging in sexual intercourse with a woman when she is asleep is predatory behaviour against a vulnerable person (at [38]). This must also be so when she was unconscious. It seems to me that this aggravate…
R v Buda-Kaa
[2013] ACTCA 46 Para 1

…In R v Buda-Kaa [2013] ACTCA 46, the victim fell asleep in her own home and Mr Buda-Kaa, who was twenty-two years old at the time, entered her home and came into her bedroom. He touched her on the breast and digitally penetrated her vagina. She initially thought he was one of her children who were in the house unt…
McDonald v Cottenham Nominees Pty Limited
[2013] NSWCA 83 Para 1

…It has been held in ZZ v R [2013] NSWCA 83 that there is a difference relevant in sentencing when a woman is sexually assaulted by a stranger where a further element of terror and fear would be expected. Nevertheless it seems to me that a person who is known to the victim but is not her sexual partner can, in effe…
R v DF (No 2)
[2012] ACTSC 3 Para 1

…n the indictment and the Crown indicated that it would accept this in full satisfaction of the indictment. No doubt, in accordance with R v DF (No 2) [2012] ACTSC 3, the Crown will file a notice declining to proceed in respect of the other counts on the indictment.…
Stephen James Lewis v The Chief Executive of the Department of Justice and Community Safety and the Sentence Administration Board of the Australian Capital Territory
[2009] ACTSC 73 Para 1

…lation (see s 69 of the Crimes (Sentence Administration) Act 2005 (ACT) and Lewis v The Chief Executive of Department of Justice and Community Safety [2009] ACTSC 73) has not been activated because he has had the second failure resolved as an authorised absence. The conviction that I will record for this offence w…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…In Cotter v Corvisy [2008] ACTSC 64 at [82], I considered the various authorities on this issue and concluded:…
Christopher John Henderson v The Queen; the Queen v Christopher John Henderson
[2006] ACTCA 17 Para 1

…In Henderson v R [2006] ACTCA 17, Mr Henderson broke into the victim’s apartment for the purpose of stealing from her. He found her sleeping and placed a knife at her throat and one hand across her mouth, telling her to be quiet. He then fondled her breast and digitally penetrated her vagina. He took out his penis…
R v Mason
[2001] VSCA 62 Para 1

…In R v Mason [2001] VSCA 62 at [50], President Winneke, with whom Tadgell and Buchanan JJA agreed, said:…
Ibbs v the Queen
[1987] HCA 46 Para 1

…T), for which the maximum penalty prescribed is twelve years imprisonment. That penalty is, as the courts have said in cases such as Ibbs v The Queen (1987) 163 CLR 447 at 451-2, an important yardstick by which to measure the relative seriousness of the offence. By that measure, it is a serious offence.…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
11, 33(1), 40A, 62, 66, 7 7 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
69, 70, 82 4 mentions (from Para 1)
Crimes Act 1900 (ACT)
54(1) 2 mentions (from Para 1)