Gabrieli v R

Court of Criminal Appeal (NSW)|2023-04-28|Before: Wright J, Wilson J, Fagan J, Fagan JJ

HEADNOTE [This headnote is not to be read as part of the judgment] On 22 October 2021 the applicant was sentenced in the District Court for 19 sexual offences committed against four women. In a period of five months between August 2017 and January 2018 he made contact with each of the women through the RSVP and Bumble dating apps. He contrived circumstances to persuade each of the complainants, on separate occasions, to attend at his apartment. Once in the apartment each complainant was subjected to sexual touching in which the applicant persisted over objection. In the case of three of the complainants, the applicant progressed to sexual intercourse without consent. The fourth complainant was able to extricate herself from the apartment without the applicant forcing sexual intercourse upon her, but only after he had detained her for a period with a view to preventing her from making complaint. The applicant was convicted after a trial conducted in September 2020. He did not acknowledge wrongdoing or show remorse. His subjective circumstances were not significant towards mitigation of penalty. The applicant was sentenced to an aggregate term of 18 years with a non-parole period of 13 years. The sole ground of appeal was that the sentence was manifestly excessive. The Court held (Wright, Wilson and Fagan JJ), granting leave to appeal but dismissing the appeal: The sentence was not manifestly excessive.

Offences committed against CB

CB met the applicant through RSVP, on which the applicant represented himself as a doctor, whereas according to a Sentencing Assessment Report he claims to have a tertiary qualification in business and finance and to have worked in home renovation, real estate, sales and marketing. He displayed on the app a photograph of himself when he was younger. CB was 38 years old. She commenced to "chat" with the applicant on RSVP. Then on a day in late August 2017 she met him at a coffee shop in Maroubra that he nominated. The coffee shop was about to close when they met there at the appointed time. It was near where the applicant lived and CB accepted his invitation to have coffee at his apartment.
The furniture in the apartment was arranged so that the only place to sit was a sofa abutting a wall, with a coffee table in front of it. The applicant invited CB to sit, which placed her close to the wall. The applicant sat down next to her and she was then unable to get up and move without pushing past him, between the sofa and the coffee table. After about 20 minutes of them being seated together on the sofa the applicant commenced kissing CB. She initially responded but when he squeezed her left breast with his hand over her clothing she said, "No, stop, this is going a bit too fast for me".
Shortly afterwards the applicant again squeezed CB's breast and she repeated her objection but he persisted: count 1, indecent assault, contrary to s 61L of the Crimes Act 1900 (NSW).
The applicant then took CB by the left wrist and pulled her hand down onto his erect penis, on the outside of his clothing, and held it there forcibly for about two minutes: count 2, indecent assault, contrary to s 61L.
CB was by this time afraid of the applicant. At over 180 cm tall and weighing approximately 80 kgs he was bigger and stronger than her. He said, "Let's have sex". CB said that she did not wish to as she was menstruating. He suggested she perform fellatio on him and led her by the wrist to a bed behind a partition. To that point CB had indicated that she did not consent to his sexual acts and she had physically resisted, without success. She assessed that it would be futile to resist further. The applicant said aggressively, "Lay down" then took off her top and bra and kissed and sucked her breasts: count 3, indecent assault, contrary to s 61L.
The applicant then removed his pants to expose his erect penis and said, "Suck it". He took the back of her head to hold her mouth on his penis until he ejaculated: count 4, sexual intercourse without consent, contrary to s 61I.
The learned sentencing judge was satisfied that in the commission of each of these offences the applicant was actually aware that CB was not consenting. Her Honour found that the applicant had manipulated his meeting with CB to induce her to go to his apartment, where he had her at a disadvantage, and that he disempowered her by seating her on furniture arranged as described above and by his forceful conduct thereafter.
Each of counts 1-3 was subject to maximum sentence of 5 years under s 61L. Count 4 carried a maximum of 14 years and a standard non-parole period of 7 years. The indicative sentences nominated by her Honour for counts 1-4 committed against CB were as follows: Count 1: 10 months. Count 2: 12 months. Count 3: 15 months. Count 4: 5 years, non-parole period 3 years and 9 months.

Offences committed against JM

JM and the applicant contacted each other through Bumble. On that app the applicant displayed, as if it were a photo of himself, an image of a different, younger man. The applicant represented himself on this app, also, as a doctor. JM was 25 years old and was herself a doctor. Through messaging on the app they arranged to meet at the applicant's apartment to swim in the pool there. JM stated in messages before meeting the applicant that she was not interested in sex and wanted to get to know him. On Boxing Day 2017 JM attended at the apartment under these arrangements.
Upon JM entering the apartment the applicant followed a sequence similar to that which he had initially taken with CB. He seated her on the sofa, commenced kissing her and then commenced touching her breasts, first on the outside of her shirt and then under. JM pulled back, told him to stop and said that she was not comfortable. The applicant then took hold of her left wrist and pulled her hand down onto his erect penis, on the outside of his clothing, and held it there forcibly: count 6, indecent assault, contrary to s 61L.
JM was frightened by the applicant's conduct. The following exchange took place: JM What makes you think it's okay for you to make me touch you that way when I didn't want you to touch my breast?" Applicant Why did you come here then? JM I thought I was coming here to swim. Applicant Well this is what men do. JM I'm going to leave.
For about 10 minutes the applicant physically prevented JM from leaving his apartment. During this he said, "You're not leaving until you calm down". When JM got out of the apartment the applicant followed her into the lift and rode with her to the ground floor, then walked outside the building with her, saying "I'm not going to leave you so angry": count 7, without consent detain JM with the intention of obtaining advantage, namely, to dissuade her from making a complaint about his conduct, contrary to s 86(1)(b) of the Crimes Act.
The indicative sentences nominated by her Honour for counts 6 and 7 committed against JM were as follows: Count 6: 12 months [maximum 5 years under s 61L]. Count 7: 2 years [maximum 14 years under s 86(1)(b)].

Offences committed against AP

AP and the applicant made contact through Bumble. She was aged 24 years and of slight build. After an exchange of messages they arranged to meet for dinner on an evening in mid January 2018. The applicant insisted that the venue should be a restaurant near his apartment as he claimed to be a doctor on call. On arrival at the restaurant the applicant feigned a headache and said he wanted to go back to his apartment. He invited AP to accompany him and she agreed. Once in the apartment the applicant followed his modus operandi of seating the victim on the sofa and, after a short time, trying to kiss her on the lips. AP protested that they'd only met 10-20 minutes earlier and pushed him off, saying "Let's talk first".
Not long after this the applicant commenced rubbing AP's leg, then pulled her dress off her shoulder and pulled her bra away and, in her words, "launched himself" on her breasts, sucking them. AP tried to push him off and told him to stop: count 8, indecent assault, s 61L.
The applicant removed his pants and asked her "if she liked it". He pulled at AP's underwear and tried to make her touch his penis, as she repeatedly said, "No". The applicant took hold of AP's wrist and pulled her hand onto his penis, while she was telling him to stop: count 9, indecent assault, s 61L.
AP considered trying to leave but thought she would be unable to do so. The applicant directed her to a bedroom and to sit on the bed. He took her phone. He pushed her dress up and either removed her pants or directed her to remove them. Then he sucked her breasts: count 10, indecent assault, s 61L.
The applicant performed cunnilingus for about five minutes, using his teeth which was painful: count 11, sexual intercourse without consent, s 61I.
AP put her hand over her genitals to try to stop the applicant. He climbed on top of her and tried to force his penis in her mouth, which she avoided by turning her head and pushing him. The applicant continued to perform cunnilingus in this position: count 13, sexual intercourse without consent, s 61I.
The applicant then got off AP and stood beside the bed masturbating, trying to put his penis in AP's mouth, which he succeeded in doing: count 14, sexual intercourse without consent, s 61I.
The applicant touched AP's clitoris until he ejaculated over her hair and body, the touching constituting count 15, indecent assault, s 61L.
The applicant inserted two fingers in AP's vagina for about two minutes: count 16, sexual assault, s 61I.
AP allowed this last assault under duress, to avoid worse. She pretended to have an orgasm in order to be finished with the applicant. She was then able to dress and leave without hindrance by the applicant.
Indicative sentences nominated by her Honour were as follows: Count 8: 15 months. Count 9: 12 months. Count 10: 15 months. Count 11: 6 years, non-parole period 4 years and 6 months Count 13: 6 years, non-parole period 4 years and 6 months. Count 14: 6 years, non-parole period 4 years and 6 months. Count 15: 2 years. Count 16: 6 years, non-parole period 4 years and 6 months.

Offences committed against AG

AG was a university student aged 27 years. Her initial contact with the applicant was through the Bumble app in November 2017 but they did not meet in person at that time. The applicant obtained AG's phone number from this contact and on 29 January 2018 he arranged by phone to meet her the next morning in a public place. He did not attend at the agreed location but subsequently prevailed on AG to meet him at a train station near where he lived, to have coffee. The applicant collected AG from the train station but took her to his apartment rather than to a coffee shop as she had expected. AG was unfamiliar with Sydney and did not realise that they were going to his apartment until they had arrived at the building. The learned sentencing judge was satisfied that the applicant had never intended to meet AG as planned and had manipulated the situation to get her to his apartment.
Once again the applicant seated his victim on the sofa and sat next to her. He placed his hand on her knee and she told him not to. He tried to kiss her; she said, "No" and pushed him away with both hands. He tried to pull the front of her dress down and commented about her breasts. When the applicant briefly left the room AG attempted to get out of the apartment but was unable to open the front door. The applicant again tried to kiss her and to pull her dress down and again she said, "No" and pushed him away.
The applicant then took AG by the wrist and placed her hand on his crotch. He exposed his penis and made her touch it and masturbate him, over her attempts to resist: count 18, indecent assault, s 61L.
The applicant kissed AG's left breast: count 17, indecent assault, s 61L.
AG continued to resist and to say "No". The applicant forced her to fellate him, with such a degree of force and penetration of her oral cavity that AG was unable to breathe. She felt close to loss of consciousness and suffered petechiae injuries to the back of her throat: count 19, aggravated sexual assault contrary to s 61J(1), the circumstances of aggravation being that the applicant recklessly inflicted actual bodily harm on the complainant.
The applicant then pulled AG to her feet, removed his clothing and helped remove hers. He led her to a bed behind a partition in the lounge room, forced AG onto her back and forced her legs open with his knees while he held her wrists. He forced his penis into her vagina until he was satisfied, then went to take a shower. This conduct was charged as count 20, aggravated sexual intercourse without consent contrary to s 61J(1) but the jury returned a verdict of guilty of the statutory alternative, sexual intercourse without consent contrary to s 61I.
While AG was on the bed the applicant sucked her left breast: count 21, indecent assault, s 61L.
When the applicant returned from his shower AG said she had to leave. The applicant tried to persuade her to stay and asked her to clean his apartment. He said he would drive her to her home, which was located outside Sydney. AG maintained that she had to leave and the applicant drove her to a train station.
The indicative sentences nominated by her were as follows: Count 17: 10 months. Count 18: 15 months. Count 19: 10 years, non-parole period 7 years and 6 months [maximum under s 61J(1) 20 years with a standard non-parole period of 10 years]. Count 20 (guilty verdict on the alternative of sexual assault contrary to s 61I) 8 years with a non-parole period of 6 years. Count 21: 15 months.

The applicant's subjective case

The applicant was unrepresented in the sentence proceedings. He had a grant of legal aid on terms that his trial counsel would continue to represent him. The applicant insisted that he wanted a change of representation. When the Legal Aid Commission refused he represented himself. He provided the sentencing judge with a long handwritten submission. He did not give evidence. The sentence proceedings were delayed from March 2021 to October 2021 because the applicant wished to obtain a psychiatric assessment. No such assessment was obtained.
The applicant's personal background, so far as it emerged in the sentencing proceedings, is not compelling from a sentencing point of view. He was born and brought up in France. The learned sentencing judge accepted at face value his assertions that he had been raised in poverty, with 11 siblings, and that his father had administered corporal punishment to himself and had been violent towards his mother. He claimed that he was sexually exploited by older women from the age of 15. He came to Australia at the age of 28, about eight years before this spate of offending. He married a woman whom he met here. There are two children of the relationship. The marriage ended in divorce about one year before the offending. The applicant's educational and employment history has been referred to earlier in these reasons. He remains in contact with his extended family who continue to reside in France.
The applicant's criminal history comprised one offence of domestic violence against his wife in 2011 and an assault and a property damage offence against a member of the public. For these matters bonds were imposed. The applicant was not forthcoming in his interview with a Community Corrections Officer for the purpose of a Sentencing Assessment Report. The sentencing judge did not receive any expert evidence of a psychological or psychiatric assessment. The applicant declined the offer of such an assessment by Justice Health.
The learned sentencing judge accepted that the applicant's antecedents "operate to permit some leniency" and drew the following conclusions: "[It] is likely that his poor regard and his unhealthy attitude to women stem from his childhood of being deprived with healthy role models of appropriate relationships. … His need to misrepresent himself to each of the victims evidences his low self-esteem and awareness of his poor prospects of securing dates if he was required to be assessed on his actual attributes. … [His] background does provide some insight into his unacceptable attitudes. It warrants a modest adjustment to his moral culpability.
Her Honour found that the applicant showed no acceptance of his wrongdoing and had "no insight into the factors informing offending". His prospects of rehabilitation and the risk of him reoffending were found "difficult to gauge" but it was noted that the offending had occurred relatively late in life and had ceased prior to the applicant's arrest in August 2018, giving rise to some mitigation of the risk of further offending.

The applicant's submissions to this Court and consideration

The applicant submits that her Honour's indicative sentence for the aggravated oral sexual intercourse with AG in count 19 "appears to be very high when taking into consideration the penalties for the two other convictions for fellatio", referring to count 4 concerning CB, where a sentence of 5 years with a non-parole period of 3 years and 9 months was indicated, and count 14 concerning AP, where the indicative sentence was 6 years with a non-parole period of 4 years and 6 months. We do not accept that the comparison reveals an unduly high indicative sentence for count 19, being 10 years with a non-parole period of 7 years 6 months. It was a particularly aggressive and degrading instance of oral intercourse, forcefully perpetrated and injurious. The jury found the applicant guilty of the aggravated form of the offence, which carries a higher penalty than s 61I. There was good reason for the learned judge to have indicated a higher sentence for this count than for the other instances of fellatio.
Apart from the submission with respect to count 19, the applicant has not directed his arguments to the indicative sentences. He has not submitted that individually they are unduly severe or that count-by-count severity has caused the aggregate to be excessive. In our view the indicative sentences all fell within the learned judge's range of discretion having regard to the objective gravity of the respective counts and to the subjective circumstances of the applicant. The applicant argues that the aggregate itself, as a penalty measured against the totality of offending, is plainly excessive and unjust. In effect he submits that the notional accumulation in the aggregate is too great and that there has been insufficient concurrence, leading to a manifestly excessive punishment for the whole course of offending.

Conclusion and orders

Her Honour justifiably concluded that it was appropriate, first, to incorporate some notional accumulation of sentences for offences committed in respect of each complainant. Although each such group of offences constituted a single episode, three of the episodes were prolonged and involved multiple forced sexual acts. Secondly, her Honour was justified in the view that there should be substantial accumulation between the sentences from one occasion to the next, given that there were four separate victims.
The offending was systematic, highly premeditated and carefully planned. The applicant's misleading profiles of himself on RSVP and Bumble were placed well in advance of the encounters. Text exchanges were carried on to the extent necessary for the applicant to lure the victims to meet with him. Each meeting was arranged so that the victim would be induced to enter his apartment. For those victims who sought to meet in a public place, the applicant manipulated a change of circumstances to catch them off guard and to exploit their politeness, inviting them to his apartment on a pretext that made it awkward for them to refuse. As the learned sentencing judge said: He was well capable of manipulation. He approached each occasion with a focus on satisfying his sexual desires. He demonstrated disregard of each victim, acting on his preoccupation with acquiring sexual activity.
In the apartment, the applicant's pattern of behaviour with each complainant revealed his premeditation. The overbearing of each complainant's initial refusal of consent was achieved without extreme violence but each victim was rendered powerless by the situation, being trapped in an apartment with a large strong male. The force applied varied from one offence to the next but the complainants' perceptions that resistance would be futile were rational, entirely understandable and probably wise.
The immediate anxiety, fear and degradation for each of the young women concerned was made clear to the learned judge from hearing them give their evidence in the trial. Two of the complainants provided victim impact statements that were considered during the sentencing process. They described lasting psychological effects, as would readily be inferred for all four complainants. Her Honour took into account the impact on victims albeit that she expressly did not make a finding of substantial harm for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
As was said by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], manifest excess is a conclusion. Their Honours elaborated as follows: [6] A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. ... A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
The totality of the applicant's criminal conduct may be characterised as deliberate, planned serial abuse of four women, without any genuine acquaintance with or interest in any of them except as objects to satisfy himself sexually, in disregard of their rights and welfare, and without recognition on his part, at any stage of the criminal proceedings, of his own wrongdoing. This was a concerted campaign of predatory sexual offending. Taking into account all objective and subjective factors, the aggregate sentence imposed in this case is not manifestly excessive. It is not unreasonable or plainly unjust. The sole ground of appeal is not made out.
The orders of the Court are as follows: 1. Grant leave to appeal. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2023

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