Giacometti v R [2023] NSWCCA 150 | Case summary

Giacometti v R [2023] NSWCCA 150 | Case summary | Zoe

[9]

Uncharged acts

In addition to those facts relating to the counts on the indictment and the Form 1 offences, the agreed facts also included several other allegations which were before the Court to show that the charged offences were not isolated incidents and did not encompass the full extent of the violent and demeaning "relationship" between LV and the applicant. Those acts were summarised in a table styled "addendum" to the agreed facts. The italicised portions (which were underlined in the original) particularise the uncharged acts of violence while the observations in square brackets in the first column are mine. Paragraph 8 "Following this incident, the abuse continued. This included the offender grabbing a handful of her hair and pulling it out and slapping her face. The offender threatened the victim saying, "are you going to start fucking working." [This act happened after count 1] Paragraph 11 Following this incident, the offender would demand that they have sex because she had not made him cum enough times that day. The offender would threaten the victim with "punishment". On one occasion, the offender threatened to cut her vagina with a knife. As he held it near to her vagina, he said "you're lucky I wouldn't do this because I love you". [This act happened after the Form 1 offence under count 2] Paragraph 14 Following this incident, the offender would still remind the victim that he wanted to cum three times that day or he wouldn't be happy. He would continue to threaten to punish her. One evening, the victim was punched to her vagina. She begged his forgiveness. [This act happened after count 2] Paragraph 22 Soon after this incident, the victim recalls being threatened again for not doing her "job" that day. The victim was in the bathroom and attempted to fight back by saying to the offender "you're annoying me". The offender responded by grabbing and squeezing her neck and punching her in the stomach. That evening, the offender was drunk and became even more aggressive. The offender told the victim she was a "slut, Yugoslavian dog, you should be my prostitute, you should be working to live here". The victim was left apologising to the offender again. [This act happened after count 4] Paragraph 25 Following this incident there were further occasions where the victim was in the bathroom and the offender was drinking wine. The offender would hit the victim in the face, or stand on her feet for not doing her job. [This act happened after the Form 1 offence under count 5] Paragraph 26 The offender and the victim had an argument about whether the victim had been engaged previously. The offender called the victim's mother, brother and sister to try to get an answer but they all said she wasn't engaged. The offender yelled at the victim and said that she was lying about being engaged. The offender punched the victim in the stomach and legs. [This act happened after the Form 1 offence under count 5] Paragraph 35 Following this, the assaults continued. The victim recalled a time when the offender was watching the Australian Open tennis tournament on television. He called out to the victim "don't come over here a Yugoslav is playing" The victim went to the kitchen and made a meat pie with gravy and left it on the kitchen table to cool down. The offender walked into the kitchen, grabbed the victim's head and slammed it into the hot meat pie. The victim washed her face in the kitchen sink and the offender continued watching television. [This act happened after count 6]

[16]

The proceedings on 25 January 2021 and the sentencing Judge's concerns as to the expert reports

On 25 January 2021 the applicant confirmed that he asked the Judge to take the Form 1 offences into account and admitted his guilt to the offences particularised on those forms. LV's victim impact statement was read to the Court by her mother.
Counsel for the applicant tendered a report by forensic psychiatrist Dr Shweta Sharma dated 16 November 2020 (Ex 1) and two reports relating to the impact of COVID-19 on inmates held in NSW gaols. The first report was written by Dr Andrew Ellis in 2020, "COVID-19 and Mental Health Issues for NSW Prisoners" (Ex 2). The second report was prepared by the Kirby Institute in 2020 and titled "Report on COVID-19 and the impact on New South Wales prisoners" (Ex 3). Neither of those reports were mentioned by Judge Colefax in the sentencing judgment.
After those documents were tendered, Judge Colefax offered some opinions on Dr Sharma's report. His Honour indicated in robust terms that he had concerns about the report. He indicated that he did not accept the opinions contained within it, in view of the "prolonged sadistic brutality" the applicant inflicted on the victim. [1] The exchange is recorded in the transcript: [2] "HIS HONOUR: Just take a seat Mr Schaudin while I read these documents please. It is not a very helpful report, is it, Dr Sharma's report. Hardly explains the serious violent offences that he inflicted on the victim, the fact that he drank too much and occasionally had some cannabis. There's something more underlying this young man than a problem with alcohol, Mr Schaudin. The psychiatrist hasn't focused on - SCHAUDIN: I suppose your Honour's statement's correct. But I suppose the counterpoint is that given the psychiatrist's experience, the lack of any narcissistic personality disorder or any antisocial personality disorder - HIS HONOUR: That's what I was expecting to see in the psychiatric report. A report which doesn't adopt the expert's code of conduct but we can leave that to one side at the moment. SCHAUDIN: The offender is not giving oral evidence so that is the evidence in the offender's case and I provide to the court some written submissions, case summaries and JIRS statistics. HIS HONOUR: We'll proceed if that's the way you want to do it, Mr Schaudin. But I'm having difficulty reconciling what this young man did to that young woman with a diagnosis of alcohol disorder. I certainly do not accept on the material before me the conclusion of the author of the sentencing assessment report that the risk of reoffending is low to medium or that of Dr Sharma, that it is low. I'm having some difficulty with the material that I've got. But I will sentence him if that's the basis that I'm - SCHAUDIN: I appreciate it's already been adjourned once but I don't want, for the victim who's here, to drag these proceedings out but if that - HIS HONOUR: As you would know and she would know, she's not being sentenced although in one sense, she has received a sentence. But I can tell you Mr Schaudin, I'm contemplating a very severe sentence on your client. Very severe. I'm not comfortable, quite frankly, with proceeding to, and on the material before me, it will be a very substantial sentence. I haven't worked it out yet obviously because I haven't read your submissions. If there is, in truth, a significant mental health condition which this Dr Sharma has not seen, that would need to be or it should be taken into account on the sentence. SCHAUDIN: If those warning are on board, I would seek this. An adjournment for the offender to obtain his Justice Health records with the view of briefing a further practitioner for an updated report and perhaps to also obtain GP material. HIS HONOUR: I think that should be done, Mr Schaudin, quite frankly, because I'm only going to repeat myself, but I don't really feel comfortable with Dr Sharma's report. It goes nowhere near explaining the horrific crimes he inflicted on this girl."
The hearing was adjourned to allow the applicant to obtain further reports.

[17]

The proceedings on 29 March 2021 and Judge Colefax's ongoing concerns about the expert evidence

On 29 March 2021 the applicant tendered two additional reports. The first was a report by psychiatrist Dr Richard Furst dated 20 March 2021. Dr Furst conducted a 75-minute interview with the applicant on 2 March 2021. The second was a psychological report by Ms Kris North dated 19 March 2021. Ms North conducted a 3-hour interview with the applicant on the 1st and 16th March 2021. Both experts read Dr Sharma's report and the SAR before providing their opinions.
After those reports were tendered, Colefax DCJ commented on the differences in the diagnoses and the histories provided to Dr Furst and Ms North: "HIS HONOUR: … Yes, I've read both of those documents thank you. No doubt you'll address me, Mr Schaudin on the fact that each of them comes to a different conclusion as to the diagnosis and the different histories that apparently were given to each of them goes to the extent of the sexual abuse inflicted upon him by his grandmother's partner. Ms North there was only two or three - when I say only, two or three occasions between the ages of seven and eight. Dr Furst has a history of sexual abuse from seven or eight years of age which continued over the following two years so completely different history. As to the extent of the sexual abuse given to two different persons, it seems to be a different history as to whether he's been using drugs in gaol and the diagnoses of the two experts are substantially different so no doubt all of that will be included in your submissions. Is that the evidence for the offender? I take it he's not [giving] evidence as you indicated on the last occasion?"
Judge Colefax continued to raise what he perceived to be inconsistencies in the expert reports in the course of counsel's submissions: "HIS HONOUR: Where the offender's not getting into the witness box you can't give me what your instructions are, he either was going to get in the witness box and clarify the problem or he wasn't. And at the moment I'm left with two substantially different histories given to two experts within a very short period of time. SCHAUDIN: Well, the only objective way I could resolve it and I can't do that today is be permitted potentially to ask a specific question of Dr Furst to see if it alters. If it doesn't alter, then your Honour is left with a situation - HIS HONOUR: No, you've had these documents and you tendered them. SCHAUDIN: I did. HIS HONOUR: The difficulty with the documents is self-explanatory, on their face they are inconsistent. That would have been known to you and your instructors before they were tendered so there's going to be no further adjournments for any further material. SCHAUDIN: As the Court pleases. HIS HONOUR: I just want to hear - as a matter of procedural fairness I've got to draw this to your attention and to also ask which of the diagnoses I'm expected to accept? Dr Furst comes down to one cluster of diagnoses, Mr North has another, they're not consistent. Which one do you ask me to accept?"
Counsel submitted that the sentencing Judge should accept the opinions of Dr Furst on the basis that his opinions, in comparison to those of Ms North, were more "assertive", "diagnostic" and based on a "consultative" and "academic" process. As to the inconsistencies relating to the applicant's background in the two reports, Mr Schaudin submitted: "It can be accepted that prima facie there is, as your Honour has alluded to an inconsistency between the background contained within the North report and the Furst report. And as best that I can say is that where Dr Furst has indicated on p 5 under Other Issues that it continued for two years or so. Dr Furst has not indicated within that portion of his report, the numerical occasions that it has occurred whereas Ms North has included a numerical occasions of two or three times within the time. The inconsistency in numerical terms is in the time and your Honour has also expressed concern about, i.e., until nine or ten. The inconsistency exists on the face of the evidence, I can't make it any better than it currently is."
The Prosecutor did not object to the tender of the reports and largely relied on their written submissions. In those submissions, the Prosecutor submitted the Judge should place little weight on the remorse expressed by the applicant in the SAR and to Dr Sharma because the statements were "untested, unchallenged and self-serving". In supplementary submissions, the Prosecutor contended that the sentencing Judge should "exercise caution before accepting the untested hearsay evidence of what an offender has told an expert".
The prosecution also submitted that the sentencing Judge should not rely on the diagnosis of bipolar disorder, as no formal diagnosis was made by either Ms North or Dr Furst. Furthermore, the prosecution argued that the sentencing Judge should not rely on Dr Furst's opinion, as he did not properly explain the connection between the applicant's disorders and the offending. The prosecution position was that both reports contained "self-serving statements" and "there [was] nothing contained in either the report of Ms North or the report of Dr Furst which would lessen the offender's moral culpability or make him an inappropriate vehicle for general deterrence".
At the conclusion of the hearing Judge Colefax announced: "I think I can indicate that my preliminary view is that I'll be giving more weight to Dr Furst's report rather than the psychologist or the other psychiatrist because of the depth of his analysis and his training as a psychiatrist as opposed to a psychologist and therefore I will take longer than I expected to formulate the sentence. It doesn't necessarily all cut one way Dr Furst's report. Whilst on the other hand it sets out a background, on the other hand the need to protect the community might be increased but I'll have to reflect on all of it."

[18]

The sentencing judgment

The applicant was sentenced on 30 April 2021 and his Honour published his remarks or judgment on sentence. Each of the indicative sentences included a 10% discount for the applicant's pleas of guilty on arraignment. The sentencing Judge found the offences were aggravated because they "occurred in the home of the victim" and made the following assessments of the objective seriousness of each offence: 1. Count 1, 2 and 3: Well above the mid-range. 2. Count 4, 5 and 6: Well above the mid-range into the upper range. 3. Count 7: Above mid-range. [3]
The sentencing Judge acknowledged LV's victim impact statement, saying: "Although the document was brief, its brevity does not detract from the powerful nature of the statements it contains. Clearly, the young lady concerned has been highly traumatised and very seriously physically and mentally damaged by your criminal misconduct towards her." [4]
The sentencing Judge noted that Dr Furst and Ms North assessed the applicant to be above the average risk of reoffending and that the SAR found the applicant to have "a medium to low risk of reoffending". [5] As the applicant pointed out, [6] the SAR was revised to assess the applicant to be within a "medium to high risk of reoffending".
The sentencing Judge found that the expert reports came to "significantly different conclusions" on the diagnoses and recorded inconsistent personal histories. His Honour stated: [7] "I must say that I was, and remain, perplexed as to why both of those reports were tendered given that each expert came to significantly different conclusions as to their respective diagnoses; and the reports contained some differences in the histories obtained …"
His Honour identified what he considered to be the five main topics in relation to which the histories provided to the experts were inconsistent: [8] 1. The circumstances in which the applicant was born and brought up. 2. The emotional and physical abuse the applicant experienced at the hands of his grandmother as a child. 3. The sexual abuse perpetrated on the applicant by his grandfather. 4. The extent of the applicant's alcohol problem. 5. The applicant's use of pornography.
His Honour stated that the "various inconsistencies could have been explained" had the applicant given evidence but his Honour assumed that counsel made a forensic decision not to call him. [9]
The sentencing Judge concluded that the differences in the reports was due to the inconsistent accounts provided by the applicant to each expert and commented that none of these differences were brought to the attention of, or considered by, the experts when writing their reports.
His Honour found the applicant to be "a most unreliable historian" and a "manipulative, sadistic and dangerous young man." Judge Colefax was not satisfied of the "accuracy or reliability" of the diagnoses or the histories provided in the three reports. For that reason, his Honour did not take into account the those diagnoses or the details of the applicant's personal history. [10]
Though each expert stated that the applicant was remorseful, the sentencing Judge did not find the applicant to be "genuinely remorseful" because of his conclusion that the applicant provided inaccurate narratives to the experts and because he did not give evidence of his remorse during the sentencing hearing. [11]
The sentencing Judge recognised the applicant's youth, his limited educational or work qualifications and that prior to these offences he had no criminal history. However, he found that the significance of his age on sentence was substantially reduced because his offending was "no momentary error in judgment caused by immaturity, but amounted to sustained and brutal domestic abuse over many months". His Honour regarded the applicant's prospects for rehabilitation to be "very guarded, if not poor". [12]
The sentencing Judge stated that general and specific deterrence were "fully engaged" in the absence of any established and relevant mental health conditions. His Honour held that even if mental health conditions had been proven and the need for general and specific deterrence had been reduced, "the need to protect the community" would "have been considerably elevated". [13]
Judge Colefax concluded that "no sentence other than a sentence of full-time imprisonment [was] appropriate". His Honour was prepared to vary the length of the non-parole period due to the applicant's young age and because it was his first time in custody and made a finding of special circumstances. However, he said the departure would be "very modest" due to the "seriousness of the offending … [the applicant's] prospects of rehabilitation; and the lengthy period on parole to which [he] …will be subject". [14]

[26]

The rejection of the expert evidence

The sentencing Judge said: [19] "[154] None of the three experts expressly stated how much of her or his diagnosis was dependent upon the accuracy of the histories given by you although, on a fair reading of each report, it would seem that the histories were of considerable significance. For example, at page 9 of his report, Dr Furst wrote: '…I am of the opinion that Mr [Giacometti's] history of childhood sexual abuse, coupled with other forms of abuse in his childhood, including physical and emotional abuse, were substantially causative in relation to subsequent psychopathology, including his obsessive-compulsive disorder, depressive tendency and his alcohol/substance use disorder. Causation in relation to paraphilias is still not very well understood; however, a much higher rate of sexual offending, approximately 8-times the rate, is evidence in long term studies of men who have been the victims of childhood sexual abuse, as compared to men who have not been victimised in this manner.' [155] Furthermore, none of the differing histories were apparently brought to the attention of, or considered by, any of the authors of the experts' reports tendered on your behalf. [156] Clearly, you are (at best) a most unreliable historian. [157] You bear the onus of proving facts in mitigation on the balance of probabilities. I am not satisfied to that standard in relation to any of the five topics I have specifically referred to; and I am not satisfied to that standard as to the accuracy or reliability of the differing diagnoses of any of the three experts retained on your behalf. This is not said critically of any of those experts but, to a very significant degree, is reflective of your unreliability (if not dishonesty) as a historian. What I am satisfied about, beyond reasonable doubt, is that you are a manipulative, sadistic and dangerous young man."
In the end, the sentencing Judge did not take the applicant's mental health issues into account on sentence. This failure is at the centre of the applicant's complaint under ground 1 and is also relevant to a determination whether the aggregate sentence is manifestly excessive (ground 2).

[27]

Remorse

The SAR recorded the applicant saying that that his "behaviour was monstrous, unacceptable and he was disgusted with himself". He also claimed that he had no control at the time of the offences, struggled to explain his actions, and commented that "his time in gaol has given him time to think clearly, and [he] should have got help."
Dr Sharma referred to the applicant's belief that the amount of alcohol he was drinking contributed towards his violent behaviour. He said he regretted drinking so heavily, was "deeply remorseful" for his actions, and he "wish[es] he had asked for help earlier".
Dr Furst said the applicant described his offending as "monstruous", and that he "felt guilty about what he had done". He said, "I can't believe I did those things. I don't believe I'm a bad person but look at what I've done. I hate myself over it."
Ms North reported that the applicant did not recall all the incidents but said he "knew they happened". She said the applicant "entered pleas of guilty for his offences and accepted responsibility for his offending behaviour". He "described 'blacking out' at times during the offences" and could not explain why he committed the offences. However, he described experiencing anger, paranoia, jealousy and low self-worth before committing the offences. The applicant also stated that "he felt sorry for what he had done" and recognised that LV "[was] probably traumatized and scared" and "no-one should have to go through that". He expressed that he "felt like something else (was) in control" but denied experiencing hallucinations at the time of the offences.
The sentencing Judge rejected the applicant's expressions of remorse finding: "You have purported to express remorse to the authors of the various reports to which I have referred. However, you did not give sworn evidence to that effect. By having regard to the absence of such sworn evidence and the problematic nature of the histories which you have given to the various report writers, I am not persuaded, on the balance of probabilities, that you are in fact genuinely remorseful for your criminal conduct against the victim." [20]

[30]

The applicant's submissions under ground 1

Ms Akthar, who appeared for the applicant on the appeal, stressed that none of the experts were required for cross-examination and criticised the way in which the sentencing Judge rejected, in effect, the entire subjective case presented on the applicant's behalf. For example, Ms Akthar emphasised that his Honour referred to the different accounts of the applicant's mother's age at the time of the applicant's birth and noted that none of the expert reports suggested that this was "of any moment in the formulation of opinion". She also referred to the purported inconsistency concerning the limited contact between the applicant and his father and submitted that there was "no basis to find that the applicant had given any inconsistent history on this point". It was submitted in writing: [21] "The matters referred to by his Honour, above, do not reasonably cast doubt on the applicant's truthfulness or reliability as [an] historian. They did not provide a basis for the unchallenged opinions of the expert report writers to be rejected."
Counsel undertook a detailed analysis of the five matters identified in the sentencing judgement (and set out above at [48]). That is (i) the applicant's upbringing, (ii) the abuse by his grandmother, (iii) the sexual abuse by the "grandfather", (iv) the applicant's alcohol problem, and (v) the applicant's use of pornography. It was conceded that discrepancies in the histories relating to the abuse by the grandmother and the use of pornography "could be fairly described as conflicting accounts" and it was "open for his Honour not to accept the evidence on these two topics." However, it was submitted the Judge went much further and "rejected all of the mitigatory subjective material tendered by the applicant on the basis that the applicant was, 'clearly (at best), a most unreliable historian'".
The applicant further submitted that the sentencing Judge failed to make any reference to other subjective matters which were established and not disputed. This included his experience in custody and reports by psychiatrist Dr Ellis and the Kirby Institute regarding the impact of COVID-19 on inmates in custody.
Ms Akthar placed reliance on the decisions of this Court in Devaney v R [2012] NSWCCA 285 ("Devaney") and Lloyd v R [2022] NSWCCA 18 ("Lloyd"). It was submitted: [22] "The applicant was entitled to be sentenced on the basis not only of an assessment of his offending conduct, but also in consideration of relevant subjective matters, including mitigating factors, that had been the subject of unchallenged evidence. The sentencing judge's rejection of the expert evidence tendered on his behalf on sentence was based upon the inaccurate premise of a fault in the material upon which the opinions were formed. This was an error of the kind referred to in House v the King (1936) 55 CLR 499 at [505]."

[32]

Consideration and resolution

I have found this ground difficult to resolve. Part of the difficulty arises from the tone in which Judge Colefax chose to conduct the sentencing hearing and to express himself in the sentencing judgment. It is no longer common for a sentencing Judge to address an offender directly, and in the second person, when delivering their remarks on judgment or sentence. That is a practice not generally followed in New South Wales these days, although it remains common in other jurisdictions (for example, in Victoria) and was the practice in New South Wales many years ago. I would not encourage the practice but, if a judge decides to address an offender directly in delivering a sentencing judgment, considerable care must be taken to ensure that the language employed does not betray a lack of judicial detachment or appear to descend into unmannerly and pejorative insult. That is so even in cases where, as here, the offending conduct may warrant such language in other contexts. Regrettably the language employed in this case - for example, "you are a manipulative, sadistic and dangerous young man" - did little to achieve the true purpose of providing reasons for the imposition of a particular sentence.
Having said that, Judge Colefax was confronted with a difficult situation in terms of making findings of fact based on the applicant's hearsay, and potentially self-serving, statements to four different experts. As Ms Akthar properly conceded, some of those statements were (as the Judge found) inconsistent. The Judge was also called upon to assess whether there was any underlying psychological or psychiatric explanation for the applicant's offending behaviour, which was well outside of normal, even using sexual offenders more generally as the "norm". His Honour was correct that the applicant's alcohol abuse did little to explain conduct such as treating his partner as a sexual slave, punishing her with violence if she failed to remain naked when inside the house or beating her savagely for not satisfying his desire for a nominated number of orgasms each day.
For example, the applicant denied any interest in pornography when he consulted with Dr Furst, the expert upon whose opinion the applicant placed most reliance. Yet Ms North recorded that the applicant said he did use pornography, albeit not regularly and not to access subject matters involving deviant sexuality. It is true, as Ms Akthar submitted, that neither expert said the history regarding pornography was central to their diagnoses but the issue the sentencing Judge was pursuing was the extent to which he could rely on the histories provided to the experts.
Perhaps more central to the issues was the admitted inconsistency in the applicant's account of abuse he claimed to have suffered at the hands of his grandmother. The applicant told Dr Furst in an interview on 2 March 2021: "His grandmother was an alcoholic who was frequently verbally and emotionally abusive towards him. She would put him down on most occasions when she was drinking, but not when she was sober. She also hit him and would break things in anger in the family home."
Consistent with that history was what he said to Dr Sharma on 12 November 2020: "He mentioned that his grandmother, when intoxicated, used to hit him physically and would often break things at home in anger."
However, not only was there no similar history provided to either Mr Baker (for the SAR) or Ms North. When the applicant spoke to the latter on 1 and 16 March 2021, he painted a contradictory picture of the relationship: "Mr Giacometti described sharing a particularly close relationship with his grandmother who remained his main source of support."
While the sentencing Judge might have taken a more benign approach to the contradictions in the history, they were plainly relevant to an assessment of the source of the information upon which the various opinions were based. It is true, as Allsop P (as his Honour then was) emphasised in Devaney that "part of the professional skill of the psychiatrist is the assessment of the history", but the circumstances of this case were such that the sentencing Judge was entitled to be guarded in accepting the accuracy (and truthfulness) of the history itself. Those circumstances included the applicant's (false) denial of any wrongdoing when he was first confronted by investigating police. He either denied the acts themselves or, if he admitted the acts, suggested the complainant was a consenting party.
Furthermore, as the respondent points out, the opinions of the experts in Devaney were consistent. In the present case, the diagnoses were not consistent. For example, Dr Furst did not agree with Dr Sharma's diagnosis of a generalised anxiety disorder but preferred a diagnosis of obsessive-compulsive disorder. It might also be observed that, apart from Dr Furst's diagnosis of a "paraphilic disorder", none of the diagnoses had any real capacity to explain the disturbing criminal conduct engaged in by the applicant over a lengthy period of time.
The applicant submitted that, even taking account of these admitted inconsistencies, it was "not open to his Honour to entirely reject the unchallenged evidence" of the sexual abuse, alcohol abuse and "mental health challenges". Moreover, the sentencing Judge - by failing to refer to things such as the applicant's experience in custody (such as witnessing a murder and experiencing the strictures of Corrective Services responses to COVID-19) and the association between an offender being a victim of child abuse and neglect and the diagnosis of paraphilia - appears to have disregarded the entire subjective case. Again, the pejorative use of language and it being directed at the applicant, heightens that concern.
Ultimately, I am satisfied that this ground of appeal should be upheld. As Ms Akthar submitted, the applicant was entitled to have the subjective and mitigating factors considered along with the extremely grave objective facts unless, by a rational process of fact finding, the trial Judge rejected the evidence. As it was put more plainly on the hearing of the appeal, when asked why the Court would reduce the sentence, even if the ground was upheld: "The applicant says that he's presently been sentenced with no regard being had to anything specific to him, other than his generally young age and it being his first time in custody."
While it was open to his Honour to regard the applicant's hearsay assertions with scepticism, the rejection of part of the evidence did not automatically mean that the whole subjective case should be disregarded. On a fair reading of the sentencing judgment, it is impossible to resist the conclusion that his Honour failed to consider several matters that ought to have played a role in the instinctive synthesis leading to the imposition of a sentence that reflected both the objective gravity of the offending and the subjective considerations, some of which were favourable to the applicant. This included, at least, the conditions of incarceration and the applicant - as a young man with no prior convictions and no previous experience of gaol - witnessing a murder committed in front of him. There was no reason to doubt that part of the history; it would have been readily disproved if it was not true, and Dr Furst provided a quite detailed footnote of the incident.
Similarly, finding inconsistency in two of the five subject areas arising from the expert reports ought not to have led to an automatic rejection of all of them. It is difficult to tell from the sentencing judgment (at [124]-[143]) whether his Honour took the view that there were inconsistencies in relation to others subject areas but, as the applicant submitted, the histories provided in relation to the sexual offending by the "grandfather" and the mother's neglect of him as a child were largely consistent and, I would add in respect of the latter, quite compelling. They were also potentially important considering the following opinion offered by Dr Furst: "Paraphilic Disorders (paraphilias) are defined in DSM-5 as intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with normal, physically mature, consenting human partners. The individual must have a history of recurrent and intense sexual arousal of an atypical focus lasting at least 6 months that manifests as sexual fantasies, urges or behaviours. … The offending in question before the Court was protracted and, as outlined above, revolved around the persistent humiliation, abuse and control of the victim, coupled with repeated demands that the victim needed to sexually satisfy him, often multiple times per day (essentially entrapping the victim) and with [LV] being treated like a 'sex slave', being consistent with a paraphilic drive/paraphilic disorder. Apart from deviant sexual arousal driving his behaviour, Mr Giacometti's childhood history and adversity is also relevant, with the number of sex offenders, including Mr Giacometti, often having a bad relationship with the [sic] mothers and/or negative attitudes towards women in general. This was often reflected in the derogatory and humiliating words use by the offender throughout the course of his offending. Other relevant psychological issues include high levels of anxiety, low self-esteem and, most likely, a disturbed sense of self/identity, meaning Mr Giacometti probably controlled, humiliated and abused the victim not just as a product of his sexual deviance, but also as a means of making himself feel better as a person, i.e. giving him a sense of empowerment. All of the psychological and psychiatric factors as described above, and the offending behaviour and related attitudes in particular, will require long-term psychological therapy and psychiatric treatment. Such assessment and treatment is necessary in order to clearly identify the deficits present, identify his individual risk factors in relation to his offending, and to mitigate/manage such risk factors when he is released from custody."
In summary then, I would uphold the first ground of appeal because (i) the sentencing Judge failed to take into account relevant matters of mitigation at all and (ii) erred in rejecting other parts of the subjective case.
However, apart from the fact that the Court must move to consider the sentencing discretion afresh, [23] there is no automatic consequence arising from the finding that ground 1 is made out. It becomes unnecessary to consider the second ground of appeal which asserts that the sentence is manifestly excessive. If re-sentencing, without regard to the sentence imposed at first instance, would result in a less severe sentence, the appeal should be upheld. If it would not, ground 2 will necessarily fail.

[33]

Exercising the sentencing discretion afresh.

In re-sentencing the applicant, I would not depart from the following factual and procedural aspects of the approach taken by Judge Colefax: 1. I would impose an aggregate sentence. 2. I would apply a 10% discount for the utilitarian value of the plea. 3. I would find special circumstances although for somewhat different reasons, resulting in a slightly greater adjustment to the aggregate non-parole period. 4. I would make the same factual findings (noting the facts were agreed) and not depart from his Honour's evaluation of the objective gravity of the individual offences.
As is implicit in my conclusion that ground 1 must be upheld, my approach to the applicant's personal case will be different to that taken in the District Court. Before dealing with that subjective case and returning to determine the indicative sentences for the purpose of s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), it is worth reminding the reader of the facts of the offences set out at [11]-[29] above. To repeat my observation at [29], "the course of conduct engaged in by the applicant over a period of many months represents sexual and violent offending of an extreme and quite depraved kind." The offences against LV, which occurred in her own home where she was entitled to feel safe and loved, was brutal, humiliating and demeaning. It caused serious physical injury and psychological scarring which is impossible to calculate.
Whatever one makes of the subjective case, the aggregate sentence must ultimately reflect the grave objective circumstances of this course of conduct. In saying that, the applicant is only to be sentenced for the individual offences and the uncharged criminality is taken into account to place the charged offences in their proper context and to emphasise that these were not isolated incidents. The matters on the Form 1 increase the need to denounce the conduct and results in greater weight being given to personal deterrence.

[34]

The applicant's personal circumstances

The applicant was born in early December 1998. He was 19 years old when he committed the offences in counts 1-4 and turned 20 shortly before the offences in counts 5-7. His youth is a factor to be taken into account in sentencing him. He had only just become an adult at the time and, where possible, the sentence should attempt to foster his rehabilitation.
The applicant has no prior criminal history. This is a mitigating factor. Because the criminal conduct occurred over a period of six months, I would hesitate in finding that he was a person of good character or, if he was when the first offence was committed, that good character is not entitled to very much weight.
The applicant's childhood was very difficult. His mother was young when he was born. I take nothing from the inconsistencies in the reports concerning his mother's precise age. I accept she essentially rejected the applicant as a very young child and that he was raised by his grandmother. I accept that he had "no substantial relationship with his mother and no relationship at all with his father."
I do not accept those parts of the history he provided to the experts which suggested that his grandmother was abusive towards him. The histories he provided to the different experts are quite inconsistent and impossible to reconcile.
I am unable to reach a conclusive finding as to whether his grandmother's partner (referred to at times as his "grandfather") sexually molested him. While the histories provided on this subject were relatively consistent, I have significant doubts about the applicant's honesty and reliability more generally. Those doubts stem from his dishonest response to the allegations when he was first arrested and from his inconsistent accounts of his use of pornography and his relationship with his grandmother.
Despite the doubts about parts of history provided, I accept the opinions of Dr Furst. I accept that, by the time he committed the offences, the applicant had developed a substance abuse disorder (alcohol and cannabis), an obsessive-compulsive disorder and a paraphilic disorder. I do not accept that the first and second of those disorders played any significant role in the offending. Ms Akthar made realistic and proper concessions as to this in her oral submissions on the appeal: "AKTHAR: Of course it can't excuse, the applicant doesn't contend that there was a compulsion by the applicant to commit the offences because of any mental health condition but what the applicant says is in the mix of factors that are to be taken into account on the instinctive synthesis exercise at sentence, the applicant at least was entitled to be sentenced on the basis that he is a person that suffers from a mental health condition. It potentially had relevance to deterrence, personal and general although the applicant also accepts the respondent's contention that were that to be accepted, this is a case where there would be a concurrent concern about what danger the applicant presented to the community. It's not a case where we say that the mental health condition was such that it explains and significantly ameliorates the offending. But the applicant does say that he was entitled to have taken into account the existence of the mental health condition, the need for treatment for the mental health condition and what impact it may have on the applicant in his lengthy sentence in custody, the fact that he has that condition. We put it no higher than that."
I accept the opinion of Dr Furst set out above at [107]. That opinion suggests an indirect causal link between the applicant's childhood experiences - in particular, his mother's rejection of him - and his diagnosed mental health conditions, especially the paraphilic disorder. This has a very modest impact on the applicant's moral culpability for the offending. On the other hand, the nature of the disorder means that great weight must be given to the protection of the community.
That need is emphasised by the various risk assessments contained within the reports. I accept the applicant has a medium to high risk of re-offending. I could not make a positive finding that he has "good prospects of rehabilitation". [24] However, I would not give up hope for his rehabilitation in view of his young age, the salutatory effect of this sentence upon him and the signs that he has developed some insight into the impact of his behaviour on his former partner. Again, I could not make a positive finding on balance that he is "unlikely to re-offend". [25]
I am unable to accept that the applicant's belated expressions of remorse fall within the mitigating factor defined in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. I accept those expressions demonstrate some insight into the impact of his conduct on the victim and I would take that into account.
I accept that the applicant has experienced a difficult time in prison. He is a young man with some mental health issues who has never been to gaol before. Throughout most of his time in custody, the prison system has implemented strict precautions against the spread of the COVID-19 virus which are set out in the report of Dr Ellis. Further, his experience of witnessing the murder of another inmate was a terrifying and traumatising experience for him. In setting the aggregate non-parole period, I would take these matters into account to make a more substantial adjustment to the non-parole period and its proportion to the total sentence. These matters are also relevant to the total sentence, but they have greater weight in setting the minimum period of incarceration. [26]

[35]

Comparative cases

The parties provided some precedents to assist the Court in consideration of the argument that the sentence imposed was manifestly excessive. The case of Ragg v R [2022] NSWCCA 150 ("Ragg") was also raised during the hearing and further written submission were provided after the hearing. The decision in R v Sharrouf [2023] NSWCCA 137 ("Sharrouf") was handed down after the first draft was circulated. I have considered the factual circumstances and sentencing outcomes in the following cases: 1. Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286 2. R v Watkins [2018] NSWDC 103 3. McGory v R [2018] NSWCCA 226 4. R v JD [2018] NSWCCA 233 5. Kiss v R [2021] NSWCCA 158 6. Ragg v R [2022] NSWCCA 150 7. R v Sharrouf [2023] NSWCCA 137
None of these cases are truly comparable, which is not to criticise counsel for bringing them to the Court's attention. Consistency in punishment is a desirable and commendable objective. However, the facts of the present case are unusual and there are features of the subjective case which are not reflected in the other cases. The facts of the case of Ragg - which resulted in a sentence of 24 years - demonstrate criminality of a far more savage kind and the physical injuries inflicted on the victim were shocking. As the Chief Judge observed at [1] the case "represents one of the most extreme cases of sadistic sexual violence perpetrated against a woman seen in this Court." His Honour referred to the conduct in Ragg as "brutal and chilling acts of violence, torture, sexual assault and subsequent intimidation that appear to have been undertaken to thoroughly dehumanise the victim". As depraved as the present applicant's conduct was, and taking into account the longer course of conduct, I am unable to find that the sentence imposed on Ragg does much to inform the proper exercise of sentencing discretion here. The case of Sharrouf bears some similarity with the present case but the offending lacked the sexual depravity demonstrated here. While there were many more offences, and the applicant was convicted after trial, the offender received a 5% discount for facilitating the course of justice. The aggregate sentence imposed by this Court (by majority) on a prosecution appeal against inadequacy was similar to that imposed on the present applicant.

[36]

Individual indicative sentences

For the sake of transparency, I will set out the indicative sentence that I would have imposed for the individual sentences. [27] Where there is a standard non-parole period attaching to the offence, I will indicate the putative non-parole period as well. [28]
The facts of count 1 are set out at [13]. The offence carries a maximum penalty of 5 years and there is no standard non-parole period. It is a serious offence of assault occasioning actual bodily harm because of the use of the knife and the threats surrounding the offence. I would indicate a starting point of 2 years.

For count 1, after the application of the 10% sentencing discount (with some rounding down), the indicative sentence would be 21 months.

The facts of count 2, and the two Form 1 offences taken into account, are set out at [14]-[15]. The offence carries a maximum penalty of 10 years imprisonment and there is no standard non-parole period. The context of the choking is demonstrated by the Form 1 offences. It was a demeaning and awful episode.

For count 2, I would indicate a starting point of 6 years, resulting in a discounted indicative sentence (with some rounding down) of 5 years and 4 months.

The facts of count 3 are set out at [16]. There is a maximum penalty of 10 years imprisonment. The victim was punished for failing to provide sexual services to the applicant who, in addition to choking her to the point of unconsciousness, spat on her and slapped her. He showed utter indifference to her suffering when she resumed consciousness.

For count 3, I would commence with a sentence of 7 years, resulting in a discounted indicative sentence (with some rounding down) of 6 years and 3 months.

The facts of count 4 and the associated Form 1 offences are recounted at [17]-[18]. There is a maximum penalty of 14 years with a standard non-parole period of 7 years. This was a shocking offence of sexual intercourse without consent involving the insertion of a knitting needle into the victim's anus. It involved violence and demeaning threats and demands. It was, as Judge Colefax found it to be, well above "mid-range" offending and approaching the upper end of the spectrum of criminality contemplated by s 61I of the Crimes Act. I would commence with a sentence of 10 years, that is a sentence approaching the maximum penalty but tempered to account for the applicant's personal circumstances.

For count 4, on application of the sentencing discount I would indicate an individual sentence of 9 years with a non-parole period of 6 ½ years.

The facts of count 5 and the associated Form 1 offence are set out at [19]-[20]. The offence carries a maximum penalty of 7 years imprisonment and a standard non-parole period of 3 years. The offending was merciless and involved the use of a weapon to inflict substantial pain on the victim who was also humiliated by demeaning verbal abuse. Again, this offence approached the upper range of seriousness contemplated by s 35(4) of the Crimes Act. I would commence with a sentence of 6 years.

For count 5, on applying the sentencing discount (with some rounding down), I would indicate a sentence of 5 years and 4 months with a non-parole period of 3 ½ years.

The facts of count 6 and the associated Form 1 offence are set out at [21]-[22]. The offence carries a maximum penalty of 14 years. The facts disclose criminality approaching the upper end of the scale of offences described as attempted sexual intercourse without consent. It seems the only reason that penetration was not complete was that the applicant was unable to insert the handle of a hammer into the complainant's vagina. The Form 1 offence involved hitting her toes with the hammer and pulling her toenail off. I would commence with a sentence of 10 years.

For count 6, if it were not an aggregate sentence, I would have imposed a sentence after discount of 9 years.

The facts of count 7 are set out at [23]. There is a maximum penalty of 5 years. The whipping of the victim with a cable was associated with degrading and humiliating verbal abuse. I would commence with a sentence of 4 years and then apply the discount, with some rounding down.

For count 7, I would indicate a sentence after the 10% sentencing discount (with some rounding down) of 3 ½ years.

I have undertaken the re-sentencing exercise, and indicated the putative individual sentences for each offence, for the sake of transparency and to ensure that I comply with the authorities that indicate that the re-exercise of the sentencing discretion must be undertaken without reference to the sentence imposed at first instance. [29] In doing so, I am conscious of various views that have been expressed as to the desirability or otherwise of indicating precisely what sentence this Court might have imposed: see RO v R [2019] NSWCCA 183 ("RO") and the discussion of the cases by Beech-Jones J (as his Honour then was) at [85]-[89] and [105]-[111] and N Adams J at [123]. I have concluded that this case fits into the unusual category where it is appropriate for me to set out the individual indicative sentence. This is the same approach adopted by Beech-Jones J in RO at [111]. [30]
What emerges from the exercise is that I would have indicated less severe sentences for some of the counts but slightly more severe sentences for others.

[37]

Aggregate sentence

It is well established that the appeal is against the aggregate sentence, and not the individual indicative sentences. [31]
The correct approach was described in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43]: "After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal …." [My emphasis.]
To determine the question to be addressed under s 6(3) - whether a less severe aggregate sentence is warranted and ought to have been imposed - consideration must be given to the question of how much notional accumulation should exist between the indicative sentences for the individual offences. This is a discretionary judgment in relation to which a key consideration is the extent to which the criminality for one offence is encompassed by the sentence imposed for another (or the others). None of the individual sentences I have indicated can encompass the whole of the criminal course of conduct admitted by the applicant. The conduct occurred over a period of around six months and each of the charged crimes were grave offences of their kind. While a significant amount of concurrency is appropriate to reflect the fact that the offences were part of the same dysfunctional and abusive relationship, each crime standing on its own warrants its own punishment. Accordingly, there must be a reasonably substantial of degree of accumulation.
When I consider the extent of notional accumulation that would be appropriate in determining the aggregate sentence and non-parole period, I have concluded that I would have imposed a sentence of at least the same magnitude as that imposed in the District Court. That applies both to the total aggregate sentence and the aggregate non-parole period. It is not appropriate to identify the aggregate sentence and non-parole period that I would have imposed.

Parties

Applicant/Plaintiff:

Giacometti

Respondent/Defendant:

Legislation Cited (3)

Crimes Act 1900(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Criminal Appeal Act 1912(NSW)

Cases Cited (20)

HEADNOTE [This headnote is not to be read as part of the judgment] On 30 April 2021 the applicant was sentenced by Judge Colefax SC in the District Court to 14 years imprisonment with a non-parole period of 9 years and 9 months, after entering a late plea of guilty to seven offences committed against his girlfriend over a nine-month period. The offences included one count of sexual intercourse without consent, one count of attempted sexual intercourse without consent, two counts of intentional choking, two counts of assault occasioning actual bodily harm and one count of reckless wounding. Five additional offences of common assault and assault occasioning bodily harm were taken into account on a Form 1. There was also evidence of several demeaning and violent uncharged acts committed by the applicant showing that the charged acts were not isolated. The applicant treated the victim as his "slave" and his "prostitute" and punished her if she did not satisfy his sexual appetite. During the sentencing hearing, the prosecution tendered a sentencing assessment report and the applicant tendered two psychiatric reports and one psychological report. The sentencing Judge found that the applicant's personal history and mental health diagnoses in these reports was inconsistent, and that the applicant was "a most unreliable historian" and a "manipulative, sadistic and dangerous young man". The sentencing Judge was not satisfied of the "accuracy or reliability" of the history provided by the applicant and disregarded most of the applicant's subjective circumstances. The applicant also tendered two reports regarding the impact of COVID-19 on prisoners. The sentencing Judge appeared to disregard the history and opinions contained in the reports and made no reference to the applicant's experience in custody. The applicant appealed against his sentence on two grounds: 1. The sentencing judge erred in declining to consider evidence of his subjective circumstances; and 2. The sentence was manifestly excessive. The Court of Criminal Appeal held (per Hamill J, Mitchelmore JA and Davies J agreeing) finding error under ground 1 but dismissing the appeal: In respect of ground 1: 1. Counsel conceded that there were inconsistencies in the applicant's history regarding the abuse he experienced by his grandmother and his use of pornography. The sentencing Judge was correct to find that the applicant's alcohol abuse did little to explain his conduct and was entitled to be guarded in accepting the accuracy and truthfulness of his history: [1], [2], [97]-[103]. 2. However, the rejection of part of the evidence based on inconsistencies in the history relating to two subject areas did not justify the rejection of almost all of the applicant's subjective case. The applicant was entitled to have his subjective and mitigating factors considered including his relative youth, lack of prior convictions and his custodial experience. The histories provided in relation to the sexual abuse by his "grandfather" and his mother's neglect were largely consistent and, along with his diagnosis of a paraphilic disorder, were quite compelling and should not have been rejected: [1], [3], [104]-[109]. Devaney v R [2012] NSWCCA 285; Lloyd v R [2022] NSWCCA 18, considered. 1. If a sentencing Judge elects to address an offender directly in delivering a judgment on sentence, a practice that is not encouraged, considerable care must be taken to ensure the language employed does not betray a lack of judicial detachment. The advantage of sentence remarks couched in the third person is that objectivity and disinterest are more easily maintained: [1], [4], [96]. As to ground 2 and in resentencing the applicant: 1. The applicant's course of conduct over many months represented sexual and violent offending of an extreme and depraved kind. The applicant's childhood experiences, and mental health conditions had only a modest impact on his moral culpability: [1], [5], [110]-[124]. 2. After setting out the indicative sentences for each offence and considering the extent of "notional accumulation" required within the aggregate sentence, the Court found that the aggregate sentence and non-parole period would have been of at least the same magnitude as the sentence imposed in the District Court. Accordingly, the Court could not find that a less severe sentence was warranted or ought to be imposed: [1], [5], [125]-[140]. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied; Ragg v R [2022] NSWCCA 150, R v Sharrouf [2023] NSWCCA 137, Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286; R v Watkins [2018] NSWDC 103; McGory v R [2018] NSWCCA 226; R v JD [2018] NSWCCA 233; Kiss v R [2021] NSWCCA 158; RO v R [2019] NSWCCA 183; Turnbull v R [2019] NSWCCA 97; Young (a pseudonym) v R [2021] NSWCCA 163; Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218; Kresovic v R [2018] NSWCCA 37, considered.

JUDGMENT

MITCHELMORE JA: I agree with the orders that Hamill J has proposed and with his Honour's reasons for those orders.
DAVIES J: I agree with Hamill J's proposed orders and reasons for those orders, but I would add the following. It may be accepted in this sentencing exercise that the sentencing judge was confronted with a number of expert opinions which contained inconsistencies among them, as a result of different histories provided by the applicant. As his Honour noted, if the applicant had given evidence at the sentence hearing the inconsistencies might have been explained. There was also no doubt that the applicant had the onus on the balance of probabilities of proving facts in mitigation.
Nevertheless, for the reasons Hamill J has clearly explained, there were some subjective matters which on any view ought to have been taken into account, including the applicant's relatively young age, his lack of prior convictions, the effects of Covid on his custodial experience, and his witnessing of the murder whilst in custody. There were also matters that, by reason of their consistent reporting (the abandonment by the applicant's mother, and the abuse by the grandfather), together with Dr Furst's diagnosis of a paraphilic disorder, ought not to have been rejected by reason only that the applicant was a poor, or an inconsistent, or a dishonest, historian.
I specifically agree with the remarks of Hamill J at [96]. The considerable advantage of sentence remarks couched in the third person rather than addressed directly to the offender is that objectivity and disinterest are more easily maintained.
Although I agree that ground 1 should be upheld, I also agree that no lesser sentence was warranted, given the serious and prolonged nature of the offending.
HAMILL J: Tristan Giacometti (to whom I will refer as "the applicant") seeks leave to appeal against a sentence imposed by Judge Colefax SC on 30 April 2021 at Campbelltown District Court. The applicant pleaded guilty to seven offences committed against his girlfriend ("LV") over a nine-month period. The sentencing Judge imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years and 9 months. His Honour's reasons were published on Caselaw NSW, and this judgment assumes familiarity with the sentencing judgment: R v Duff (a pseudonym) [2021] NSWDC 146.
The appeal was heard in this Court on 7 October 2022. The applicant raised two grounds of appeal: 1. The sentencing Judge erred in declining to consider evidence of his subjective circumstances; and 2. The sentence was manifestly excessive.
I have concluded that leave to appeal should be granted but the appeal must be dismissed. These are my reasons for those conclusions.

(1990) 169 CLR 525

(2014) 252 CLR 601

(2016) 78 MVR 191

(1936) 55 CLR 499