About the case
Giri v The Queen [2022 VSCA 64] was a sentence appeal from the County Court to the Court of Appeal. The client was charged with the following; sexual penetration of a child under 16; using a carriage service for indecent communication to a child under 16; sexual assault of a child under 16; and supplying a drug to a child.
The applicant was a youthful offender with a full scale IQ of 66, who was diagnosed with Autism Spectrum Disorder and ADHD.
- Aged 18-20 at the time of offending
- Early PG
- No prior criminal history
- Engaged in significant rehabilitation in the interim period
- Full scale IQ of 66, with Autism Spectrum Disorder
The matter proceeded as an early guilty plea, where the Judge at first instance imposed 12 months gaol with a 2 year Community Corrections Order with 200 hours of service, and rehabilitation & treatment conditions.
Ground 1. The learned Judge erred in sentencing the applicant on a factual basis not accepted by the defence.
Ground 2. The sentence was manifestly excessive.
Ground 3. The learned Judge erred in sentencing the applicant as a serious sexual offender.
In relation to ground 1, the finding of their Honours was that it was unnecessary to consider De Simoni in circumstances where the Sentencing Judge had taken adverse facts to the accused into account which were outside of the plea of guilty to the charge, in circumstances where those facts were not accepted by the defence and were not established beyond a reasonable doubt by the prosecution.
Their Honour’s found that in these circumstances the Sentencing Judge was not permitted to take into account those aggravating facts, whether limited to Victim Impact or otherwise. Although not decided, if the prosecution had established those facts, it might be the case that the prosecutor was right in relation to the admissibility of those facts for purposes of considering victim impact only, regardless that the charge was something less than rape. Ultimately the question was not decided by the Court.
In relation to Ground 3, their Honours ruled that the charges could not serve two purposes, in that the charges could not be both the offence that made the applicant a serious offender and a then a relevant offence for which he was to be sentenced and therefore that the serious sex offender provisions were not enlivened.
Notwithstanding the the finding in relation to ground 1 by the court, considering that Senior Counsel for the respondent submitted that it was not open for those facts in dispute to be simply ‘jettisoned’ and that the appropriate course would be, that the matter would need to be remitted back to the County Court for determination, Counsel for the applicant took a more pragmatic view and abandoned ground 1 to allow the Court of Appeal to proceed with the re-sentencing exercise.
Accordingly the applicant was re-sentenced to 40 days PSD and a 2 year CCO on the same terms.
Reasoning for Sentence:
- The applicant had a full scale IQ of 66 and was diagnosed as having an intellectual disability and autism spectrum disorder, as such in applying Muldrock and Veen v R, their honours noted that;
- the applicant was not an appropriate vehicle for the principles of general or specific deterrence considering that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example of, to others
- Further noting that given the above, it was appropriate to substantially lessen the applicants moral culpability.
- The applicant was a young offender
- That Worboyes was relevant considering the early PG.
- The an early PG was of significance given the age of the complainants and the nature of the complaints.
- That the applicant had already done 40 days much of which was served in isolation and in absence of any family visits.