ACT v Pellegrino

[2019] ACTMC 16

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

ACT v Pellegrino

Citation:

[2019] ACTMC 16

Hearing Date(s):

17 April 2019

DecisionDate:

30 April 2019

Before:

Magistrate Theakston

Decision:

The provisional order for restitution of 21 May 2018 is discharged.

Catchwords:

RESTITUTION – VICTIMS OF CRIME – definition of criminal injury – whether government can seek restitution from complainant – where majority of convictions set aside – order discharged

Legislation Cited:

Victims of Crime (Financial Assistance) Act 1983 (ACT) ss 4, 10(1)(f), 53, 57(4)(a), 59(1)(b)

Cases Cited:

Australian Capital Territory v Shaor [2017] ACTMC 1

RK v Mirik and Mirik [2009] VSC 14; 21 VR 623

Parties:

Australian Capital Territory (Applicant)

Aldo Pellegrino (Objector)

Representation:

Counsel

Ms E Sherman (Applicant)

Mr M Bautz (Objector)

Solicitors

ACT Government Solicitors (Applicant)

Kamy Saeedi Law (Objector)

File Number(s):

AP 47 of 2018

MAGISTRATE THEAKSTON:

Background

1. Mr Pellegrino has objected to the Australian Capital Territory’s application for restitution from him of the amount the Territory had previously paid to a complainant by way of special assistance under the Victims of Crime (Financial Assistance) Act 1983 (ACT) (‘the Act’). The objection was made on three separate grounds. I will first describe the relevant facts, before addressing each ground separately.

Facts

1. The evidence and Court files describe the following facts in relation to the offences and the claim under the Act, and they are not in dispute:

(a)Mr Pellegrino and the complainant were in a relationship during the latter part of 2013 and the early part of 2014.

(b)In September 2015 Mr Pellegrino was convicted in this Court of seven charges relating to his conduct against the complainant.  Mr Pellegrino filed an appeal against the convictions.

(c)In November 2015 the complainant made a claim for special assistance under the Act.

(d)In December 2016 the ACT Supreme Court set aside six of the eight convictions, and remitted those six matters back to this Court for further hearing. The prosecution subsequently withdrew those charges. Those withdrawn charges involved allegations of Mr Pellegrino committing acts of indecency in the following circumstances:

(i)lifting the complainant’s dress and exposing her underwear, followed by an act of simulated sexual intercourse from behind the complainant described as “dry humping”;

(ii)touching the complainant’s genital area on the outside of her clothing while she was seated on his motorcycle;

(iii)pulling down the complainant’s upper clothing to expose one of the complainant’s breasts;

(iv)taking a photograph of the complainant when she was masturbating Mr Pellegrino;

(v)forcefully putting his finger in the complainant’s anus on the outside of her leather leggings; and

(vi)forcefully putting his finger in the complainant’s anus on the outside of her shorts.

(e)The convictions that remain relate to Mr Pellegrino committing an act of indecency upon the complainant by taking a photograph of her while she was partially undressed, and using a carriage service in a way that a reasonable person would in all the circumstances regard as being menacing by:

(i)saying in a telephone call to the complainant, ‘If anything…