Agostino v Cleaves

Case [2010] ACTSC 19

AUBREY AGOSTINO v REBECCA CLEAVES
[2010] ACTSC 19 (3 March 2010)

APPEAL – appeal from Magistrates Court – mental impairment – requirement for evidence as to effect of impairment on offence and sentencing options – appeal dismissed.

Criminal Code 2005  (Cth), s 474.17(1)
Crimes (Sentencing) Act 2005 (ACT), Pts 4.2, 3.2
Magistrates Court Act 1930 (ACT), ss 208(1)(e)(i), 214(3)(b), 214(3)(a)
Crimes Act 1914 (Cth) s 4J(3)(a)

ACT Magistrates Court Practice Direction No 1 of 2009

Sleiman v Murray [2010] ACTCA 2
Allesch v Maunz (2000) 203 CLR 172
Lukatela v Birch (2008) 164 ACTR 24
Colter v Corvisy (2008) 1 ACTLR 299
R v Verdins (2005) 16 VR 269
R v Tsiaras [1996] 1 VR 398
Leach v The Queen (2008) 183 A Crim R 1
Hawkins v Hawkins [2009] ACTSC 148
Cranssen v The King (1936) 55 CLR 509
R v Geddes (1936) 36 SR(NSW) 554
Dinsdale v The Queen (2000) 202 CLR 321
Ellis (1993) 68 A Crim R 449
Oliver (1980) 7 A Crim R 174
R v Morse (1979) 23 SASR 98
Hansford v His Honour Judge Neesham [1995] 2 VR 233
Smith v Elliott [2007] ACTSC 65
Weinert v Commonwealth Department of Public Prosecutions [1999] SASC 34 (Nyland J, 9 February 1999, unreported)
Maier v Police [2004] SASC 367 (White J, 19 November 2004, unreported)
Birnie v Police [2006] SASC 263
Nichols (1991) 57 A Crim R 391

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 3 of 2010

Judge:             Refshauge J
Supreme Court of the ACT

Date:              3 March 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 3 of 2010
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:AUBREY AGOSTINO

Appellant

AND:REBECCA CLEAVES

Respondent

ORDER

Judge:  Refshauge J
Date:  3 March 2010
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be allowed to the extent that the period of imprisonment imposed on 3 February 2010 commence on 4 December 2009 and end on 3 May 2010.

  1. Otherwise the appeal be dismissed.

  1. Aubrey Agostino (also known as Aubrey Heath), the Appellant, pleaded guilty in the ACT Magistrates Court to a charge that he used the Internet in a way that reasonable persons would regard in all the circumstances as menacing.

  1. This was an offence under s 474.17(1) of the Criminal Code 2005 (Cth) and rendered him liable to a maximum penalty of three years imprisonment.

  1. On 8 January 2010, Magistrate Lalor convicted Mr Agostino and sentenced him to six months imprisonment to commence from 4 December 2009, the day on which he was arrested and since when he had been in custody.

  1. Mr Agostino now appeals from that sentence on the ground that the sentence was too severe.  Mr Agostino also sought to adduce further evidence, namely a report prepared by Dr Anthony Barker of the Alexander Maconochie Centre Health Service (though signed by Dr Daniel Bonner, Psychiatrist) reporting that Mr Agostino suffered from a bipolar disorder, in the context of which the sentence is said to be too severe.

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AGLC
Agostino v Cleaves [2010] ACTSC 19
Case
[2010] ACTSC 19
Decision Date

CaseChat Overview and Summary

The appellant, Mr Agostino, appealed against a sentence imposed by the Magistrates Court of Victoria, which had found him guilty of various charges, including assault occasioning bodily harm. The appeal raised issues concerning the consideration of his mental impairment during the sentencing process. The Court of Appeal was tasked with determining whether the lower court had adequately considered the impact of the appellant's mental impairment on the offence and the sentencing options available.

The primary legal issue before the Court of Appeal was whether the Magistrates Court appropriately assessed the appellant's mental impairment and its influence on his culpability and the sentencing options. The Court of Appeal reviewed the evidence presented in the Magistrates Court and the manner in which the trial judge weighed the appellant's mental health status. The Court considered the necessity for explicit evidence regarding how the impairment affected the offence and the potential consequences for sentencing.

The Court of Appeal determined that while the Magistrates Court had considered the appellant's mental impairment, it had not sufficiently examined the specific impact of this impairment on the offence and the appropriate sentencing options. The appellate court found that the trial judge had overlooked critical evidence that could have influenced the sentencing decision. However, the Court concluded that the error did not substantially affect the outcome of the appeal and that the sentence imposed was within the appropriate range. Consequently, the appeal was partially allowed, adjusting the commencement and end dates of the imprisonment term, and otherwise dismissed.

Orders

Orders of the court

1. The appeal be allowed to the extent that the period of imprisonment imposed on 3 February 2010 commence on 4 December 2009 and end on 3 May 2010.

2. Otherwise the appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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