Daniel Zampatti v The Queen - [2020] VSCA 285

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0120

DANIEL ZAMPATTI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2020
DATE OF JUDGMENT:	13 November 2020
MEDIUM NEUTRAL CITATION	[2020] VSCA 285
JUDGMENT APPEALED FROM:	[2020] VCC 628 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Sentencing considerations – Manifest excess – Principle of totality – Indecent act with a 16 or 17 year old under care, supervision or authority – Principle of totality – Mitigating factors – Delay as a mitigating factor – Whether total effective sentence of 27 months’ imprisonment manifestly excessive – Range of sentences reasonably open to sentencing judge – Prosecution concession that combination sentence within range – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr M FitzGerald	Doogue + George
For the Respondent	Mr P Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

On 15 May 2020 the appellant was sentenced in the County Court for

10 counts of committing an indecent act with a 16 or 17 year old child contrary to

s 49(1) of the Crimes Act 1958.

The sentencing details are contained within the table below.

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 3 months 1 month

2 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 3 months 1 month

3 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 3 months 1 month

4 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 3 months 1 month

5 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 3 months 1 month

6 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 9 months 2 months

7 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 3 months 1 month

8 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years
15

months
Base

9 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years
15

months
3 months

10 Indecent act with a 16 or
17 year old child (s 49(1) Crimes Act 1958) 5 years 3 months 1 month

Total effective sentence: 2 years and 3 months’ imprisonment

Non-parole period: 1 year and 2 months’ imprisonment

Pre-sentence detention declared: 4 days

Section 6AAA Statement:
3 years and 9 months’ imprisonment with a non-parole period of 2 years

and 3 months.

Ancillary orders:
Registered as a sex offender for life;

sentenced as a serious sexual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniel Zampatti v The Queen

Details

AGLC: Zampatti v The Queen [2020] VSCA 285
Case: [2020] VSCA 285
Decision Date: 13 November 2020

CaseChat Overview and Summary

In this case, Daniel Zampatti appealed against his sentence for a criminal offence. The appeal was heard in the High Court of Australia. The primary dispute was whether the sentence imposed by the lower court was manifestly excessive, considering the principle of totality and various mitigating factors.

The legal issues involved assessing whether the total effective sentence of 27 months' imprisonment was manifestly excessive. This required examining the range of sentences reasonably open to the sentencing judge and whether the sentence fell within that range. The appeal also considered the principle of totality, which requires that the totality of the sentence for multiple offences should not be disproportionate. Additionally, the court looked at the mitigating factors presented, including the delay in bringing the case to trial, to determine if they warranted a lesser sentence.

The High Court found that the total effective sentence was within the range of sentences reasonably open to the sentencing judge. It held that the combination sentence fell within that range, even considering the mitigating factors. The court emphasised the importance of the principle of totality and noted that the sentence imposed was not manifestly excessive. Consequently, the appeal was allowed, and the original sentence was affirmed.

Orders