Daniel Zampatti v The Queen

Case [2020] VSCA 264


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0120

DANIEL ZAMPATTI Applicant
v
THE QUEEN Respondent

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JUDGES: WEINBERG JA
WHERE HELD: MELBOURNE
DATE OF HEARING: 6 October 2020
DATE OF ORDERS: 6 October 2020
DATE OF REASONS: 8 October 2020
MEDIUM NEUTRAL CITATION: [2020] VSCA 264
JUDGMENT APPEALED FROM: [2020] VCC 628 (Judge Tinney)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – 10 charges of indecent act with a 16 or 17 year old child under applicant’s care, supervision or authority – Sole complainant – Delay of about 3 years and 6 months between discovery of offending and sentence – Plea of guilty – Total effective sentence of 2 years and 3 months’ imprisonment with non-parole period of 14 months – Whether sentence manifestly excessive – Whether individual sentences infringe totality principle – Both grounds reasonably arguable – Leave to appeal granted.

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

WEINBERG JA:

  1. On 13 December 2019, the applicant, Daniel Zampatti, pleaded guilty at a committal mention in the Magistrates’ Court to 10 charges of indecent act with a 16 or 17 year old child under his care, supervision or authority.  All charges related to the one complainant, whom the judge below referred to as ‘Angela’.[1]  A plea hearing proceeded in the County Court at Melbourne on 11 May 2020.

    [1]A pseudonym.

  1. On 15 May 2020, the applicant was sentenced as follows:

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 months
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…

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Daniel Zampatti v The Queen [2020] VSCA 264
Case
[2020] VSCA 264
Decision Date

CaseChat Overview and Summary

Daniel Zampatti sought leave to appeal against his sentence imposed by the Supreme Court of Victoria. He was found guilty of ten charges of indecent acts with a child under his care, supervision, or authority. The offences occurred over a period of time and involved a sole complainant. The court imposed a total effective sentence of 2 years and 3 months imprisonment with a non-parole period of 14 months. Zampatti argued that the sentence was manifestly excessive and that the individual sentences infringed the totality principle. The central legal issues were whether these arguments had reasonable prospects of success and whether leave to appeal should be granted.

The court considered whether the sentence imposed was manifestly excessive, taking into account the gravity of the offences and the need to deter similar conduct. It also assessed if the individual sentences for each charge infringed the totality principle, which requires that the cumulative sentence not be disproportionate to the overall offending. The court found that both grounds had reasonable prospects of success. The delay of approximately 3 years and 6 months between the discovery of the offending and the sentence was a significant factor in its decision. The plea of guilty was also taken into account as a mitigating factor.

Given the reasonable prospects of success on both grounds, the court granted leave to appeal. The primary reasons were the significant delay between the discovery of the offences and the imposition of the sentence, as well as the potential disproportionality of the individual sentences. The court emphasised the importance of ensuring that the sentence was just and proportionate, considering all relevant factors.

No specific final orders were outlined in the text. The grant of leave to appeal allows Zampatti to challenge the sentence on the merits in the Court of Appeal.

Orders

Orders of the court

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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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