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Daniel Zampatti v The Queen

Daniel Zampatti v The Queen

Case [2020] VSCA 264 6 October 2020

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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:

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.

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…

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: Daniel Zampatti v The Queen [2020] VSCA 264
Case: [2020] VSCA 264
Decision Date: 6 October 2020

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