DPP v Natoli - [2016] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0247

DIRECTOR OF PUBLIC PROSECUTIONS

MARK NATOLI

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JUDGES:	OSBORN, WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 March 2016
DATE OF JUDGMENT:	11 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 35
JUDGMENT APPEALED FROM:	[2015] VCC 1629 (Judge Cohen)

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CRIMINAL LAW – Sentence – DPP Appeal – Manifest Inadequacy – Convictions for using a listening device, assault, false imprisonment, threat to kill, damaging property and possession of unregistered firearm against domestic partner – Respondent on parole for violence offences – Respondent with traumatic background suffering from PTSD –Sentenced in County Court to total effective sentence of 5 months imprisonment combined with 18 month CCO – Gravity of offending mischaracterised – Offending too serious for CCO – Numerous past breaches of non-custodial dispositions – Sentence manifestly inadequate – Not a case for exercise of residual discretion to decline to intervene – Appeal allowed – Respondent re-sentenced to total effective sentence of 3 years 6 months with 2 years 3 months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann SC with Ms M Tittensor	Chris McLennan & Co

OSBORN JA

WHELAN JA
BEACH JA:

Over more than a nine hour period commencing at around 9:30pm on 2 November 2014 the respondent subjected his long term domestic partner, MB, to a terrifying ordeal. On 7 October 2015 he pleaded guilty to offences of using a listening device, common law assault, false imprisonment, making a threat to kill, intentionally damaging property, being a prohibited person in possession of a firearm, and possession of cartridge ammunition without a licence or permit. The plea hearing was held on 7 October and 6 November 2015.

On 13 November 2015 the respondent was sentenced by a judge in the County Court as follows:

Charges on Indictment

Offence

Statutory Provision

Maximum

Sentence

Cumulation

1. Using a listening device S 6(1) of the Surveillance Devices Act 1999 2 years imprisonment 1 month imprisonment Nil

2. Assault Common Law 5 years imprisonment 4 months imprisonment and Community Correction Order (‘CCO’) for 18 months Aggregate sentence Base

3. False imprisonment Common Law 10 years imprisonment

4. Threat to kill s 20 of the Crimes Act 1958 10 years imprisonment

5. Damaging property s 197(1) of the Crimes Act 1958 10 years imprisonment $90 compensation, no further order

6. Prohibited person possess unregistered firearm S 5(1A) of the Firearms Act 1966 15 years imprisonment 4 months imprisonment 1 month

Summary offence Possessing ammunition without a licence or permit S 124(1) of the Firearms Act 1996 40 penalty units $250 fine

Total Effective Sentence:
5 months imprisonment combined with CCO for 18 months, with the following conditions:

·   50 hours community service

·   Drug treatment

·   Mental health assessment and treatment

·   Supervision

·   Re-offending prevention programs

Pre-sentence detention 25 days

6AAA Statement: 18 months imprisonment with a non-parole…

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 DPP v Natoli

Details

AGLC: Director of Public Prosecutions v Natoli [2016] VSCA 35
Case: [2016] VSCA 35
Decision Date: 11 March 2016

CaseChat Overview and Summary

The appeal heard by the Court of Appeal involved the Director of Public Prosecutions against Natoli. Natoli had been convicted of using a listening device, assault, false imprisonment, threat to kill, damaging property, and possession of an unregistered firearm against his domestic partner. The case arose from a dispute between the respondent and his domestic partner, with Natoli on parole for violence offences at the time of the incident. Natoli had a traumatic background and was suffering from post-traumatic stress disorder (PTSD). The County Court sentenced Natoli to a total effective sentence of 5 months imprisonment combined with an 18-month community correction order (CCO). The Director of Public Prosecutions appealed the sentence, arguing that it was manifestly inadequate.

The appeal centred on whether the sentence was manifestly inadequate and if the court should exercise its residual discretion to decline to intervene. The prosecution argued that the gravity of Natoli's offending was mischaracterised, and the offending was too serious for a CCO. Additionally, the prosecution highlighted that Natoli had numerous past breaches of non-custodial dispositions. The Court of Appeal examined the seriousness of Natoli's offending, his history of non-compliance with non-custodial orders, and the need for an appropriate sentence to address the risk he posed to the community.

The Court of Appeal held that the sentence was manifestly inadequate and that the appeal should be allowed. The Court found that the gravity of Natoli's offending had been mischaracterised and that the offending was too serious for a CCO. The Court also noted that Natoli's history of non-compliance with non-custodial orders demonstrated a need for a more punitive sentence. The Court concluded that this was not a case for the exercise of residual discretion to decline to intervene. The Court re-sentenced Natoli to a total effective sentence of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months. This sentence was intended to adequately address the seriousness of Natoli's offending, his history of non-compliance, and the risk he posed to the community.

Orders