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Fall v Vuolo

Fall v Vuolo

Case [2022] ACTSC 249 15 September 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Fall v Vuolo
Citation:	[2022] ACTSC 249
Hearing Date:	24 August 2022
DecisionDate:	15 September 2022
Before:	Kennett J
Decision:	See [40]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – stalking – where conviction was not recorded – whether Magistrate erred in finding offending was at the lowest level of objective seriousness – whether Magistrate erred in finding that there was extra-curial punishment – whether sentence imposed was manifestly inadequate – appeal allowed on the ground of manifest inadequacy and conviction recorded
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 17, 33 Crimes Act 1900 (ACT) s 35 Criminal Appeal Act 1912 (NSW) s 5D Evidence Act 2011 (ACT) s 4 Family Law Act 1975 (Cth) Magistrates Court Act 1930 (ACT) ss 219B, 219D, 219F
Cases Cited:	Amberger v Stagg [2019] ACTMC 26 Bennet v Daley [2021] ACTSC 159 Dalton v The Queen [2015] ACTCA 48 DD v Ilievski [2016] ACTSC 115 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions v Ristevski [2019] VSCA 287 Green v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen (1977) 137 CLR 293 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v The King (1936) 55 CLR 499 Kirby v Ali [2021] ACTSC 95 Morrison v Maher (No 2) [2022] ACTSC 63 Police v Paul Stanik [2022] ACTMC 2 R v Baker [2000] NSWCCA 85 R v Clarke (1996) 85 A Crim R 114 R v Conway [2017] ACTSC 275 R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 R v DD [2017] ACTSC 109 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v EN [2020] ACTSC 302 R v EP [2019] ACTSC 242 R v Gatica [2020] ACTSC 22 R v Hannigan [2009] QCA 40 R v Hutchinson [2014] ACTCA 29 R v Kulcycski [2018] ACTSC 9 R v McPartland & Polkinghorne [2014] SASCFC 84 R v NO (No 2) [2018] ACTSC 39 R v Riddle [2010] ACTCA 8; 4 ACTLR 153 R v TW [2011] ACTCA 25; 6 ACTLR 18 R v UG [2020] ACTCA 8; 281 A Crim R 273 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Stanford v The Queen [2007] NSWCCA 73 The Queen v Stacker [2020] ACTCA 34 Wong v The Queen [2001] HCA 64; 207 CLR 584
Parties:	Nicholas Fall ( Appellant) Teijo Tapani Vuolo ( Respondent)
Representation:	Counsel R Christensen SC ( Appellant) F J Purnell SC ( Respondent)
Solicitors ACT Director of Public Prosecutions ( Appellant) Aulich Criminal Law ( Respondent)
File Number:	SCA 13 of 2022
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Theakston Date of Decision: 20 April 2022 Case Title: Fall v Vuolo Court File Number: CC2020/14257

KENNETT J:

Following a trial in the…

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 Fall v Vuolo

Details

AGLC: Fall v Vuolo [2022] ACTSC 249
Case: [2022] ACTSC 249
Decision Date

CaseChat Overview and Summary

In Fall v Vuolo, the appellant, Nicholas Fall, sought to appeal a decision of the Magistrates Court of the Australian Capital Territory, which had convicted the respondent, Teijo Tapani Vuolo, of stalking under s 35 of the Crimes Act 1900 (ACT) but had imposed no conviction and instead made a good behaviour order for a period of 12 months. The appellant appealed on the basis that the Magistrate had erred in finding the offending was at the lowest level of objective seriousness, that there was extra-curial punishment, and that the sentence imposed was manifestly inadequate. The appeal was dismissed on the first two grounds, but allowed on the third. The Court held that the objective seriousness of the offending was not as low as the Magistrate had found, that there was no error in principle in the Magistrate taking into account the extra-curial punishment suffered by the respondent, and that the sentence was manifestly inadequate because it would not adequately deter or denounce the offending, nor was it consistent with other recent sentencing decisions. The Court set aside the sentence imposed by the Magistrate, convicted the respondent of the offence of stalking, and imposed a good behaviour order for a period of 12 months.

Orders