Legal Research
Cases
Jason Mammoliti v The Queen

Jason Mammoliti v The Queen

Link copied

Case Copied 20 March 2020 32 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0035

JASON MAMMOLITI	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	McLEISH and EMERTON JJA, CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2020
DATE OF JUDGMENT:	20 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 52
JUDGMENT APPEALED FROM:	[2019] VCC 47 (Judge Davis)

---

CRIMINAL LAW – Appeal – Aggravated carjacking – Manifest excess – Whether reasonably open to judge to impose sentence of six years’ imprisonment with non-parole period of four years – Maximum sentence of 25 years and mandatory minimum non-parole period of three years – Effect of mandatory minimum non-parole period on sentencing discretion – Serious offending against vulnerable member of community – Applicant had long history of offending – Offending occurred while subject to community correction order – Limited comparable cases – Sentence within range – Leave to appeal granted but appeal dismissed – Sentencing Act 1991 ss 5(2G), 10A, 10AD, 11(3); Crimes Act 1958 s 79A; Magaming v The Queen (2013) 252 CLR 381; DPP (Cth) v Haidari (2013) 230 A Crim R 134; Atherden v Western Australia [2010] WASCA 33; DPP v Hudgson [2016] VSCA 254, considered; Brown v The Queen [2019] VSCA 286, applied.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms S Lenthall	Papa Hughes Lawyers
For the Respondent:	Mr P Bourke	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA
EMERTON JA:

Introduction

On 22 January 2019, the applicant pleaded guilty in the County Court at Melbourne to charges of aggravated carjacking, driving whilst disqualified and failing to report an accident to police.

On 1 February 2019, the applicant was sentenced by Judge Davis as follows:

Charge	Offence	Legislation	Maximum		Sentence	Cumulation
1	Aggravated carjacking	s 79A of the Crimes Act 1958	25 years’ imprisonment		6 years’ imprisonment	Base
RSO 5	Driving whilst disqualified	s 30(1) of the Road Safety Act 1986	2 years’ imprisonment or 240 penalty units		5 months’ imprisonment	-
RSO 6	Fail to report an accident to police	s 61(1)(f) of the Road Safety Act 1986	Not less than 14 days’ and not more than 1 month’s imprisonment or 10 penalty units		14 days’ imprisonment	-
Total Effective Sentence:				6 years’ imprisonment
Non-Parole Period:				4 years
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:				227 days
6AAA Statement: 8 years’ imprisonment, with a non-parole period of 5 years and four months.
Other relevant orders: Disqualified from obtaining any licence or permit for 3 years Disposal order

The circumstances of the aggravated carjacking and the use and fate of the car subsequently are uncontroversial.

On 2 June 2018, at approximately 11:30 am, the victim, an 84 year old man, drove to the Brimbank Central Shopping Centre. Unable to find a parking spot, he pulled over on the north side of the car park, leaving the keys in the ignition and the engine running. While the victim was using his mobile phone to contact his wife, 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.

Keep reading for free

Create a free CaseChat account to read Jason Mammoliti v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSCA 52
Decision Date: 20 March 2020

CaseChat Overview and Summary

Jason Mammoliti appealed against his conviction for aggravated carjacking, seeking to overturn the six-year sentence with a non-parole period of four years imposed by the County Court. The case was heard by the Court of Appeal, which had to determine whether the sentence was manifestly excessive given the statutory maximum penalty of 25 years and a mandatory minimum non-parole period of three years. The appeal hinged on whether it was reasonably open to the judge to impose the given sentence, considering the nature of the crime and the offender's history.

The court needed to assess the balance between the judge's sentencing discretion and the statutory minimum non-parole period. The appellant argued that the sentence was manifestly excessive due to the mandatory minimum and the disparity between the actual and maximum penalties. The court considered the principles of proportionality and the impact of the crime on the vulnerable victim. Additionally, the offender's criminal history and the fact that the offence occurred while on a community correction order were crucial factors in the sentencing process.

The Court of Appeal held that it was reasonably open to the trial judge to impose the sentence in question. While the mandatory minimum non-parole period influenced the decision, the court found that the sentence was not manifestly excessive. The judge had considered the principles of proportionality, the offender's history, and the impact on the victim. The limited comparable cases did not establish a clear benchmark, but the sentence fell within the range of what could be considered appropriate. Consequently, the appeal was dismissed, but leave to appeal was granted. The sentence remained upheld as not manifestly excessive.

Orders