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Mammoliti v Callaghan

Mammoliti v Callaghan

Case [2022] ACTSC 259 21 September 2022

Objective Seriousness

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mammoliti v Callaghan
Citation:	[2022] ACTSC 259
Hearing Date:	21 September 2022
DecisionDate:	21 September 2022
Reasons Date:	28 September 2022
Before:	McWilliam AsJ
Decision:	1. The appeal is allowed. 2. The orders of Magistrate Cook made on 7 June 2022 in relation to CAN 2290 of 2022 are set aside and in lieu thereof the following orders are made: (i) A non-conviction order is made pursuant to section 17(2) of the Crimes (Sentencing) Act2005 (ACT). (ii) A good behaviour order is made pursuant to ss 13 and 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), with the appellant required to sign an undertaking to comply with the good behaviour obligations prescribed in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT)for a period of 6 months from the date of these orders.
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from Magistrates Court against conviction and sentence – whether Magistrates Court erred in the assessment of objective seriousness – whether appropriate for appellate court to re-sentence – whether non-conviction order should be made
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT)s 86 Crimes (Sentencing) Act 2005 (ACT) ss 7, 13, 17, 33 Crimes Act (ACT) Family Violence Act 2016 (ACT) ss 8, 43 Magistrates Court Act 1930 (ACT) ss 216, 217, 218
Cases Cited:	Alchin v McInerney [2015] ACTSC 300 Balthazaar v The Queen [2012] ACTCA 26 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 Buxton v R [2017] NSWCCA 169 Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Currie v R [2013] NSWCCA 267 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Elyard v R [2006] NSWCCA 43; 45 MVR 402 Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 House v The King (1936) 55 CLR 499 Keen v Tither [2010] ACTSC 130 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lee v Lee [2019] HCA 28; 266 CLR 129 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Lukatela v Apostoloff [2010] ACTSC 74 Mulato v R [2006] NSWCCA 282 Proud v Sladic [2014] ACTCA 26; 67 MVR 485 R v Johnson [2005] NSWCCA 186 R v Loulanting [2015] ACTSC 172 Roberts v Smorhun [2013] ACTSC 218 Stark v Plant [2010] WASCA 74 Thorn v Laidlaw [2005] ACTCA 49
Parties:	Dominic Paul Mammoliti (Appellant) Stephen Callaghan (Respondent)
Representation:	Counsel K Lee (Appellant) K McCann (Respondent)
Solicitors Tim Sharman Solicitors (Appellant) Director of Public Prosecutions (Respondent)
File Number:	SCA 15 of 2022
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Cook Date of Decision: 7 June 2022 Case Title: The Police v Mammoliti Court File Number: CAN 2290 of 2022

McWilliam AsJ:

The appellant, Mr Dominic Paul Mammoliti, pleaded guilty in the Magistrates…

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 Mammoliti v Callaghan

Details

AGLC: Mammoliti v Callaghan [2022] ACTSC 259
Case: [2022] ACTSC 259
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the appellant, Mr Dominic Paul Mammoliti, appealed against his conviction and sentence imposed by the Magistrates Court for contravening a family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT). The sole ground of appeal was that the sentencing magistrate erred in assessing the objective seriousness of the offence, which resulted in the exercise of the sentencing discretion miscarrying. The appellant sought that this Court on appeal exercise the sentencing discretion afresh. The appeal was heard on 21 September 2022 and reasons for judgment were pronounced on 28 September 2022.

The appeal hinged on whether the sentencing magistrate erred in assessing the objective seriousness of the offence. The court found that the magistrate did indeed err in taking into account the contravention of the court order and the family violence context as elevating the objective seriousness, when that was the nature of the offence itself. The isolated email sent by the appellant, including its contents, fell at the low range of objective seriousness, and therefore a finding that the conduct was at a medium level of objective seriousness was not open. Consequently, error was established.

Considering whether the Court should re-exercise the sentencing discretion, the Court found that a non-conviction order was within the appropriate range of sentencing options. The sentencing objectives had already been substantively achieved by a measure of punishment in the offender spending time in custody. The appellant will know that in future, the consequences of any breach of the Family Violence Order at all will also be a breach of a good behaviour order for the next six months. This is an additional protection for the victim, but beyond that point if there is any further breach, no matter how small the appellant may consider it or what explanation he has, the fact of this offence and the sentence he receives will make it more likely that the appellant will be taken into custody, and he will be at risk of being detained or sentenced for a period of longer duration than he has experienced to date.

In conclusion, the appeal was allowed and a non-conviction order was made, with the appellant sentenced to a good behaviour order for a period of six months, commencing immediately. The orders of the Court made on 21 September 2022 were as follows: (1) The appeal is allowed. (2) The orders of Magistrate Cook made on 7 June 2022 in relation to CAN 2290 of 2022 are set aside and in lieu thereof the following orders are made: (i) A non-conviction order is made pursuant to s 17(2) of the Crimes (Sentencing) Act 2005 (ACT). (ii) A good behaviour order is made pursuant to ss 13 and 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), with the appellant required to sign an undertaking to comply with the good behaviour obligations prescribed in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from the date of these orders.

Orders