Mammoliti v Callaghan

Case [2022] ACTSC 259


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:

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

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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

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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