Mammoliti v Callaghan
[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 Magistrates Court Act 1930 (ACT) ss 216, 217, 218 |
Cases Cited: | Alchin v McInerney [2015] ACTSC 300 Balthazaar v The Queen [2012] ACTCA 26 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 Court on 5 April 2022, to the offence of contravening a family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act). On 7 June 2022, the sentencing magistrate convicted him and imposed an order requiring Mr Mammoliti to be of good behaviour for a period of six months.
The appellant appealed the conviction, on the sole basis that the sentencing magistrate fell into error in assessing the objective seriousness of the offence, with the consequence that the exercise of the sentencing discretion miscarried. If error was established, the appellant sought that this Court on appeal exercise the sentencing discretion afresh.
The appeal was filed on 8 June 2022, which had the effect of staying the enforcement of the sentence that was the subject of the appeal: s 216(1)(a) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act).
Due in large part to the considerable assistance provided by counsel appearing for each party on the appeal, each of whom prepared detailed written submissions prior to hearing and competently developed the arguments during oral hearing, judgment on the appeal was able to be pronounced following the hearing. 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. At the time of delivering the sentence, I indicated that reasons would shortly follow. These are the reasons.
The Court’s power on appeal
The Court’s jurisdiction on appeal is exercised pursuant to Part 3.10 of the Magistrates Court Act, which includes appeals against sentences imposed by it, regulated by divs 3.10.1 and 3.10.2 (in particular, ss 207 and 208) of that statute.
The starting point is restraint. A sentence imposed in the Magistrates Court will not be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. There is a strong resistance against appellate “tinkering” with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [62].
From there, the question is whether error has been established. The Court will exercise its powers to intervene only where, having regard to all the evidence before it, including any further evidence admitted on the appeal, it is established that the order appealed from is the result of a legal, factual or discretionary error. That might be through a specific error, such as the failure to consider a relevant consideration or misapplication of principle (see House v The King (1936) 55 CLR 499 at 505). Alternatively, the error, though not identifiable, might be inferred from the sentence being manifestly excessive or inadequate, unreasonable, or plainly unjust or wrong: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Dinsdale at [6] per Gleeson CJ and Hayne J.
In working out whether error has been established, the task for a court of appeal is to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Where the facts are not in dispute (as was the case here) an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from the facts: see Lee v Lee [2019] HCA 28; 266 CLR 129 at [55] and the cases there-cited.
If specific error is found, it becomes the duty of the appellate court to re‑sentence, unless in its exercise of the discretion the Court determines that no different sentence should be passed: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35].
In the ACT, judicial summaries that are consistent with (and broadly apply) those above principles may be found in cases such as Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 at [8]-[12] per Refshauge J; and Keen v Tither [2010] ACTSC 130 at [44] per Penfold J.
Did the sentencing magistrate err in assessing the objective seriousness of the offence?
The finding under challenge concerns the objective seriousness of the offence, which the magistrate found was at a “medium point” on the scale. The appellant argued that was an error because the objective seriousness of the conduct itself was low. It was submitted that in forming the view his Honour did, the sentencing magistrate impermissibly conflated the elements of the offence itself with the conduct requiring evaluation as to the level of objective seriousness.
To work out whether that is what occurred, some understanding of the offence and its elements is necessary. The offence under s 43(2) of the Family Violence Act is as follows:
Offence—contravention of family violence order
(1)This section applies to a person against whom a family violence order is made if the person—
(a)was present when the family violence order was made; or
(b)has been personally served in accordance with this Act with a copy of the family violence order.
(2)The person commits an offence if the person engages in conduct that contravenes the family violence order (including a condition of the order).
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
…
Two things may be noted about the offence in question. First, it is a specific family violence offence. Second, the elements of the offence include that a family violence order has been made, and that it has been contravened.
The conduct giving rise to the offence was the appellant sending an email to his adult daughter in March 2022, when a family violence order, previously made by consent and without admissions was in place, which named the daughter as a protected person and prevented him from contacting her. The email read as follows:
I keep sending letters back to Suncorp. From now on I will just put them in the bin. Your refusal to do anything about your mail coming to me is harassment. Please ensure this stops or I will take legal action.
The appellant’s explanation for sending the email was that it was sent in frustration, in part because he could not find the email address for the victim’s husband (whom I infer is Sebastian Mammoliti, through whom the orders permitted him to make contact with his daughter in relation to family matters), and in part motivated by the appellant not being able to see his grandchildren.
The reasons of the magistrate
The key aspects of the magistrate’s findings and reasoning process are as follows (emphasis added):
The real difficulty for you is that a court put in place an order and that order needed to be complied with… In relation to most court orders, and it’s often recounted in matters where courts put in place licence suspension orders, so you drive whilst disqualified by a court order and yet you drive again and the court regards that as contumelious offending.
…the very thing you are doing is contravening an order to which a protected person sought the assistance of the court to stop you from doing the things that you were doing and [have] done so.
That’s what makes it difficult in relation to these matters and that’s what makes it objectively serious in my view. Yes, the offending and what is done is at the lower end, but contravening a court order in relation to these matters, particularly in family violence, keeps these matters towards the medium point of the scale of objective seriousness in my view.
…
I have been asked to consider whether or not I should give a section 17, no conviction to be recorded….
It’s not at the lower end. While the content of the breach is low end, the breach is, nonetheless, a breach of a court order and I’m satisfied it still falls towards the medium point of seriousness. …
I am satisfied on this occasion that it’s not appropriate that I should exercise my discretion, having regard to the serious nature of the – the objective seriousness of the offending I should say, and the breach of a court order, a court imposed order.
Applicable principles
The assessment of the objective seriousness of conduct constituting an offence has been likened to evaluative fact-finding: see Mulato v R [2006] NSWCCA 282 at [46] (Mulato). The question is whether the particular characterisation given to the circumstances of the offence by the sentencing magistrate was open in the particular case: Mulato at [37].
The error of which the appellant complains is succinctly captured in what was said in R v Johnson [2005] NSWCCA 186 by Hunt AJA (with whom Hulme J and Johnson J agreed) at [22] (emphasis added):
…A matter is taken into account by way of aggravation of sentence when, by reason of that matter, the judge imposes a sentence more severe than he or she would otherwise have imposed: The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 388. In my view, it is a fundamental principle of sentencing which needs no statute to support its existence that a matter may not be taken into account in aggravation of sentence if it is already an element of the crime, for that would necessarily amount to double counting of the same matter. …
Specifically in relation to the offence in question, in Roberts v Smorhun [2013] ACTSC 218, Refshauge J stated at [133]:
[the sentencing magistrate] stated that the conduct occurred in the context of a domestic violence circumstance [which] was an aggravating feature. That cannot be so, as the offence was contravening an order that was a domestic violence order; hence it could only be contravened in a domestic violence circumstance as that was the nature of the order.
Alchin v McInerney [2015] ACTSC 300 (Alchin) is to similar effect. The appeal before Robinson AJ concerned the contravention of a domestic violence order contrary to s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT). As submitted by the appellant in the present case, that offence provision was the predecessor to s 43(2) of the Family Violence Act. It applied generally to protection orders, which included domestic violence orders, personal protection orders and workplace orders.
Robinson AJ considered a similar ground of appeal, that the sentencing magistrate erred in taking into account the context of domestic violence as an aggravating feature, as the offence of contravening a domestic violence order can only be committed in such a context: Alchin at [36]. His Honour stated at [43]-[44]:
43. The offence of contravening s 90(2) of the Act does not require proof of any harm to the complainant. An offender, for example, may simply breach an order by going to a place where he has been prohibited from going by the order of the Court. On the other hand, it is inherent in the offence that the offender and the complainant have a past connection between them. That connection is the reason why an order was made by the Court in the first place. One of those possible connections is that which would bring about a domestic violence order.
44. An element of an offence or an inherent characteristic of the offence or class of offences should not be treated as an aggravating factor because of the risk of double counting: Elyard v R [2006] NSWCCA 43.
The parties agreed that the general principle reflected in Elyard v R [2006] NSWCCA 43; 45 MVR 402 was applicable, notwithstanding that it concerned specific sentencing legislation in NSW.
Finding on appeal – the reasons reveal error
The prosecutor argued that, as has been observed numerous times, the ex tempore reasons of a magistrate must not be picked over, and a degree of latitude ought be afforded, citing among others Buxton v R [2017] NSWCCA 169 at [53]; Currie v R [2013] NSWCCA 267 at [50].
With that in mind, the prosecutor submitted that when read in their entirety, the reasons did not demonstrate error. It was submitted that the magistrate did not use the words “aggravating”, and that while some of the language was infelicitous, viewed as a matter of substance and not form, the magistrate was directing attention to the content of the email itself as rendering the offence more objectively serious.
I accept that the Court is to look behind what might be loose language with a view to considering the substance of the reasons and not the form in which they are expressed. However, the extracts of the magistrate’s reasoning above make it plain that the magistrate did take into account the presence of elements of the offence itself in assessing its objective seriousness. The words I have emphasised in the final paragraph of the magistrate’s reasons extracted above further establish that it was an error that carried through to the exercise of the sentencing discretion and whether to make a non-conviction order.
In this instance, the substance of the magistrate’s reasoning was that the breach or contravention of the court order “particularly in family violence” was what made the offence more objectively serious. Both the fact of the contravention and the fact that it occurred in a family violence context were inherently part of this specific offence.
On the straightforward application of the authorities referred to above, although the word “aggravating” was not used, the substance of the magistrate’s reasoning was to take into account breaching the court order and the family violence context as elevating the objective seriousness, when that was the nature of the offence itself.
The prosecutor attempted to preserve the finding of a medium level of objective seriousness as being nevertheless open. However, as submitted by the appellant, this offence covers a very broad range of conduct that extends through to actual face to face contact and to violent acts against the person to whom protection has been afforded. The fact that the sending of the email was deliberate and the breach of the order was not a mistake or inadvertent means that the conduct cannot be described as de minimis, but I was unable to accept that the isolated email sent, including its contents, fell at anything other than the low range of objective seriousness.
As a finding that the conduct was at a medium level of objective seriousness was not open, error was established.
Should the Court re-exercise the sentencing discretion?
Section 218 of the Magistrates Court Act permits the Supreme Court to (among other things) give the judgment or make the order that in all the circumstances it considers appropriate. The prosecutor submitted that even if error were established, the Court would not conclude any different sentence was warranted in law.
It was argued that the recording of a conviction is a formal mark of society’s disapproval of the wrongdoing and also forms part of the offender’s punishment: Lukatela v Apostoloff [2010] ACTSC 74 at [29]. A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The absence of a conviction has been described as an “exceptional outcome”: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [42], citing Stark v Plant [2010] WASCA 74 at [18].
All of those submissions must be accepted. However, an exceptional outcome does not require exceptional circumstances before a non-conviction order may be imposed. What is required is “compelling circumstances” to be demonstrated before a court is “persuaded to deviate from the ordinary consequence of criminal offending”: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 at [49] per Burns J, who went on to state:
The section is not a “first offenders” provision, so that a lack of prior convictions would not, of itself, ordinarily satisfy the requirement to demonstrate compelling circumstances justifying a non-conviction order. Virtually every offender who comes to be sentenced by a court will put material before the court concerning their character, antecedents, age, health, or mental condition. Many will also suggest that the offence was committed under extenuating circumstances. When properly analysed, in most cases the material will not take the offence or the offender outside the ordinary.
Relying on those authorities, the prosecutor submitted that nothing in the present case placed the offence outside the ordinary, such as to justify proceeding by way of a non-conviction order.
Emphasis was placed on the importance of deterrence and the maximum penalty of five years’ imprisonment as an indicator of the seriousness of the offence itself. In this regard, the prosecutor drew attention to the general purpose of protection orders, which was discussed in the context of apprehended violence orders by Spigelman CJ in Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [20] (emphasis added):
The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended violence orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.
So much may be accepted. A scheme which protects a person by court order, in this case a person who fears family violence as defined in the Family Violence Act (s 8), depends very much on those who are subject to the orders complying with them. If there is a perception that the full force of the consequences of a breach may not be visited upon those who commit such offences, there is a risk that protection orders may, over time, be viewed as something of a toothless tiger. One of the obvious consequences of such a perception is that people who may very much be in need of this type of order may not come forward to seek that protection in the first place.
The sentencing objectives are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). They include deterring the offender and other people from committing the same or similar offences, denouncing the conduct of the offender, promoting the rehabilitation of the offender, making the offender accountable, recognising harm done to the victim and the community and ensuring that the offender is adequately punished for the offence in a way that is just and appropriate. Given that one of the statutory sentencing objectives includes recognising the harm done to the community, the broader damage done to society by breaches of protection orders, including the flow on effects I have mentioned above, forms part of the considerations on sentence.
But it does not follow that invariably a conviction is the only means by which the objectives of compliance (or deterring people from breaching court orders) is achieved. In Alchin, Robinson AJ first acknowledged (at [33]) that compliance with any type of protection order is essential in protecting members of the community from violence and anti-social behaviour, and that it is open to the Court to impose upon an offender a stern penalty to seek to achieve that end, before emphasising at [34]:
…however, the fundamental proposition is that any punishment has to be proportionate to the offending.
It is also to be borne in mind that a sentence of imprisonment should never exceed the minimum that is necessaryto accomplish relevant sentencing objectives: see Thorn v Laidlaw [2005] ACTCA 49 at [30]. I think the same must be true of any sentence to be imposed by the Court.
The matters set out in s 33(1) of the Sentencing Act insofar as they are relevant and have not already been discussed above are generally summarised as follows.The circumstances here involve a 66-year-old man, who is otherwise of good reputation and character, and who has no criminal antecedents apart from two minor traffic fines in the 1980s. He pleaded guilty to the offence at the earliest opportunity. References for the appellant attest to the breakdown of his marriage and subsequent estrangement from his children and particularly his grandchildren, which led to him sending one email which, while terse, contained no threats of violence and which was of low objective seriousness. He has communicated to his friends who provided character references, and to the court, that he is most apologetic about what he did.
It is very clear that the breakdown in the family relationship is a source of great distress on both sides, but the appellant’s explanation for the offending as being borne of frustration and sadness in the denial of access to grandchildren does not mitigate the offence. There are other ways by which grandparents can obtain access to the grandchildren they love, such as through applying for a parenting order.In R v Loulanting [2015] ACTSC 172, a similar reason was given for breaching a protection order made under earlier legislation. Refshauge J stated at [40]:
The denial of access to his son is again an explanation, but it does not mitigate the offence. There are mechanisms that our community provides for addressing such claims and, even where the denial of access to have been capricious, it does not justify such behaviour, though provocation may reasonably affect the seriousness of the offence. …
The victim has also put before the Court a victim impact statement. It dispels any suggestion that the email might have been inconsequential for her. She referred to the psychological impact that the receipt of the email has had on her and the impact for how she parents her two children. She considers that she is in a state of hyper-awareness and constant anxiety. She feels like the Family Violence Order is worthless in her father’s eyes and displays continued disrespect for her wellbeing.
As a result of his conduct, the appellant was arrested. Notwithstanding that he participated in an interview in the early evening and admitted to the offence, he has served a night in custody. Given that a Court Attendance Notice was issued, it is unclear on the evidence before the Court why the appellant was held in custody overnight. Although that is not to be taken as any criticism of those who made the decision at the time, it is a feature of this offender’s circumstances and affects what may now be punishment that is appropriate and proportionate to the offending.
The sentencing objectives, particularly of recognising the impact on the victim and deterrence with a view to ensuring compliance with court orders, have already been substantively achieved by a measure of punishment in the offender spending time in custody. This cannot be ignored in a decision of whether a conviction ought to be entered, as the conviction itself constitutes an additional punishment. In my view, when the particular circumstances of this appellant, the nature of the conduct and the time spent in custody combine, the balance is tipped to establish compelling reasons not to impose a conviction, with the good behaviour order that was imposed by the sentencing magistrate being all that was necessary. 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. That 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.
Conclusion
For the above reasons I was persuaded that this was a case where a sentence than that imposed by the magistrate was warranted in law, and that a non-conviction order under s 17(2)(b) of the Sentencing Act was within the appropriate range of sentencing options, having regard to the principle that the punishment should be the least necessary to achieve the sentencing objectives. I determined that the discretion not to enter a conviction should be exercised, on the condition that the appellant be subject to a good behaviour order for a period of six months.
Accordingly, 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) 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 six months from the date of these orders.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour, Associate Justice McWilliam Associate: Aislinn Grimley Date: 28 September 2022 |
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