Mammoliti v Callaghan

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.