NN v Cattuzzo - [2021] ACTSC 49

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	NN v Cattuzzo
Citation:	[2021] ACTSC 49
Hearing Date:	6 April 2021
DecisionDate:	6 April 2021
Before:	Elkaim J
Decision:	See [19]
Catchwords:	CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – manifest excess – common assault – non-conviction order sought – young person
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17
Cases Cited:	Barrett v The Queen [2016] ACTCA 38 R v AB [2017] NSWCCA 88
Parties:	NN (Appellant) T Cattuzzo (Respondent)
Representation:	Counsel J De Bruin (Appellant) N Deakes (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 2 of 2021
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 17 December 2020 Case Title: Catuzzo v NN Court File Number: CH 2020/919

ELKAIM J:

On 17 December 2020 the appellant was convicted of common assault and sentenced, by Magistrate Cook in The ACT Children’s Court, to a ten-month Good Behaviour Order.

The appellant thinks the sentence was manifestly excessive. Accordingly a Notice of Appeal was filed on 13 January 2021.

The primary submission of the appellant is that the Magistrate should have proceeded under s 17 of the Crimes (Sentencing) Act 2005 (ACT). Put more simply, the appellant should have had the benefit of a non-conviction order.

The appellant’s written submissions initially approached the appeal on the basis of a specific error on the part of the Magistrate namely “a misdirection in relation to the availability of section 17 of the Crimes (Sentencing) Act 2005”.

The complaint is that the Magistrate is said to have excluded the possibility of a non-conviction order because it was inappropriate “having regard to the expectation of not only the community but the legislation dealing with an offence of this type” (written submissions at [28]).

This is what the Magistrate said:

I am satisfied on this occasion at least that I think there is a community expectation in relation to offences of violence involving other young people and to standards which have been at least reached in this one and the severity of the attack on the young person, that the application of the discretion under section 17, notwithstanding the young person has no criminal history, was 15 years of age at the time of the offending. There is nothing before me in relation to either a physical or mental health issue, which would go one way or the other to the exercise of the discretion.
The offence is not at the low end of the scale of seriousness, it is at the medium end, that is how I have determined it.
Was there a reason for the young person to do what she did? Only on some rumour, it seems, in relation to some claim about her elder sister by the alleged young person. Nothing to do with the young person more directly.
Should I exercise my discretion in this matter? I am not satisfied it…

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 NN v Cattuzzo

Details

AGLC: NN v Cattuzzo [2021] ACTSC 49
Case: [2021] ACTSC 49
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of NN v Cattuzzo involved an appeal by the appellant, NN, against her conviction and sentence for common assault. The case was heard by Elkaim J on 6 April 2021. NN was convicted and sentenced by Magistrate Cook in the ACT Children's Court to a ten-month Good Behaviour Order for assaulting another student at school. NN argued that the sentence was manifestly excessive and that she should have been granted a non-conviction order under section 17 of the Crimes (Sentencing) Act 2005 (ACT). The appeal was based on the assertion that the Magistrate misdirected himself by excluding the possibility of a non-conviction order.

The court examined whether the Magistrate erred in his consideration of section 17 and whether the sentence was manifestly excessive. The court found that the Magistrate did not misdirect himself but rather exercised his discretion not to apply section 17, considering the community's expectations and the seriousness of the offence. The court also assessed whether the sentence was manifestly excessive without requiring a specific error. It was determined that recording a conviction was plainly unjust given the circumstances, including the appellant's young age, lack of prior criminal record, remorse, and the absence of significant harm to the victim.

The court concluded that the sentence was manifestly excessive and allowed the appeal. The conviction was set aside, and a Good Behaviour Order was imposed for ten months without convicting the appellant, in accordance with section 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT). This decision aimed to address the wrong committed while also considering the appellant's youth and the lack of lasting harm to the victim.

Orders