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 |
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 is appropriate having regard to the expectations of not only the community but the legislation dealing with an offence of this type.
I do not think the Magistrate misdirected himself. In my view his Honour was doing no more than saying that in the circumstances of this offence he did not think it appropriate to exercise his discretion in favour of a s 17 order. As noted by the appellant, the Magistrate was under time pressure and was not in a position “to finesse the clarity of language”.
My conclusion that there was no specific error arising from a misdirection does not however conclude the appeal. There is still the overall submission that the sentence was manifestly excessive. Such a conclusion does not require the identification of specific error (R v AB [2017] NSWCCA 88 at [57] and [58]).
The test for manifest excess was succinctly summarised in Barrett v The Queen [2016] ACTCA 38 at [34]:
It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.
I think the recording of a conviction in this matter was plainly unjust. To explain this conclusion it is first of all necessary to look at the facts of the offending. They were described by the prosecutor in this way:
…at about 12:55pm on Friday 13 March this year, Year 9 student [the victim] was in class at [redacted] High School. She was sitting on the oval at the back of the school with another student when the pair were approached by a group of female students.
One of the girls, who was later identified as the young person before the court, approached the victim saying, ‘You’ve been talking shit about me,’ or works to that effect. The victim replied that she hadn’t been talking shit to which the young person replied, ‘You have. I know you have,’ before striking the victim numerous times to her head and face with a closed fist and pulling her backwards by her hair.
The group of female students walked away and the victim and her friend went to report the incident to Student Services.
Later that evening, the victim complained of a headache, dizziness and nausea. She asked her father to call the hospital. After being unable to contact the hospital by telephone, the victim’s father took her to the Canberra Hospital for an assessment. She was medically examined and diagnosed with cerebral concussion before being discharged home.
Video footage of the incident revealed that the appellant had struck the victim 11 or more times to her head and face, either with a closed first or an open hand. She also pulled the victim by her hair. The victim was younger than the appellant, by about two years.
Although the matter had been previously adjourned to obtain a Victim Impact Statement, no such statement was provided to the Magistrate, nor was there any medical evidence indicating any lasting injury to the victim.
The appellant conceded that the assault was serious. The Magistrate confirmed this observation in his finding that the offence was “towards the medium point of the scale of objective seriousness” (Transcript at page 12-22).
On the subjective side, the appellant submitted the following matters to the Magistrate, as repeated in the appellant’s written submissions at [20]:
… the appellant:
(a)was 16 at the time of sentence;
(b)had graduated from [redacted] High School upon completion of Year 10;
(c)intended to continue with her schooling and potentially continue studying after completing Year 12;
(d)was engaged in formal sporting activity;
(e)had a positive relationship with her family;
(f)did not have any alcohol or drug relation issues, nor any mental health diagnosis;
(g)had not re-offended in the nine months since the offence;
(h)had police attend the family home in relation to the assault, something that has not happened before in her life;
(i)been subject to some punishment in the family home; and
(j)was remorseful.
The Magistrate seems to have accepted the existence of the subjective factors although he qualified his conclusion about remorse by observing that the remorse took time to emerge, at least until the early plea of guilty.
I accept that a s 17 non-conviction is an exception and certainly does not necessarily follow a first offence. On the other hand, a first offence leading to a conviction will have a lasting effect and will most likely impact upon a person’s employment prospects. I understood from the parties that a conviction becomes ‘spent’ after 5 years. This will probably take the appellant into at least the first round of her job applications.
It is not entirely clear what generated the assault. Nevertheless, it was committed by a young school student without any previous record, without any subsequent offending and, having completed Year 10 when sentenced, at the beginning of her entry into adult life. In my view these considerations, married with the subjective factors set out above and the lack of any evidence of continuing injury on the part of the victim, amounted to a clarion call for the application of s 17. This observation includes proper regard being given to the considerations set out in s 17(3).
Accordingly, I will allow the appeal and will re-sentence the appellant and apply the benefit of s 17. I still however, think that a Good Behaviour Order should be imposed to impress upon the appellant the wrong which she committed and the consequences which such actions can bear upon an offender.
Orders
I make the following orders:
(i)The appeal is allowed.
(ii)The sentence imposed on 17 December 2020 in the ACT Children’s Court is set aside.
(iii)Pursuant to s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), without convicting the appellant, I impose a Good Behaviour Order for a period of 10 months with core conditions.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: 6 April 2021 |
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