R v Gatti

Case [2018] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gatti [2018] QCA 98

PARTIES:

R
v
GATTI, Mario Gino
(applicant)

FILE NO/S:

CA No 236 of 2017
SC No 443 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 28 September 2017 (Bowskill J)

DELIVERED ON:

29 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2018

JUDGES:

Morrison and Philippides JJA and Brown J

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was convicted of: unlawful stalking with violence in contravention of a domestic violence order (count 1); burglary with violence whilst armed (count 2); and malicious act (grievous bodily harm) with intent to cause grievous bodily harm (count 4) – where the applicant was sentenced to concurrent terms of imprisonment of seven and a half years on count 4, two years imprisonment on count 2 and 18 months imprisonment on count 1 – where the applicant seeks leave to appeal against his sentence imposed on count 4 – whether the sentence imposed took into consideration the applicant’s personal circumstances and psychological health – whether the overall sentence imposed was manifestly excessive – whether the sentences imposed were within the sound exercise of the sentencing discretion – whether leave should be granted for the applicant to appeal against sentence

Penalties and Sentences Act 1992 (Qld), s 9(10A)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied
R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248, cited
R v Amery[2011] QCA 383, considered
R v Clark[2017] QCA 318, considered
R v Cobb[2016] QCA 333, considered
R v Granato[2006] QCA 25, considered
R v Holland[2008] QCA 200, considered
R v Laing[2008] QCA 317, considered
R v Murray[2010] QCA 266, considered
R v Piper[2015] QCA 129, considered
R v Rix[2014] QCA 278, considered
R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, considered
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied

COUNSEL:

A J Kimmins for the applicant
J A Wooldridge for the respondent

SOLICITORS:

Brooke Winter Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with the reasons of Philippides JA and the order her Honour proposes.

  2. PHILIPPIDES JA:  The applicant was charged with the following four counts: unlawful stalking with violence in contravention of a domestic violence order (count 1); burglary with violence whilst armed (count 2); attempted murder (count 3); and,…

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AGLC
R v Gatti [2018] QCA 98
Case
[2018] QCA 98
Decision Date

CaseChat Overview and Summary

The case of R v Gatti involves the applicant, who was convicted of various offences, including unlawful stalking with violence in contravention of a domestic violence order, burglary with violence whilst armed, and a malicious act (grievous bodily harm) with intent to cause grievous bodily harm. The applicant was sentenced to concurrent terms of imprisonment of seven and a half years on the malicious act charge, two years imprisonment on the burglary charge, and 18 months imprisonment on the stalking charge. The applicant sought leave to appeal against the sentence imposed on the malicious act charge, specifically arguing that the sentence did not take into consideration his personal circumstances and psychological health, and that the overall sentence was manifestly excessive.

The central legal issues in this case were whether the sentence imposed on the malicious act charge took into consideration the applicant’s personal circumstances and psychological health, whether the overall sentence imposed was manifestly excessive, and whether the sentences imposed were within the sound exercise of the sentencing discretion. Additionally, the court had to determine whether leave should be granted for the applicant to appeal against the sentence.

The court held that the applicant’s argument that the sentence imposed was manifestly excessive and did not adequately consider his mental health was not persuasive. The court emphasised that sentencing judges are allowed significant flexibility in determining the appropriate sentence, and that comparable cases are not to be viewed as marking the precise limits of a sentencing judge’s discretion. The court noted that to succeed on the application, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. Given that the sentencing judge had considered the applicant's mental health and personal circumstances, the court found that the sentence imposed was within the permissible range and was not manifestly excessive.

The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant’s primary contention, however, was that, having made findings in the sentencing remarks, effectively accepting the submissions made by defence counsel and the concessions made by the prosecution as to the applicant’s mental condition, her Honour ought to have also accepted the applicant’s submission as to penalty by sentencing at the lower end of the appropriate range. The applicant argued that the relevant comparatives indicated that an appropriate range in the present case was one of five to seven years, referring to R v Cobb,[1] R v Murray,[2] R v Amery,[3] R v Piper,[4] R v Laing[5] and R v Granato,[6] which were placed before the sentencing judge. Additionally, reference was made to R v Holland.[7] The failure to adopt such an approach resulted in a manifestly excessive sentence. It was submitted that this Court should re‑exercise the sentencing discretion by imposing a sentence in relation to count 4 of six years imprisonment, with eligibility after having served two years and a declaration of the presentence custody as time served under the sentence (resulting in an eligibility date of 28 May 2018).[1][2016] QCA 333.[2][2010] QCA 266.[3][2011] QCA 383.[4][2015] QCA 129.[5][2008] QCA 317.[6][2006] QCA 25.[7][2008] QCA 200 at [63] and [64].Consideration In relation to the submission that the applicant’s mental health was of “particular relevance” to the issue of premeditation, no challenge was made to the finding that there was premeditation involved in the applicant taking a knife with him to the complainant’s unit. Further, it is to be observed, as the respondent submitted, that the sentencing judge did not find a direct correlation between applicant’s depressive symptoms and the premeditative element of the offending in count 4. Moreover, that offending was not isolated but occurred against the background of stalking and police intervention. As to s 9(10A) of the PSA, which requires a sentencing judge to treat the fact that an offence is a domestic violence offence as an aggravating feature, the provision itself does not indicate a particular focus on deterrence per se, as the applicant’s submission seems to assume. An offender’s mental health may be relevant (together with other matters) in determining if there are “exceptional circumstances” within the meaning of s 9(10A) of the PSA. However, there was no need to consider that matter as it was not raised as an issue. Nor did the prosecution did not seek to distinguish the present case from earlier cases on the basis of the operation of s 9(10A) of the PSA. In relation to the submissions concerning comparatives, High Court authority establishes the following propositions. Comparable cases, such as there may be, are not to be viewed as marking with numerical precision the outer bounds of a sentencing judge’s permissible discretion in the sentencing of an offender in another case.[8] Accordingly, to succeed on the application, it is not enough for the applicant to establish that the sentence imposed was even markedly different from examples placed before the Court of sentences imposed in other matters.[9] What must be demonstrated is that the difference is such that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust”.[10] In that context, and consistent with the understanding that there is no single correct sentence, judges at first instance are to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.[11][8]Barbaro v The Queen (2014) 253 CLR 58 at [41]; Hili v the Queen (2010) 242 CLR 520 at [54].[9]Hili v The Queen (2010) 242 CLR 520 at 538-539, citing Wong v The Queen (2001) 207 CLR 584.[10]Hili v The Queen (2010) 242 CLR 520 at [58].[11]Markarian v The Queen (2005) 228 CLR 357 at 371.