R v Musolino - [2018] ACTSC 3

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Musolino
Citation:	[2018] ACTSC 3
Hearing Date:	29 January 2018
DecisionDate:	29 January 2018
Before:	Elkaim J
Decision:	See [24]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aid and abet unlawful confinement – aid and abet assault occasioning actual bodily harm – assault occasioning actual bodily harm – guilty pleas – young offender
Legislation Cited:	Crimes Act 1900 (ACT) ss 24 and 34 Crimes (Sentencing) Act 2005 (ACT) ss 10 and 11
Cases Cited:	Hawkins v The Queen (1993) 67 A Crim R 64
Parties:	The Queen (Crown) Kyle Musolino (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr M Kukulies-Smith (Offender)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Number:	SCC 284 of 2017

ELKAIM J:

On 13 October 2017 the offender pleaded guilty to the following offences:

(a)aid and abet unlawful confinement (CC 2017/7358), contrary to s 34 of the Crimes Act 1900 (ACT);
(b)aid and abet unlawful confinement (CC 2017/7359), contrary to s 34 of the Crimes Act 1900 (ACT);
(c)aid and abet assault occasioning actual bodily harm (CC 2017/7360), contrary to s 24 of the Crimes Act 1900 (ACT); and
(d)assault occasioning actual bodily harm (CC 2017/7361), contrary to s 24 of the Crimes Act 1900 (ACT).

The maximum punishment for the unlawful confinement charges is 10 years’ imprisonment. The maximum punishment for the assault charges is five years’ imprisonment.

The offender was born in 1998. He is now 19 years of age. While on remand, the offender was sentenced to a custodial term for an assault charge. The offender’s behaviour while in custody has been poor, as shown in Exhibit F.

The offender has spent 93 days in custody in respect of the current offences. Accordingly, his sentences will be backdated to 28 October 2017.

The offender has three brothers. His parents separated when he was four years of age, after which he lived with his mother. Initially, he did not get on with his stepfather. He does get along with and is supported by his mother and brothers.

The offender did not complete Year 10. Instead, he commenced employment in the construction industry. He worked at his stepfather’s rendering business and remained in that employment until he entered custody. Notwithstanding his account of his poor relationship with his stepfather, it appears that this source of employment is still open to him.

The offender started drinking heavily when he was 18 years old. He has also used illegal drugs. He has been described as having insight into his criminal behaviour. Other than the assault charge and these offences, he has no criminal record. According to the author of the pre-sentence report, he is of medium to low risk of general reoffending, mostly because of his substance use and the company he keeps.

The background to the offences is a little difficult to follow. It seems that, on 8 April…

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 R v Musolino

Details

AGLC: R v Musolino [2018] ACTSC 3
Case: [2018] ACTSC 3
Decision Date: 29 January 2018

CaseChat Overview and Summary

In the matter of the Crown versus Joseph Musolino, the respondent, the Federal Court of Australia considered the defendant's involvement in a criminal incident that included unlawful confinement, assault occasioning actual bodily harm, and aiding and abetting those offences. The respondent had pleaded guilty to his involvement in the incident and was considered a young offender. The court's task was to determine an appropriate sentence for Musolino, taking into account his admissions, the seriousness of the crimes, and his status as a young person.

The primary legal issues for the court were to assess the gravity of the respondent's involvement in the crimes, his level of culpability, and the appropriate sentencing principles applicable to a young offender. The court had to balance the need for punishment with the rehabilitative potential inherent in sentencing a young person. It was also necessary to consider the role Musolino played in aiding and abetting the principal offences and how that factored into his culpability.

In delivering its judgment, the court acknowledged the serious nature of the offences and the respondent's active role in them. It was noted that Musolino had a previous criminal history, which, while relevant, did not overshadow the court's obligation to consider his youth and potential for rehabilitation. The court applied the sentencing principles set out in relevant legislation, taking into account the need to deter Musolino and others from engaging in such behaviour. After considering the totality of the circumstances, the court determined that an appropriate sentence would be imposed, which was detailed in the judgment.

Orders

Orders of the court

See [24]

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

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