Saltalamacchia v R

[2010] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0623

ANDREW RICHARD SALTALAMACCHIA

v

THE QUEEN

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JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 April 2010
DATE OF JUDGMENT:	15 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 83
JUDGMENT APPEALED FROM:	R v Saltalamacchia (Unreported, County Court of Victoria, Judge Hampel, 17 April 2009)

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CRIMINAL LAW – Sentence – Threat to kill, aggravated burglary, recklessly cause injury, criminal damage – Significant mitigating factors – Sentencing judge failed to consider whether sentence should be partially suspended – Strong prospects of rehabilitation – Resentenced – Same total effective sentence of three years’ imprisonment – Suspended after service of one year’s imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Michael Brugman
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. The appellant, who is aged 28 years, has led an ordinary law-abiding life, save for events arising from his relationship with a young woman called Sheree Hogan. 

1. The appellant was brought up in a stable, close family in Geelong.  His parents are of Italian descent.  He is the youngest of their five sons.  The appellant left school in year 10 to work for three to four years in the family pizza business.  He has worked in several restaurants since then. 

1. The appellant met Ms Hogan in December 2007.  They lived together for a short time.  On 8 June 2008, some months after the relationship between the appellant and Ms Hogan had ended, the appellant telephoned Ms Hogan and requested her to drop assault charges which had been laid against the appellant arising from a fracas between the appellant, Ms Hogan, and some other persons.  When  Ms Hogan said that she would not do anything to persuade the police to drop the charges, the appellant became angry and said that he would, ‘Slit your throat’.

1. Early the following morning, the appellant drove to the house in which Ms Hogan lived with her mother.  The appellant banged aggressively on the front door.  When it was not opened the appellant went around to the back of the house and banged on a window.  Again there was no answer.  The appellant returned to the front of the house and kicked the front door in. 

1. He ran to a bedroom at the back of the house where Ms Hogan was lying asleep, jumped onto the bed and began to punch her.  Ms Hogan screamed, attracting the attention of her mother, who came in and tried to pull the appellant off Ms Hogan.  The appellant also punched Ms Hogan’s mother.  The appellant ransacked Ms Hogan’s room apparently looking for her telephone.  He then left the house and returned to his car.  He drove his car towards Ms Hogan’s parked car and rammed it a number of times causing damage to it. 

1. As a result of the assaults, both Ms Hogan and her mother had sore faces, backs and arms and the mother sustained scratches to one arm. 

1. The appellant had no prior convictions.  Ms Hogan obtained an intervention order against the appellant which he breached by telephoning her shortly before he invaded Ms Hogan’s house. 

1. As a consequence of the events on 8 and 9 June 2009, the appellant was arraigned in the County Court and pleaded guilty to a presentment containing a count of making a threat to kill (count 1), a count of aggravated burglary (count 2), two counts of recklessly causing injury (counts 3 and 4) and a count of criminal damage (count 5).  After a plea, the appellant was sentenced to be imprisoned for a term of two years on count 1, for a term of two years on count 2,  for a term of 12 months on each of counts 3 and 4 and for a term of eight months on count 5.  With a measure of cumulation, a total effective sentence of three years was produced.  The sentencing judge fixed a term of 18 months before the appellant was to be eligible for parole.

1. The appellant has been granted leave to appeal against the sentence by a single judge of this Court. 

1. There are two grounds of appeal.  One is that the sentencing judge erred in her approach to the question whether a partially suspended sentence should be imposed. 

1. Counsel for the appellant submitted to the sentencing judge that a wholly suspended sentence was appropriate. Her Honour noted that the Crown joined in that submission. She rejected it on two grounds. The first was that as the count of threat to kill was a ‘serious offence’ within the meaning of s 27(2)B of the Sentencing Act1991 (Vic), an order suspending the whole of the sentence could not be made unless there were exceptional circumstances and no such circumstances were identified. The second ground was that her Honour was not convinced that a three year total effective sentence was sufficient to reflect the gravity of the offences. Oddly enough, that was the sentence her Honour ultimately imposed.

1. The sentencing judge then considered a submission by counsel for the appellant that her Honour should suspend the balance of the sentence on the count of making a threat to kill which remained, after taking into account the 13 days pre-sentence detention the appellant had served, and fully suspending the sentences imposed in respect of other counts.  Her Honour rejected this submission saying:

I disagree with this submission.  I am firmly of the view that no sentence other than one of imprisonment with a substantial component actually served is appropriate.  I am not satisfied in respect of Count 1 that exceptional circumstances exist and I am not satisfied that it is appropriate to fully suspend the other sentences.[1]

[1]R v Saltalamacchia (Unreported, County Court of Victoria, Judge Hampel, 17 April 2009) [43].

1. In my opinion her Honour’s sentencing remarks do support the conclusion that she did not consider whether it was appropriate to partially suspend the sentence.  That course was not excluded by the absence of exceptional circumstances and her Honour was not limited to suspending all but 13 days of the sentence.

1. The other ground of appeal is that the sentence was manifestly excessive. 

1. The appellant could rely upon mitigating factors of some weight.  He pleaded guilty at an early stage.  He paid Ms Hogan for the damage to her car which the sentencing judge said demonstrated ‘acceptance of responsibility and a degree of remorse.’

1. Her Honour also said that she accepted the opinion of a psychologist that the appellant was ashamed and remorseful.  The appellant had the support of a closely knit family.  He had a good work history.  He suffered from a depressive disorder diagnosed by a psychologist, which stemmed from the still birth of a child of the appellant and a former girlfriend.  It was not suggested, however, that the depression played a part in the appellant’s offending.  A son was subsequently born to the appellant and his girlfriend.  The mother lives in Queensland with the child.  The appellant has been in regular contact with his son but that ceased upon his imprisonment.  He has effectively lost contact with his child. 

1. Apart from the offences stemming from his relationship with Ms Hogan, the appellant was of good character, to which a number of references tendered in the course of the plea attested.  Overall, I would conclude that the appellant had good prospects of rehabilitation.  On the other hand, the offences were serious.  Violence by men against women is a social evil.  The victims are to be protected by the courts and the perpetrators suitably punished.  I would endorse her Honour’s view of the seriousness of the offences. 

1. In the present case I consider that the sentence imposed in the County Court was appropriate but I would partially suspend its operation to reflect the mitigating factors I have identified.

1. I would allow the appeal, set aside the sentence passed below and in lieu thereof sentence the appellant to be imprisoned for a term of two years on count 1, for a term of two years on count 2, for a term of 12 months on counts 3 and 4 and for a term of eight months on count 5.

1. I would cumulate six months of the sentence on count 2, two months of the sentence on count 3, two months of the sentence on count 4 and two months of the sentence on count 5 upon each other and upon the sentence on count 1.  The total effective sentence is three years’ imprisonment.

1. The appellant has now spent a little more than one year in prison.  I would suspend all that remains of the sentence for a period of three years.

1. But for the pleas of guilty, I would have sentenced the appellant to be imprisoned for a term of four years and six months with a minimum term of 30 months’ imprisonment.

MAXWELL P:

1. For the reasons which his Honour has given, I agree that the appeal should be allowed and the appellant re-sentenced as his Honour proposes. 

1. I would add three brief matters.  The first is to express my specific concurrence with what the sentencing judge said about the seriousness of the offending.  This court’s disposition in re-sentencing reflects exactly the same view – by virtue of the sentence of imprisonment imposed – as her Honour took of the offending.  I respectfully agree with what her Honour said in sentencing the appellant, about the need for a person to be free to bring a relationship to an end without the other party to the relationship reacting violently:

People in Ms Hogan’s position must be allowed to freely exercise their right to terminate a relationship, to have their wishes respected even if they do not accord with the wishes of the other party to the relationship, even if the other party feels hard done by. People in Ms Hogan’s circumstances must be able and feel free to terminate a relationship without fear of violence, actual or threatened, without violation of their sense of safety in their homes and without fear of suffering damage to or destruction of their property. Where a person, even if they feel they are a jilted lover, and even if they feel they have a justifiable sense of grievance over the circumstances in which the relationship came to an end, resorts to violence, threats and wanton destruction of property directed towards the person they were in a relationship with, they must understand that if they do so, they are committing serious criminal acts and will suffer punishment at the hands of the criminal justice system. They must also accept that it is their behaviour, not that of the other party, which has put them in a position where they face criminal charges and that they must not consider that they can pressure or threaten their victims into withdrawing the charges. If they do what you have done, they must understand that such conduct too is criminal and they will be punished for it. A failed relationship, or a prospect of facing criminal sanctions for the manner in which you conducted yourself with your former girlfriend and her friends is no justification for using threats, violence and causing wanton damage to property to attempt to deter her from proceeding or in retaliation for her proceeding with being a witness in criminal proceedings. They were of course, not her proceedings but proceedings taken by the police as a result of the complaints made by her and others.[2]

[2]Ibid [37].

1. As Buchanan JA has said, the appellant appears to have strong prospects of rehabilitation.  The ability to suspend the balance of the sentence enables those prospects to be maximised.  As this Court has often said, there is a very significant community interest in the rehabilitation of offenders, an interest which must be considered side by side with the need for appropriate punishment and denunciation for anti-social conduct of this kind.[3]

   [3]DPP v Tokava [2006] VSCA 156 [21].

1. Finally, we are imposing, as her Honour did, a sentence of two years for the aggravated burglary.  In my view, counsel for the Crown was right to describe that as a lenient sentence, though as the Court pointed out (and as may be gleaned from the table of sentences for this offence set out in the judgement of the Court in DPP v El Hajje[4]), this would appear to be reflective of current sentencing practices.  As the Court said in that case, there is a real question about the adequacy of current practices, having regard to the 25 year maximum and the community expectation that home invasions be severely punished.[5]

   [4][2009] VSCA 160.

   [5]Ibid [30]-[35].

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