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:

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.

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.

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’.

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.

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.

As a result of the assaults, both Ms Hogan and her mother had sore faces, backs and…

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.

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Details

AGLC: Saltalamacchia v R [2010] VSCA 83
Case: [2010] VSCA 83
Decision Date: 15 April 2010

CaseChat Overview and Summary

The appeal was brought by the Crown against the sentence imposed on the respondent for a series of serious criminal offences, including threats to kill, aggravated burglary, recklessly causing injury, and criminal damage. The sentencing judge imposed a total effective sentence of three years’ imprisonment but failed to consider whether part of that sentence should be suspended. The appeal was brought on the basis that the sentence was manifestly inadequate. The respondent cross-appealed, arguing that the sentence was excessive and should be reduced.

The central legal issues were whether the sentence was manifestly inadequate and whether the sentencing judge erred by failing to consider whether part of the sentence should be suspended. The Crown contended that the sentence did not adequately reflect the seriousness of the offences and the need for general deterrence, while the respondent argued that the sentence was excessive and should be reduced due to the significant mitigating factors, including prospects of rehabilitation.

The court found that the sentence was not manifestly inadequate, but the sentencing judge did err by not considering whether part of the sentence should be suspended. The court found that the respondent had strong prospects of rehabilitation, and a partially suspended sentence would better serve the purposes of sentencing. The court determined that a partially suspended sentence of three years’ imprisonment, suspended after service of one year, was appropriate. This would provide a sufficient punishment, deterrence, and rehabilitation opportunity for the respondent.

The court set aside the original sentence and imposed a new sentence of three years’ imprisonment, suspended after service of one year. The court also ordered that the respondent be subject to supervision and rehabilitation programs during the period of suspension.

Orders