Ursino v Mulino
[2014] ACTSC 201
•3 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ursino v Mulino |
Citation: | [2014] ACTSC 201 |
Hearing Date(s): | 3 July 2014 |
DecisionDate: | 3 July 2014 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. Orders of Magistrate confirmed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – appeal and new trial – appeal against sentence – sentence manifestly excessive or inadequate – magistrate entirely accumulated sentences relating to most offences rather than partially accumulated them |
Parties: | Roy Anthony Ursino (Appellant) Nadia Maria Mulino (Respondent) |
Representation: | Counsel Mr J Sabharwal (Appellant) Ms E Beljic (Respondent) |
| Solicitors Mark Fleming Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 15 of 2014 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Special Magistrate Doogan Date of Decision: 6 February 2014 Case Title: The Queen v Ursino Court File Number(s): CC No 1783 of 2013 |
MURRELL CJ:
Introduction
The appellant appealed from sentences of imprisonment imposed by Special Magistrate Doogan on 6 February 2014. Her Honour sentenced the appellant to the following periods of imprisonment for offences committed on the following dates:
(a)Contravene protection order (15 January 2013) – three months’ imprisonment;
(b)Breach of good behaviour order (damage property) (8 May 2012) – three months’ imprisonment;
(c)Common assault (27 August 2013) – 12 months’ imprisonment cumulative;
(d)Contravene protection order (13 September 2013) – four months’ imprisonment cumulative;
(e)Contravene protection order (13 September 2013) – four months’ imprisonment concurrent;
(f)Contravene protection order (18 September 2013) – seven months’ imprisonment concurrent with nine months’ imprisonment for the following offence;
(g)Contravene protection order (17 September 2013) – nine months’ imprisonment cumulative.
The resulting effective sentence was two years and seven months’ imprisonment from 18 September 2013 to 17 April 2016. The Special Magistrate directed that 18 months’ imprisonment was to be served in full-time detention and the balance of 13 months was to be suspended from 18 March 2015 on the appellant entering a good behaviour order.
The appeal
An appeal to the Supreme Court from an order of the Magistrates Court is a rehearing. It has been accepted that, before the Court will intervene, an appellant must demonstrate error. An error may be an express error or an inferred error (where a sentence is so unreasonable or so plainly unjust that error must be inferred).
The appellant submitted that the sentence of 12 months’ imprisonment for the assault was manifestly excessive because, in effect, it amounted to a sentence of 18 months’ imprisonment; the sentence was cumulative on two cumulative sentences of three months each.
Further, the appellant complained about specific matters. First, the appellant said that her Honour’s use of the words “beat her up” was inappropriate when there was no evidence of actual injury to the victim. Second, the appellant took exception to her Honour’s reference to his past drug use and to the fact that he had “used pretty much everything”, when there was evidence neither that he had committed the offences under the influence of drugs nor that he had “used pretty much everything”. Third, the appellant claimed that the Magistrate had failed to allow for his willingness to address underlying problems of anger management. An associated submission was that the Magistrate had failed to allow leniency on the basis of remorse.
The Special Magistrate’s reasons
In the course of her reasons, the Special Magistrate noted the following matters.
First, the offence of 15 January 2013 involved a non-violent confrontation in the context of a history of confrontation. The appellant had pleaded not guilty and indicated no remorse.
Second, the circumstances of the assault on 27 August 2013 were that the appellant attended the victim’s premises at 7 am, banged on her door for about three hours, threw objects at her premises and called out threats, including “I’m going to kill you”, grabbed the victim while she was outside her unit and struck her to the head, and then pursued her to another location where he “beat her up”, lifting her by the hair and striking her hard to the face. The appellant provided the Magistrates Court with no explanation for this conduct and the Magistrate characterised it as “gratuitous violence”.
Third, while on bail, on 13 September 2013 the appellant committed two further non-violent breaches of protection orders.
Fourth, while on bail for those matters and within days of being granted bail, he committed two further breaches of protection orders.
Fifth, the conduct involved in the breaches was aggressive and abusive. The appellant had drug problems, was 38 years of age and had a lengthy criminal history for violence involving some sentences of full-time imprisonment and had been unemployed for most of his adult life.
Sixth, the appellant had anger management issues and, to date, had been reluctant to address those problems. Despite the appellant’s assertion that he was interested in reform, the Special Magistrate had no faith in the appellant’s ability to achieve rehabilitation.
Seventh, the Special Magistrate found that the appellant was a danger to the community, had a blatant disregard for court orders and was at high risk of re-offending.
Eighth, the Special Magistrate found that the appellant demonstrated no genuine remorse. The appellant had provided a letter stating that he was remorseful but her Honour had little faith in the contents. In the course of her reasons, her Honour referred to the need for punishment, specific deterrence, general deterrence, protection of the community and denunciation.
Finally, her Honour noted the maximum available penalty for contravening a protection order, being five years’ imprisonment, and noted that the maximum penalty that could be imposed by the Magistrates Court was two years’ imprisonment. Her Honour did not note the maximum available penalty for assault, which was two years’ imprisonment, but it should be inferred that a magistrate of her Honour’s experience was well aware of that maximum available penalty, and aware of the significance of a maximum available penalty; hence her Honour’s reference to the maximum available penalty for the other matters.
Consideration
The Special Magistrate considered the objective and subjective features and had regard to the relevant maximum penalties, although, as I have said, she did not expressly refer to the maximum penalty for assault.
The appellant complained that the Special Magistrate erred in taking his substance abuse problem into account and in the way in which she characterised it.
Her Honour’s language was a little colourful, but she was understandably irate, given the history of offending demonstrated by the matters that she was considering. The complaint about the manner in which her Honour dealt with the appellant’s drug problem cannot be made out. During the hearing, the appellant’s solicitor had suggested that the appellant’s drug abuse was related to violent behaviour by the appellant. Further, regardless of whether the appellant had submitted that drug use was relevant to the offending behaviour, her Honour was entitled to refer to the appellant’s history of drug abuse. Even if drug abuse was not directly related to the offending behaviour, it was a relevant subjective circumstance to be taken into account in sentencing.
An objection was taken to the fact that her Honour characterised the appellant’s conduct in August 2013 as “beating up the victim”, although there was no evidence of frank injury.
The evidence established that the appellant engaged in a sustained attack in the vicinity of the victim’s premises after threatening that he would kill her. During the attack, the victim broke free, but the appellant pursued her and struck her several times to the face, a vulnerable part of the body. In those circumstances, while her Honour could have chosen to avoid the colourful expression “beating up”, it was open to her Honour to characterise the behaviour in that way.
Finally, it was submitted that her Honour failed to allow anything for the remorse and statements of intention to reform that the appellant made. Given the appellant’s past criminal history, and the sequence of offences for which her Honour was sentencing the appellant, her Honour was entitled to reject the appellant’s protestations about reform and remorse. An appeal court should respect the views of a first instance judicial officer in relation to matters of credit. In any event, her Honour structured the effective sentence in such a way as to allow the appellant ample opportunity to engage in supervised rehabilitation and demonstrate reform.
The assertion of manifest excess cannot be made out.
I note that the sentence of 12 months’ imprisonment had been reduced by her Honour from a starting point of 15 months’ imprisonment to reflect a s 35 discount for plea of guilty and no issue was taken that that was an appropriate discount.
A further point that was mentioned during the course of the appeal was that her Honour chose to entirely accumulate the sentences relating to most of the matters rather than partially accumulate them.
It was rather unusual to entirely accumulate sentences, but the critical question is whether the overall picture of imprisonment reflects the overall criminality in accordance with the principles of totality. In my view, it does. For a case involving a series of aggressive attacks, in the context of a lengthy history of similar behaviour, where change was considered to be unlikely, and where her Honour found that the appellant was a danger to the community, the overall picture of imprisonment is by no means excessive. It does suitably reflect the overall criminality.
Conclusion
The appeal is dismissed and the orders of the Magistrate are confirmed.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
0
0
0