SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Vuolo v Fall
Citation:
[2023] ACTCA 33
Hearing Date:
19 May 2023
DecisionDate:
3 August 2023
Before:
Baker, McWilliam and Abraham JJ
Decision:
The appeal is dismissed.
Catchwords:
APPEAL – CRIMINAL LAW – Appeal against sentence – offence of stalking – whether non-conviction order should have been made – whether error in finding non-conviction order was an “outlier” – whether error in implied finding that a non-conviction order accompanied by a good behaviour order was not punishment – whether sentence nevertheless appropriate – error established but sentence under appeal appropriate – appeal dismissed
The appellant in this appeal was found guilty of one charge of stalking contrary to s 35 of the Crimes Act 1900 (ACT) (Crimes Act). That finding followed a two-day hearing conducted in the ACT Magistrates Court. The offence was found proven in relation to the appellant stalking his ex-partner on six occasions, in just over a three-month period in the same year, namely on 4 February, 8 February, 31 March, 16 April, 10 May and 14 May 2020.
On 20 April 2022, the Magistrate sentenced the appellant pursuant to s 17(2)(b) of the Crimes Sentencing Act 2005 (ACT) (Sentencing Act), which permits a sentence to be imposed without entering a conviction. A good behaviour order was imposed on the appellant for a period 12 months.
The respondent appealed the sentence to a single judge of the Supreme Court (the primary judge). The respondent argued that the sentence was manifestly inadequate or otherwise in error, including complaints that a…
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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AGLC
Vuolo v Fall [2023] ACTCA 33
Case
[2023] ACTCA 33
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the Supreme Court of the Australian Capital Territory against a decision of a single judge of that court. The appellant, Mr Vuolo, sought to quash or set aside orders made by the primary judge, which had overturned a sentence imposed by the Magistrates Court. The primary judge had set aside the original sentence, which involved a conviction and a good behaviour order, and resentenced Mr Vuolo to a conviction and a 12-month good behaviour order, backdated to the original sentence date. Mr Vuolo sought the reinstatement of the original sentence.
The appeal raised seven grounds, with the most significant relating to the primary judge's finding that the non-conviction order originally made by the Magistrate was an "outlier". The appellant argued that this finding was based on flawed reasoning, particularly because the primary judge failed to consider the case of *Wells*, where a non-conviction order was made for a stalking offence. The appellant contended that if *Wells* had been considered, the primary judge would have recognised that the Magistrate's sentence was not an outlier and that a non-conviction order was within the Magistrate's discretion. The appellant also argued that the primary judge's comparison of cases was flawed, comparing dissimilar cases.
The Supreme Court considered section 33(1)(za) of the *Sentencing Act*, which mandates that a court must have regard to current sentencing practice and patterns when determining a sentence. While the Court found one ground of appeal to be established, upon reconsideration of the Crown's appeal, it arrived at the same conclusion as the primary judge. Consequently, the Court determined that it would not interfere with the orders made by the primary judge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The appeal was upheld. On 15 September 2022, the primary judge set aside the sentence imposed in the Magistrates Court: Fall v Vuolo [2022] ACTSC 249 (primary judgment). The appellant was resentenced by a conviction being entered, and a good behaviour order again imposed for a period of 12 months, backdated to the original date of the sentence. By appeal commenced on 13 October 2022, the appellant seeks to quash or set aside the orders made by the primary judge. The appellant seeks reinstatement of the original sentence of the Magistrate. As will be explained, we have found one of the grounds of appeal established. However, on reconsideration of the Crown appeal, we would arrive at the same conclusion as the primary judge and therefore would not interfere with the orders made. In order to understand the grounds of the appeal, it is helpful to first know the conduct that was the subject of sentence and the critical part of the reasons of the primary judge. The facts found by the Magistrate in finding the respondent guilty were summarised at [4] of the primary judgment, as follows (emphasis added): The description in (e) is emphasised because it is the subject of the third ground of complaint on this appeal. In the extract of the primary judge’s reasoning that follows, the above summary was incorporated as “the features of the offending”. The grounds of appeal with the most significance for its determination all derive from five paragraphs in the primary judge’s reasoning ([30]-[34]). That critical passage is most efficiently recorded once at the outset (emphasis added): Again, the emphasised passages highlight the findings that are the subject of grounds of complaint (respectively Grounds 6, 3, 5 and 1 below) in this appeal. Seven grounds are raised, with leave to amend the notice of appeal to include the seventh ground being granted at the hearing. They are paraphrased here as follows: These two grounds may be considered together, as they raise similar issues. The appellant’s complaints are that the finding by the primary judge that the non-conviction order originally made was “an outlier” was based on flawed reasoning (Ground 1). It was said to be wrong because the primary judge did not consider the case of Wells (Ground 4), where a non-conviction order was made for the offence of stalking. If Wells had been considered, his Honour would have appreciated that the sentence imposed by the Magistrate was not an outlier and that a non-conviction order was within the sentencing Magistrate’s discretion. The reasoning leading to the finding was submitted to be flawed because the comparison was made against cases that the primary judge had already found were not comparable. Put another way, the primary judge did not compare apples with apples when finding that one was an outlier. The respondent made a number of submissions in respect of these two grounds. Those of most significance included: The starting point for resolving the competing arguments is s 33(1)(za) of the Sentencing Act, which provides that the Court must have regard to current sentencing practice and patterns when considering how an offender must be sentenced.