Vuolo v Fall

Case [2023] ACTCA 33


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

Legislation Cited:

Crimes Act 1900 (ACT) s 35

Crimes Sentencing Act 2005 (ACT) ss 7, 17, 33
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

Magistrates Court Act 1930 (ACT) s 219F

Cases Cited:

Balthazaar v The Queen [2012] ACTCA 26

Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495
Fall v Vuolo [2022] ACTSC 249
Frahm v R [2014] NSWCCA 10
Hili v The Queen [2010] HCA 45; 242 CLR 520
Kinnane v Beattie [2022] ACTSC 265; 372 FLR 358
Proud v Sladic [2014] ACTCA 26; 67 MVR 485
R v AB [2022] NSWCCA 3
R v CV [2013] ACTCA 22; 223 A Crim R 67
R v Ingrassia (1997) 41 NSWLR 447
R v Mauger [2012] NSWCCA 51
Tracey v The Queen [2020] ACTCA 51
Wells v Mount [2020] ACTSC 333

Wong v The Queen [2001] HCA 64; 207 CLR 584

Parties:

Teijo Tapani Vuolo ( Appellant)

Nicholas Fall ( Respondent)

Representation:

Counsel

F J Purnell SC ( Appellant)

K McCann ( Respondent)

Solicitors

Aulich Criminal Law ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

ACTCA 60 of 2022

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Kennett J

Date of Decision:          15 September 2022

Case Title:  Fall v Vuolo

Citation: [2022] ACTSC 249

The Court:

  1. 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. 

  1. 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. 

  1. 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…

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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.

Ratio Decidendi

Legal Principle Established

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