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R v Gatti

 

[2018] QCA 98

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Gatti [2018] QCA 98

PARTIES:

R
v
GATTI, Mario Gino
(applicant)

FILE NO/S:

CA No 236 of 2017
SC No 443 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 28 September 2017 (Bowskill J)

DELIVERED ON:

29 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2018

JUDGES:

Morrison and Philippides JJA and Brown J

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was convicted of: unlawful stalking with violence in contravention of a domestic violence order (count 1); burglary with violence whilst armed (count 2); and malicious act (grievous bodily harm) with intent to cause grievous bodily harm (count 4) – where the applicant was sentenced to concurrent terms of imprisonment of seven and a half years on count 4, two years imprisonment on count 2 and 18 months imprisonment on count 1 – where the applicant seeks leave to appeal against his sentence imposed on count 4 – whether the sentence imposed took into consideration the applicant’s personal circumstances and psychological health – whether the overall sentence imposed was manifestly excessive – whether the sentences imposed were within the sound exercise of the sentencing discretion – whether leave should be granted for the applicant to appeal against sentence

Penalties and Sentences Act 1992 (Qld), s 9(10A)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied

R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248, cited

R v Amery [2011] QCA 383, considered

R v Clark [2017] QCA 318, considered

R v Cobb [2016] QCA 333, considered

R v Granato [2006] QCA 25, considered

R v Holland [2008] QCA 200, considered

R v Laing [2008] QCA 317, considered

R v Murray [2010] QCA 266, considered

R v Piper [2015] QCA 129, considered

R v Rix [2014] QCA 278, considered

R v Tsiaras [1996] 1 VR 398; [1996] VicRp 26, considered

R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited

R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied

COUNSEL:

A J Kimmins for the applicant

J A Wooldridge for the respondent

SOLICITORS:

Brooke Winter Solicitors for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with the reasons of Philippides JA and the order her Honour proposes.
  2. PHILIPPIDES JA:  The applicant was charged with the following four counts: unlawful stalking with violence in contravention of a domestic violence order (count 1); burglary with violence whilst armed (count 2); attempted murder (count 3); and, alternatively to that count, malicious act (grievous bodily harm) with intent to cause grievous bodily harm (count 4).  On 28 July 2017, the applicant was convicted on his pleas of guilty to counts 1, 2 and 4, those pleas being accepted in full discharge of the counts on the indictment.
  3. The applicant was sentenced on 28 September 2017 to concurrent terms of imprisonment of seven and a half years imprisonment on count 4, two years imprisonment on count 2 and 18 months imprisonment on count 1.  The applicant’s court ordered parole eligibility date was fixed at 28 November 2018, after two and a half years was served (one third of the overall head sentence).  A period of 487 days (being approximately one year four months) was declared as time served under the sentences.
  4. The applicant was also sentenced on pleas entered on 28 September 2017 to a further 11 offences, which were transmitted to the Supreme Court, and in respect of which convictions were recorded but no further punishment imposed.  These offences were committed on various occasions between 10 April and 29 May 2016 and included an offence of common assault on 8 April 2016, an offence of contravention of release conditions (relating to a domestic violence order) on 10 April 2016, seven offences of contravention of a domestic violence order on various dates and two offences of breach of bail condition.
  5. The applicant seeks leave to appeal against the sentence imposed on count 4 on the basis that it is manifestly excessive.

Circumstances of the offending

  1. The applicant, who was 55 years of age at the time of the offences, and the complainant, who was 50, had been in a relationship for about seven years, starting in August 2009.  They had only resided together for a period of 18 months throughout their relationship.  The complainant had experienced difficulties in the relationship towards the end of 2013 when the applicant had demonstrated some propensity to be physically abusive towards her.  In 2014, the applicant sought counselling to address those issues.  The complainant ended the relationship on 6 April 2016.  She did so after an incident in the previous month when, following an argument, the applicant had been physically violent and stated that he should “put a knife through” her.
  2. The unlawful stalking count spanned a period of about two months from the beginning of April (following the end of the relationship) to the end of May 2016.
  3. The applicant’s conduct included sending unwanted and abusive text messages to the complainant, threatening to send offensive material to her friends and family, making threatening phone calls to the complainant and telephoning her mobile and her work phone number.  He approached the complainant in public, followed her from her unit to her workplace and on social outings.  He also verbally abused her in public.  He sent messages to her family also (as well as her friends), including a message to the complainant’s son that initially caused issues in the relationship between the complainant and her son.
  4. The sentencing judge described the applicant’s behaviour, including the offensive abuse directed to the complainant and the following of the complainant, when she was getting a bus to work or leaving her home to go somewhere, as disturbing and frightening aspects of the behaviour.  The applicant had confronted the complainant at a bus stop and taken her phone from her.  He approached her, demanding she provide her pin code so he could access the phone.  He also threatened the complainant and had to be restrained by another worker, who intervened.  This constituted the offence of common assault.
  5. In the course of the two month period, the complainant sought the assistance of the police on eight occasions.  On some occasions, when the applicant phoned, the complainant was in attendance at the police station.  A temporary domestic violence order was made on 11 April 2016.  The applicant’s behaviour continued, notwithstanding the order, with his contacting the complainant by telephone on 12 and 16 April in contravention of the order, the latter contact occurring despite police having spoken with the applicant and having charged him with breaching the conditions of the order.  The applicant was interviewed by police on 20 April 2016 and indicated that he understood the conditions of the order, but had been contacting the complainant because he claimed she had told lies to friends and family about their relationship.  During some of the calls made to the complainant, the applicant indicated an awareness of the complainant’s movements and activities, causing her anxiety.  On 27 May 2016, only two days before counts 2 and 4 were committed, police again spoke directly to the applicant reminding him he was not to have contact with the complainant and referring to three further complaints made by the complainant.
  6. Because of the threatening statements made by the applicant, the complainant was regularly too afraid to return to her home and would stay with friends and family.  This was in the context that the applicant’s stalking included an occasion when the complainant returned home to find that the locks to her unit had been replaced (which the sentencing judge inferred had been done by the applicant).  On 28 May 2016, the night before the commission of counts 2 and 4, the complainant had stayed with her brother and his wife, as the applicant had followed her to the races and approached her there which had made her feel uncomfortable about going home.
  7. On the morning of 29 May 2016, the applicant asked his mother, with whom he was staying, to read and sign his Will, saying he “[couldn’t] handle it anymore”.  At about 11.21 am, the applicant attended the complainant’s unit with a fishing knife with a blade length of between 16 and 18 centimetres.
  8. The complainant had returned to her unit that morning and had observed white paint shavings inside the door of her house, which made her think that the applicant had tried to break into her home.  She telephoned the police to make a report, went inside her unit, locked the front door and waited for the police to arrive.  She was on the phone to her sister-in-law, telling her about speaking with the police, when she went to the front door to examine it.  She opened the door to find the applicant in front of her.  Her next memory was of being on the ground.  The applicant stabbed the complainant under her left breast.  The complainant recalled the applicant striking her to the left side of the head.  She was screaming.  At the time, the phone was still connected to her sister-in-law, who called the police.  The complainant was on the ground and saw the applicant over her, still holding the knife with the blade pointed down.  She thought she was going to die and pleaded with him “Please … don’t do this”.  The applicant then took some steps towards the bedroom, at which point the complainant took the opportunity to get up off the ground and to run from the unit.
  9. Members of the applicant’s family had followed the applicant to the unit complex, being concerned about what the applicant might do.  They saw the complainant running out of the unit and assisted her and also called triple 0.  The applicant’s son attempted to intervene and restrain the applicant from leaving the unit.  He was unsuccessful and the applicant fled the scene.  Before committing the offences, the applicant was contacted by his son, who, in a series of messages, repeatedly tried to persuade the applicant to leave the complainant’s residence (where it was suspected he had gone).  The applicant later contacted his son saying that he was going to kill himself.  The applicant did attend at the police station later that night with a lawyer, but did not take part in an interview.
  10. Police searched a unit owned by the applicant in the same unit complex as the complainant.  They found a note which set out directions for the disposal of his property and asking for his mother to be looked after.  In it, the applicant placed blame on the complainant as “the reason for this crime” and stated that his death was caused by her.  The applicant admitted to having written this note on the morning before the offending.

The complainant’s injuries

  1. The injuries suffered by the complainant included a five centimetre stab wound and hemopneumothorax (pooling of air and blood between the lung and the chest wall) and consequent lung collapse with reduced oxygen saturation.  She also sustained blunt force injuries to the left side of her face and mouth, left ear, left upper arm and left outer thigh, as well as the lower breastbone.  The complainant underwent surgery for the stab wound, remaining in hospital until 2 June 2016.  It was accepted that the injuries comprised grievous bodily harm on the basis that the partially collapsed left lung had the potential to endanger her life or cause permanent injury to health if it was left untreated.

Antecedents and criminal history

  1. The applicant was educated to year 11.  Prior to his incarceration, he had owned and operated a small spray painting and sandblasting business for approximately 18 years.  He has three adult children from his relationship with a former partner.
  2. The applicant has a criminal history in both New South Wales and Queensland, consisting largely of driving and dishonesty offences.  In 2002, the applicant was convicted of three offences of breaching a domestic violence order, which related to his former partner.  He also had a previous conviction for assault in 1990.  The applicant’s history otherwise demonstrated a history of non-compliance with court orders, including entries for breach of probation order, breach of community service order and breach of suspended sentences, as well as breach of bail.  The applicant had been sentenced to periods of actual imprisonment on eight occasions, however, the most recent was in 2006, nearly 10 years before the subject offences.

Submissions at sentence as to penalty

  1. At sentence, the prosecution contended for the imposition of a sentence in the order of seven to eight years imprisonment for the offence of malicious act with intent and the making of a serious violent offence declaration.
  2. The submission on behalf of the applicant, was that an appropriate head sentence on count 4 was in the vicinity of five to six years imprisonment.  It was urged that her Honour impose a head sentence of five years (if necessary by not making a declaration as to time served) and partially suspend it, and also order probation, so as to give the applicant certainty of release.

Sentencing remarks

  1. In sentencing the applicant, the sentencing judge referred to the protracted nature of the offending, in harassing and stalking the complainant, prior to violently attacking her and that a concerning aspect was that it involved a premeditated act.  In that regard, her Honour concluded that the contents of the note found at the applicant’s unit together with his being at the front door of the complainant’s unit holding the knife was material from which it could “plainly” be inferred that the applicant went to the complainant’s home with the intention of harming her in the way that he did.
  2. Her Honour accepted that the applicant was in a very poor mental state at the time of the offending.  However, that was observed by her Honour to be a matter that “cut both ways” in also presenting a “risk to members of the community from somebody who reacts to emotional upsets in the way that [he] did”.
  3. In considering the appropriate penalty, her Honour took into account s 9(10A) of the Penalties and Sentences Act 1992 (Qld) (the PSA) that provides, in determining the appropriate sentence for an offender convicted of a domestic violence offence, the Court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the Court considers it is not reasonable to do so because of the exceptional circumstances of the case.  There were no submissions before her Honour of any exceptional circumstances applying in the present case.  Accordingly, her Honour proceeded on the basis that the commission of the offences, in the context of them being domestic violence offences, was an aggravating feature.
  4. Her Honour took into account that the applicant had a prior criminal history but observed that that history did not aggravate the current offences.
  5. Her Honour also had regard to the need for a deterrent sentence, referring to “the insidious and prevalent nature of the offending” and that the sentence communicated the community’s denunciation of the offending and provided protection for the community and the complainant.  Her Honour balanced those considerations with factors in the applicant’s favour such as his rehabilitation, which included some positive factors in the applicant’s life, including “a very good and long work history and a capacity to return to that upon … release from custody” and that the applicant also remained supported by his family.
  6. Her Honour observed that the applicant was said to have communicated to a psychologist a level of insight into his offending and that he had, in the preceding month, written a letter of apology to the complainant.  However, her Honour remarked that there were some real reasons to be guarded about the applicant’s rehabilitation.  In that regard, her Honour made the following remarks arising from the psychological report:

“The psychologist notes that you describe an improvement in your psychological functioning, having been in custody now since these offences were committed on 29 May 2016.

He says you would benefit substantially from long term engagement in psychological intervention. He records that by your own admission, you have limited insight regarding your personal functioning. He also records that you displayed limited capacity to effectively manage your own behaviour, a fact that is borne from obvious shortcomings in your psychological functioning. I should record, also, I said I accept that at the time you were in a very poor mental state – the psychologist expresses the opinion that at the time of the offending, you met the diagnostic criteria for Major Depressive Disorder, severe, with anxious distress.

The psychologist records that…you described an incapacity to cope with the rejection of your reported emotional and financial commitment to the complainant, … and he expresses the opinion that your risk of reoffending relates to a number of elements, primarily that you have displayed an impaired capacity to manage conflict within interpersonal relationships, including in relation to rejection and that you continue to display emotional dysregulation in conjunction with impaired insight in the context of your personal functioning. He nonetheless says your prognosis for rehabilitation is good but that you will require engagement in intensive long-term psychological intervention aimed at developing self-insight and coping strategies.”

  1. It may be observed that in making these remarks, her Honour proceeded on the basis of an acceptance of most of the defence submissions as to the applicant’s condition, and which accorded with what the prosecution accepted as the highest that the psychological evidence could be put.  That is, notwithstanding that the psychologist lacked the capacity to make a formal diagnosis of major depressive disorder, there was no challenge that the applicant demonstrated symptomology which was consistent with such a diagnosis.
  2. While the sentencing judge was not prepared to make a declaration in respect of count 4, as sought by the prosecution, her Honour observed that, given her view of the seriousness of the offending, releasing the applicant on a suspended term as urged by the applicant (even had that had been open on her Honour’s view as to penalty) would not be appropriate.  Given the serious nature and the context of the offending, together with what was recounted in the psychological report, her Honour considered it “evidently plain” that it was appropriate that the applicant go through the process of applying for parole.  It was, nevertheless, appropriate to make a recommendation for parole eligibility after one third of the head sentence imposed of seven and a half years to reflect the pleas of guilty being entered at a timely or early stage.

The applicant’s submissions

  1. The applicant did not contend that the exercise of the sentencing discretion was vitiated by specific error in the approach taken by the sentencing judge.  Rather, it was submitted that, when regard was had to the applicant’s personal circumstances and his psychological health, the overall sentence imposed was manifestly excessive with reference to comparative sentences.
  2. In advancing that contention, it was argued that the applicant’s mental state lessened the relevance of general and specific deterrence in the sentencing process and in recognising domestic violence as an aggravating feature requiring particular deterrence.  A further matter raised was that the applicant’s mental health was also relevant to an assessment of the level and sophistication of the premeditation attributable to the applicant’s conduct the subject of counts 2 and 4.
  3. The applicant’s primary contention, however, was that, having made findings in the sentencing remarks, effectively accepting the submissions made by defence counsel and the concessions made by the prosecution as to the applicant’s mental condition, her Honour ought to have also accepted the applicant’s submission as to penalty by sentencing at the lower end of the appropriate range.  The applicant argued that the relevant comparatives indicated that an appropriate range in the present case was one of five to seven years, referring to R v Cobb,[1] R v Murray,[2] R v Amery,[3] R v Piper,[4] R v Laing[5] and R v Granato,[6] which were placed before the sentencing judge.  Additionally, reference was made to R v Holland.[7]  The failure to adopt such an approach resulted in a manifestly excessive sentence.  It was submitted that this Court should reexercise the sentencing discretion by imposing a sentence in relation to count 4 of six years imprisonment, with eligibility after having served two years and a declaration of the presentence custody as time served under the sentence (resulting in an eligibility date of 28 May 2018).

Consideration

  1. In relation to the submission that the applicant’s mental health was of “particular relevance” to the issue of premeditation, no challenge was made to the finding that there was premeditation involved in the applicant taking a knife with him to the complainant’s unit.  Further, it is to be observed, as the respondent submitted, that the sentencing judge did not find a direct correlation between applicant’s depressive symptoms and the premeditative element of the offending in count 4.  Moreover, that offending was not isolated but occurred against the background of stalking and police intervention.
  2. As to s 9(10A) of the PSA, which requires a sentencing judge to treat the fact that an offence is a domestic violence offence as an aggravating feature, the provision itself does not indicate a particular focus on deterrence per se, as the applicant’s submission seems to assume.  An offender’s mental health may be relevant (together with other matters) in determining if there are “exceptional circumstances” within the meaning of s 9(10A) of the PSA.  However, there was no need to consider that matter as it was not raised as an issue.  Nor did the prosecution did not seek to distinguish the present case from earlier cases on the basis of the operation of s 9(10A) of the PSA.
  3. In relation to the submissions concerning comparatives, High Court authority establishes the following propositions.  Comparable cases, such as there may be, are not to be viewed as marking with numerical precision the outer bounds of a sentencing judge’s permissible discretion in the sentencing of an offender in another case.[8]  Accordingly, to succeed on the application, it is not enough for the applicant to establish that the sentence imposed was even markedly different from examples placed before the Court of sentences imposed in other matters.[9]  What must be demonstrated is that the difference is such that there must have been a misapplication of principle or that the sentence is “unreasonable or plainly unjust”.[10]  In that context, and consistent with the understanding that there is no single correct sentence, judges at first instance are to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.[11]
  4. As to the comparatives of Cobb and Murray, in both cases, sentences of eight years imprisonment, with a serious violent offence declaration requiring the applicant to serve 80 per cent of the sentence, were imposed.  As the respondent submitted, a consideration of those decisions as yardsticks providing assistance in determining whether the sentence imposed in this case was manifestly excessive, must recognise that the head sentence imposed in the present case was imposed in circumstances where the sentencing judge did not exercise her discretion to make a serious violent offence declaration.
  5. Cobb, concerned a conviction after a trial of malicious act with intent (which was an alternative charge to attempted murder of which the applicant was acquitted).  Cobb struck his estranged wife in the head with a baseball bat causing serious head injuries, including a permanent disability in the nature of ongoing neurological deficit and post-traumatic epilepsy.  Cobb had sought medical attention for his victim and rang triple 0.  He made admissions to police in an interview and made significant admissions in the course of the trial.  He wrote a letter of apology to the complainant and was found to be remorseful.  In dismissing the application for leave to appeal against sentence, it was observed that the sentence of eight years was not at the top of the range of sentences that could have been imposed.  Although the injuries inflicted by Cobb were far more serious than those inflicted by the present applicant, the offending did not extend to the other prolonged offending.  Nor was Cobb’s offending committed in breach of a domestic violence order and a history of police intervention in support of the victim.
  6. Murray concerned pleas to offending over a longer period of some nine months.  The conduct constituting the offence of malicious act with intent (striking the complainant’s partner with a frying pan several times to the head and stabbing her with a knife) and the injuries inflicted were of a more serious nature than in this case.  Murray was additionally charged with two counts of aggravated stalking, one of assault occasioning bodily harm, one of stealing, one count of threatening to enter premises with intent to intimidate and two counts of breach of a domestic violence order.  Murray also had a criminal history which involved offences of violence and a breach of a domestic violence order.  The more serious nature of Murray’s offending was, however, reflected in the longer head sentence and period of time Murray was required to serve.
  7. Amery concerned a late plea of guilty to malicious act with intent by an offender with a serious criminal history.  Amery attacked his de facto partner with a sledge hammer, causing serious head injuries in breach of a domestic violence order taken out earlier that day.  He had assisted, however, by phoning triple 0 to report the incident and had the support of the complainant as at the time of sentence.  While the Court considered that the eight year sentence (with no parole eligibility fixed) imposed at first instance was not manifestly excessive, the sentencing discretion was required to be exercised afresh as a period of 140 days on remand had not been taken into account.  The sentence of seven years and seven months imprisonment with parole eligibility after three years imposed on appeal reflected both the plea of guilty and the period on remand.
  8. In Piper, a late plea (after empanelment) was entered to the offence of malicious act with intent (which was accepted in respect of an indictment that included attempted murder as an alternate count).  The offending involved stabbing a man who was present at a bar with Piper’s wife and occurred in breach of a domestic violence protection order.  The applicant had been cooperative with police as to his apprehension and location of the weapon, had no criminal history, had performed well in custody and, as at the time of sentence, was being medicated for his depression.  On appeal, the head sentence of seven years imprisonment was not inferred with but the applicant was ordered to be eligible for release after serving two and a half years (as opposed to three years) to reflect the late plea of guilty and his remorse.
  9. Laing concerned a home invasion and an attack with a hammer on an elderly man resulting in serious head injuries.  In that case, a sentence of six and a half years imprisonment, imposed after a trial, was described as “distinctly moderate”, given the offence was not declared to be a serious violence offence.  It does not assist the applicant.
  10. Nor is any support provided to the applicant by Granato, where a sentence of five years imprisonment, with a recommendation for postprison community based release after 21 months, was imposed for malicious act with intent and burglary.  The conduct in question concerned entering the complainant’s dwelling and striking him with a baton, baseball bat and lock.  In dismissing the application for leave to appeal against sentence, de Jersey CJ observed that, notwithstanding the pleas of guilty, lack of criminal history and references in that applicant’s favour, “a term at least of the order of that imposed” was appropriate.  As with Laing, the offender was sentenced for offending committed only on the one occasion.  Holland is also of no assistance given that it concerned offending of a lesser degree of seriousness, involving the use of a boot to assault the complainant.
  11. This analysis of the comparatives does not demonstrate that the sentences imposed were manifestly excessive.  As mentioned, the main thrust of the applicant’s submissions in contending that the sentence on count 4 was manifestly excessive in regard to the comparative cases centred on the matter of the applicant’s mental health.
  12. The relevance of the applicant’s mental state to the issue of deterrence was addressed in R v Yarwood,[12] where it was held, adopting what was said in R v Verdins,[13] that whether specific deterrence should be moderated (or eliminated) as a sentencing consideration may depend upon the nature and severity of the symptoms demonstrated by the offender and the effect of the condition on the mental capacity of the offender.  Recently, in R v Clark,[14] this Court reiterated its endorsement of the relevance of mental illness to the exercise of the sentencing discretion, referring to the following propositions stated by the Victorian Court of Appeal in R v Tsiaras:[15]

“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways.  First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility.  Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.  Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.  Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.  The illness may have supervened since that time.  Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.  Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”

  1. The sentencing judge’s consideration of the applicant’s mental condition was entirely appropriate and accorded with established principle.  There was no suggestion in the psychological report that the applicant’s depressive and other symptomology impaired his ability to understand the nature of his actions, to control his actions or to know that he ought not to do the acts.  Nevertheless, the applicant’s symptomology remained of relevance in understanding of the factual background against which the offending occurred and his personal circumstances.  As was accepted correctly by the appellant, her Honour could and did have regard to the symptoms outlined in the report, but not to any suggested diagnosis, given that would require the expert opinion of a psychiatrist.  Mental impairment may moderate the consideration of the weight to be given to deterrence but, as mentioned, the sentencing judge had careful regard to the matters contained within the psychologist’s report.  Her Honour made specific reference to the applicant’s “very poor mental state” at the time of the offending.  As her Honour rightly observed, in the circumstances of this case, the applicant’s psychological condition was a matter which “cut both ways” and also required an assessment of his risk to the public.  This was not a case where the evidence of the applicant’s psychological condition was so compelling as to overshadow the significant importance of general and personal deterrence.
  2. While taking into account the applicant’s mental state, rehabilitation, work history supportive family and other factors in his favour, such his pleas and remorse, the sentencing judge also considered countervailing factors, which pointed to the need for an appropriately deterrent sentence and one that reflected the serious nature of the escalating offending over a protracted period and notwithstanding that the applicant was subject to court orders and police intervention.
  3. In my view, the sentences imposed were within the sound exercise of the sentencing discretion.  The application for leave to appeal against sentence should be refused.

Order

  1. I would order that the application be refused.
  2. BROWN J:  I agree with the reasons given by Philippides JA, and the order proposed by her Honour.

Footnotes

[1]  [2016] QCA 333.

[2]  [2010] QCA 266.

[3]  [2011] QCA 383.

[4]  [2015] QCA 129.

[5]  [2008] QCA 317.

[6]  [2006] QCA 25.

[7]  [2008] QCA 200 at [63] and [64].

[8] Barbaro v The Queen (2014) 253 CLR 58 at [41]; Hili v the Queen (2010) 242 CLR 520 at [54].

[9] Hili v The Queen (2010) 242 CLR 520 at 538-539, citing Wong v The Queen (2001) 207 CLR 584.

[10] Hili v The Queen (2010) 242 CLR 520 at [58].

[11] Markarian v The Queen (2005) 228 CLR 357 at 371.

[12]  (2011) 220 A Crim R 497 at [24] per White JA.

[13]  (2007) 16 VR 269 276, point 4.

[14]  [2017] QCA 318 at [15].

[15]  [1996] 1 VR 398 at 400 per Charles and Callaway JJA and Vincent AJA.

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Editorial Notes

  • Published Case Name:

    R v Gatti

  • Shortened Case Name:

    R v Gatti

  • MNC:

    [2018] QCA 98

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Brown J

  • Date:

    29 May 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment SC443/17 (No Citation) 28 Sep 2017 Date of Sentence (Bowskill J).
Appeal Determined (QCA) [2018] QCA 98 29 May 2018 Application for leave to appeal against sentence refused: Morrison and Philippides JJA and Brown J.

Appeal Status

{solid} Appeal Determined (QCA)