Daniel Mazzonetto v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0099

DANIEL MAZZONETTO	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2022
DATE OF JUDGMENT:	4 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 153
JUDGMENT APPEALED FROM:	[2021] VCC 401 (Judge Johns)

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Single punch causing traumatic brain injury – Total effective sentence of 6 years and 9 months – Non-parole period of 4 years and 3 months – Whether judge failed to consider application of fifth Verdins limb – Appeal allowed – Resentenced to 6 years’ imprisonment with non-parole period of 4 years.

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Counsel
Appellant:		Ms K Farrell
Respondent:		Ms R Harper
Solicitors
Appellant:	Paul Vale Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MCLEISH JA:

On 23 March 2021, the appellant pleaded guilty, before a judge of the County Court sitting in the Koori Court Division to: one charge of recklessly causing serious injury;[1] one charge of possessing a drug of dependence;[2] and one related summary offence of contravening a family violence interim intervention order.[3]
[1]Crimes Act 1958 s 17.
[2]Drugs, Poisons and Controlled Substances Act 1982 s 73(1).
[3]Family Violence Protection Act 2008 s 123(2).
On 8 April 2021, the judge sentenced the appellant as follows:[4]
[4]DPP v Mazzonetto [2021] VCC 401 (‘Sentencing Remarks’).

Charge on Indictment L11700655	Offence	Max Penalty	Sentence	Cumulation
1	Recklessly causing serious injury	15 years	6 years and 9 months	Base
2	Possessing a drug of dependence	1 year	1 month	–
Related Summary Offence
4	Contravention of a family violence interim intervention order	2 years	Fined $700	–
Total Effective Sentence:		6 years and 9 months
Non-Parole Period:		4 years and 3 months
Pre-sentence Detention Declared:		266 days
Section 6AAA Statement:		Total Effective Sentence 9 years Non Parole-Period 5 years and 6 months
Other Relevant Orders: Nil

The appellant was granted leave to appeal against sentence on two proposed grounds: first, that the judge erred by failing to take into account the fifth of the Verdins principles;[5] and secondly, that the sentence imposed on charge 1, the total effective sentence and the non-parole period are each manifestly excessive.
[5]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
For the reasons that follow, the appeal will be allowed and the appellant will be resentenced to a term of 6 years’ imprisonment on charge 1, with other sentences unchanged except that a non-parole period of 4 years will be fixed.

Circumstances of offending[6]

[6]What follows is drawn mainly from the reasons published in the application for leave to appeal: Mazzonetto v The Queen [2021] VSCA 310 (McLeish JA).

At the time of the principal offence the appellant was 27 years old and under the influence of methylamphetamine.
In the afternoon of 20 May 2020, the appellant approached Joshua May, who was unknown to him, at Southern Cross Station in Melbourne, asking to borrow a cigarette lighter. The appellant became agitated; he walked away from Mr May and returned several times, offering verbal abuse. At one point, he accused Mr May of having his phone.
Mr May stood facing forward, avoiding eye contact with the appellant. The appellant moved behind Mr May, dropped his right shoulder and, without warning, threw a right-hand punch to the side of Mr May’s face. Mr May was immediately knocked unconscious. His body went stiff as he fell backward to the footpath. The appellant immediately left the scene (charge 1 — recklessly causing serious injury).
Some weeks earlier, on 7 April 2020, a family violence interim intervention order was issued against the appellant. It was served on him on 1 May 2020. The order relevantly prohibited him from communicating with, or being within five metres of, his partner Melissa Tartaglia.
On 16 July 2020, a search warrant was executed on the appellant’s apartment. The appellant was present, as was Ms Tartaglia (summary charge 4 — contravention of a family violence interim intervention order).
Inside the apartment, police located five small plastic sealable bags containing methylamphetamine (charge 2 — possessing a drug of dependence).
The impact to Mr May’s head caused by the punch and his contact with the footpath caused a traumatic brain injury, specifically, a life-threatening multi-compartmental acute traumatic intracranial haemorrhage. There were fractures to three skull bones and bleeding within the brain. Mr May underwent emergency surgery.
Mr May’s rehabilitation is ongoing. The sentencing judge referred to a report prepared by Dr Jo Ann Parkin, a clinical forensic medicine physician. Dr Parkin explained that Mr May continues to experience ongoing medical issues as a result of the injury, including impairment of his memory and higher-order cognitive functions, disturbed sleep, ongoing ringing in the ears, and mental health problems. Mr May now requires the use of a frame to walk because of ongoing dizziness and impaired balance. In a victim impact statement, Mr May described worsening mental health and emotional instability, a loss of his sense of smell and difficulties with his sense of taste, disrupted sleep, difficulty with simple tasks, social anxiety, and a general sense of despair. The judge described the injury and its effects as catastrophic.[7]
[7]Sentencing Remarks [9].

Other relevant sentencing considerations

The judge described the appellant’s prior criminal history as ‘relatively extensive’.[8] It included prior convictions for violence, theft and drug offending. In 2013 he was sentenced to 2 years and 4 months’ imprisonment on property charges including aggravated burglary with an offensive weapon.[9] In April 2015 he was sentenced on further theft and armed robbery charges to 209 days’ imprisonment and placed on a community correction order. After breaching that order he was sentenced to imprisonment for 3 years and 9 months. He was subsequently placed on community correction orders for other offending.
[8]Ibid [11].
[9]DPP v Mazzonetto [2013] VCC 195.
Significantly, on 12 May 2020 — only 8 days before the present offending — the appellant was convicted of intentionally causing injury in very similar circumstances, having knocked a stranger unconscious with a single punch. He was released on that day on a community correction order, having served a period of 55 days in custody.
The sentencing judge acknowledged that the appellant had demonstrated a measure of genuine remorse. As part of the sentencing process, the appellant had read out a letter of apology to Mr May, and acknowledged, for example, that that what he had done was unfair, and he had essentially ruined Mr May’s life.[10] The appellant also demonstrated remorse by pleading guilty at the earliest opportunity. The judge acknowledged the enhanced utilitarian value of that plea, given the ongoing impacts of the COVID-19 pandemic.[11]
[10]Sentencing Remarks [16], [34].
[11]Ibid [43].
The judge acknowledged the appellant’s voluntary, meaningful and respectful participation in the Koori Court sentencing process, a process which is more participatory and burdensome than a traditional plea.[12] He also acknowledged his productive use of his time in custody, abstinence from drugs, and his willingness to participate in programs relevant to his rehabilitation. He further noted that the appellant had the support of his partner and her father.
[12]Ibid [42].
The judge described the appellant as a proud Yorta Yorta man, descended from a ‘strong line’ of Yorta Yorta people including relatives who were potentially positive role models.[13] But the appellant’s upbringing was exceedingly difficult. His father was an alcoholic; his mother provided little emotional support. He was exposed to substance use and violence through his mother’s extended family, which he came to understand as acceptable behaviour. He lacked alternative positive adult role models. Placed in foster care at the age of five, he spent time with more than 20 different foster families before moving to residential care as a teenager. He moved schools frequently and was bullied. He left school after completing year 8, and commenced using and abusing drugs soon after. He ran away from residential care at the age of 17, and was homeless for some time. He has since struggled to obtain stable living and working arrangements.[14]
[13]Ibid [18].
[14]Ibid [27].
Dr Tiffany Lewis, a forensic psychologist, stated that the appellant has been impacted by neglect and complex trauma throughout his childhood. She said that the appellant, at a young age:
was exposed to repeated violence through his father and his mother’s extended family. Further, he was subsequently exposed to family violence through his mother’s later partners. It is likely that the early exposure to violence taught Mr Mazzonetto that he could use violence to be heard, feared and as a way to solve problems. All of these behaviours were likely taught and reinforced to him at a young age. It is likely that Mr Mazzonetto has learnt that violence is necessary in order to survive.
Dr Lewis reported that the appellant had previously been diagnosed with post-traumatic stress disorder, and continued to experience daily ‘flashbacks’. The appellant said he had also previously been diagnosed with depression, for which he had been prescribed antidepressant medication which he continued to use. Dr Lewis described the appellant as meeting the criteria for antisocial personality disorder, and considered it likely that he had experienced symptoms of drug-induced psychosis in the past. On assessment, the appellant reported (and was observed to experience) auditory and visual hallucinations. Dr Lewis recorded that the appellant had experienced suicidal ideations from a young age, and had attempted suicide on multiple occasions in the three years preceding the offending, including an attempt just prior to his imprisonment.
The judge accepted that the appellant’s background enlivened the principles set out in Bugmy v The Queen (‘Bugmy’).[15] He said that the relationship between the appellant’s:
exposure to alcohol and violence … at an early age and the trauma associated with that experience and your experience as a young child and through your teenage years are centrally relevant to a proper assessment of your subjective culpability for the offending in this case. The effects of intergenerational trauma are apparent in your life story. You were further traumatised through foster care …[16]
[15](2013) 249 CLR 571.
[16]Sentencing Remarks [35].
The judge was satisfied that the appellant’s substance abuse and use of violence as a way of resolving disputes had its genesis in the dysfunction of his early life.[17] However, he noted that the appellant had, for some time, appreciated the link between his substance abuse and his offending.[18]
[17]Ibid [37].
[18]See DPP v Heyfron [2019] VSCA 130, [56]–[59] (Priest, Kaye and T Forrest JJA).
The judge made no reference to the principles in Verdins, or to the conclusion of Dr Lewis that:
[the appellant’s] mental health difficulties will make his time in prison more difficult than for someone with normal health. He experiences perceptual disturbances that are confusing and scary. He has been unable to obtain all the medication he needs, and this has resulted in an increase in rumination, sleep disturbance and depressive and anxious symptoms. Coupled with an inability to utilise strategies he has relied on, [the appellant] is likely to find his time in prison confronting.[19]
[19]Emphasis added.
Ultimately, the judge considered that the principles of specific and general deterrence and denunciation assumed particular significance. He assessed the appellant’s prospects of rehabilitation as guarded, given his criminal history and difficulties in managing his substance abuse and violent impulses.[20]

Ground 1 — failure to take account of Verdins considerations

[20]Sentencing Remarks [44].

The appellant contended that the absence of any reference to Verdins considerations in the sentencing remarks indicated that the judge omitted to take that ‘factor into account at all’.[21] He noted that the point was expressly raised in the written (albeit not the oral) submissions on the plea, and that there was ample material in Dr Lewis’ report to engage the fifth limb.
[21]R v Nikodjevic [2004] VSCA 222, [19] (Ormiston JA), cited in R v Koumis (2008) 18 VR 434, 440 [64] (Redlich and Kellam JJA and Osborn AJA).
In particular, in parts of Dr Lewis’ report (to which the judge did not refer), she had relevantly identified that:
(a)the appellant had been previously diagnosed with post-traumatic stress disorder, and continued to experience daily ‘flashbacks’;
(b)the appellant had been previously diagnosed with major depressive disorder, for which he had been prescribed (and continued to use) antidepressant medication;
(c)the appellant presently met the criteria for antisocial personality disorder;
(d)the appellant had probably experienced drug-induced psychosis in the past, and may be continuing to experience drug-induced psychosis in prison;
(e)the appellant was presently experiencing paranoia, and auditory and visual hallucinations;
(f)the appellant had attempted suicide on multiple occasions in the three years preceding the offending, including just prior to his imprisonment;
(g)the appellant’s mental health difficulties were probably attributable to early life trauma and biological variances, as well as his significant substance abuse; and
(h)the appellant’s mental health difficulties will increase the difficulty of his imprisonment.
The appellant submitted that this material disclosed that the sentence would weigh more heavily on him than another person without his conditions.
The respondent contended that the judge’s failure to advert to the appellant’s Verdins submission did not indicate a failure to consider or account for that submission. Rather, it was said that the judge adequately took into account the application of the fifth Verdins limb. The judge had indicated during the plea hearing that he had regard to the parties’ written submissions, in which the point was recorded. He referred extensively to Dr Lewis’ report in his remarks. The appellant’s counsel had not orally addressed the Verdins point. The respondent submitted that, in any event, the material supporting the application of the fifth Verdins principle was limited to the perceptual disturbances suffered by the appellant. When account was also taken of the seriousness of the offending and the need for community protection, it was said that no different sentence should be imposed, even if specific error were to be established.
In our view, the evidence of Dr Lewis explicitly supported the application of the fifth limb of Verdins; she set out in detail the appellant’s ‘mental health difficulties’ and opined that they ‘will make his time in prison more difficult than for someone with normal health’. It should be inferred from the fact that the sentencing judge did not address these aspects of the report, or refer to Verdins, that he erred by failing to take into account this mitigating factor. That error is doubtless largely explained by the decision of defence counsel at the plea hearing (who did not appear in this Court) not to make reference to the point in oral submissions (albeit that, in oral submissions, counsel expressly relied upon his written submissions which he did not ‘seek to reread’).
Consistently with that approach taken by the appellant’s former counsel, we do not consider that the fifth Verdins principle was a very weighty consideration in the context of this case. The sentencing discretion is none the less reopened and it is necessary for us to resentence the appellant.
The appellant relies on various mitigating factors as well as Verdins, including: his early plea of guilty, and its enhanced utility during the current pandemic;[22] the judge’s finding as to genuine remorse; the application of the Bugmy principles which acknowledge the significance of his traumatic upbringing and related substance abuse issues; and the appellant’s participation in the more demanding and burdensome Koori Court process. The appellant also relied on his risk of institutionalisation, having now spent most of his adult life in custody. It was rightly submitted that it would better serve the community if the sentence facilitated his rehabilitation.[23] These are all significant mitigating considerations.
[22]See Worboyes v The Queen [2021] VSCA 169.
[23]DPP v Stone [2003] VSCA 208, [20] (Charles JA, Winneke ACJ and Eames JA agreeing at [28] and [29]).
On the other hand, the appellant has a significant and relevant prior criminal history, and it is very concerning that he attacked Mr May only days after being released on a community correction order for a similar ‘one-punch’ assault. This was a very serious violent attack against a defenceless and unknown victim, which caused a traumatic and life-threatening brain injury and profound ongoing physical and mental impairment. The evidence also shows that the appellant has only guarded prospects of rehabilitation, given his presently limited capacity to manage his violent reactive impulses and his contributing substance abuse. There is plainly a need to protect the community from the appellant in these circumstances.
In all the circumstances, we would impose a sentence a little lower than that imposed by the judge, indicated at [4] above.

Ground 2 — manifest excess

In light of our conclusion as to the first ground of appeal, it is unnecessary to decide whether the sentence imposed by the judge was manifestly excessive. It will be evident, however, from the sentence we will ourselves impose that we would not have upheld this ground.

Conclusion

The appeal will be allowed and the appellant resentenced as described earlier in these reasons. For the purposes of s 6AAA of the Sentencing Act 1991, we indicate that, if not for the appellant’s plea of guilty, we would have sentenced him to 8 years and 3 months’ imprisonment, with a non-parole period of 5 years and 3 months.
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[2022] VSCA 153

4 August 2022