Director of Public Prosecutions v Golden-Hatzor

[2023] VCC 2044

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00928

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

ZETHAN GOLDEN-HATZOR

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 November 2023
CASE MAY BE CITED AS:	DPP v Golden-Hatzor
MEDIUM NEUTRAL CITATION:	[2023] VCC 2044

REASONS FOR SENTENCE

---

Subject: CRIMINAL LAW

Catchwords: intentionally causing injury - prohibited person in possession of a firearm - commit indictable offence whilst on bail - possession of 5 identification cards - drive by shooting - possession of a machete - serious criminality and culpability – aged 21 at the time of offending - concerning criminal history – previous detention in Youth Justices Centres – history of drug use – institutionalisation – principle of general deterrence.  

Legislation Cited: Sentencing Act 1991 (VIC)

Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571; The Queen v Worboyes [2021] VSCA 169; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41;

Sentence: Total effective sentence is four years imprisonment. Two and half years must be served as the minimum period before being eligible for parole.  

s6AAA: If he had not pleaded guilty, he would have received a head sentence of five and a half years imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter
For the Accused	Ms N. Menegas

HIS HONOUR:

1In this matter Mr Zethan Golden-Hatzor is now aged 23, and was 21 at the time of the offences, having been born in April 2000, he resides at Diggers Rest but is on remand at the moment. Indictment no.N10683366.1 was the indictment listed for trial on 27 April of this year.  Upon arraignment that day Mr Golden-Hatzor pleaded guilty to all charges on the indictment being five charges.  For want of a better term we can call that the Coppolino indictment.

2Counsel also entered pleas on behalf of Mr Golden-Hatzor to five summary charges being Charge 4, 11, 12, 13 and 16 and admitted the priors that were in the priors sheet dated 19 June 2023.

3The matter was adjourned for plea to 28 June 2023. On that day Mr Golden-Hatzor pleaded guilty to a further indictment, indictment N12460927 containing one charge of cause injury intentionally.  Counsel also pleaded guilty on behalf of Mr Golden-Hatzor to a summary charge, Charge 6, which was to commit an indictable offence while on bail and further admitted the priors set out in the criminal history sheet dated 21 June 2023.

4The plea in regard to both indictments was made by Ms Anderson that day and the matter was then adjourned to 28 August to allow for further submissions of the defence as to: (a) the impact of drugs and addiction upon Mr Golden-Hatzor; (b) the issue of institutionalisation and (c) the obtaining of a psychiatric report.

5On 28 June Exhibit A, the amended prosecution opening, which related to both indictments, was tendered.  Also tendered on that day was Exhibit A1, the prosecution opening dated 20 June 2023 as to N1260927 which again I will call the Patterson indictment, and Exhibit A2 which was the prosecution amended opening dated 26 June 2023 as to the Coppolino indictment.

6Also tendered on that day was the prosecution outline of submissions on sentencing, Exhibit B and Exhibit C, the victim impact statement of
Rebecca Weddall dated 14 June 2023.  Tendered also was an outline of defence submissions, Exhibit 1, dated 26 June 2023 and Exhibit 2, the psychiatric report of Cidoni dated 23 June 2023.

7At a subsequent mention on 13 October 2023, which was necessary because the Forensicare report had not been made available by that time, such report dated 14 August 2023 was tendered as Exhibit D, as was a reference of Mr Golden-Hatzor's uncle, dated 11 October 2023, Exhibit 3.

8I also heard further submissions from counsel on that day, that is 13 October.  The matter was then adjourned to today for sentence.

9Mr Golden-Hatzor has been on remand since he was arrested on 22 June 2022.  The offending in regard to Coppolino took place in the period 21 March 2022 through to April 2022 and the Patterson offending took place on 12 March 2022.

10The priors of Mr Zethan Golden-Hatzor are, to say the least, concerning.  They take up some 12 pages.  The Children's Court essentially make up 10 of those 12 pages, when he was 14 years through to 18 years. The Children's Court sentences go through to August 2018.  He was given detention in Youth Justice Centres from 17 through to 18 on two affray charges, a criminal damage charge, a burglary charge and numerous drug offences.

11Unfortunately thereafter his performance as an adult has been somewhat marked.  He was convicted in March 2020 of reckless conduct endangering serious injury and careless driving for which he was given an aggregate sentence of eight months, that sentence on 18 August 2020 was reduced in this Court, on appeal, to six months.  However, on the same day he was given a 36-month sentence, with a minimum of 18 months, for further offences, being armed robbery, robbery, intentionally causing injury, again similar to the Patterson matter being injury caused with a knife, driving offences and other offences.  Given those sentences, given the PSD he had, the maximum time he would have, as I worked out, been released as a result of that was
October 2021.

12Coming then to this offending.  In regard to the prosecution summaries, Exhibit A1 and Exhibit A2, the facts were accepted by defence counsel as the facts that I have to sentence upon. 

Coppolino Indictment

13The first charge had a background of the sale of a car. Mr Coppolino was helping a friend to sell his father's car.  It is concerning that the total value of that car was $2,400.  It was purchased by a friend of Mr Golden-Hatzor on 26 February 2022.  As a result of some outrageous threats made to the owner of the car by Mr Golden-Hatzor the owner decided to accept the car back on the same day and return the funds.  Why Mr Golden-Hatzor decided to maintain the rage, so to speak, as to Mr Coppolino is something I do not understand.

14However, on 22 March 2022 he committed the first offence which is Charge 1, theft of a HiLux car which was parked outside a home in Kurunjang.  The maximum penalty for theft prescribed by the Crimes Act is 10 years imprisonment.

15Charge 2 was effected by the use of such HiLux, and was committed on 26 March 2022 when Mr Golden-Hatzor completed a drive by shooting at Mr Coppolino's home, when Mr Coppolino was there with his wife and two children.  The maximum penalty imposed for such an offence, given its seriousness, is one of 15 years.  Two shots were fired into the home penetrating the window and in particular, penetrating the bedroom of the parents where it travelled into the wall above the double bed or the parents' beds or bed.

16At the time Mr Golden-Hatzor was a prohibited person insofar as the possession of firearms.  The sawn off 12 gauge shotgun which he had in his possession therefore is the basis of Charge 3, which was for a prohibited person to be in possession of a firearm for which the maximum penalty is one of ten years imprisonment and/or 1,200 penalty units.

17In addition, as a result of the investigation it was found that the accused was in possession of and had retained stolen plates which, I think, he utilised to put on the car but at any rate, he was in possession of those and other items and as such that makes up the handling charge, Charge 4, for which the maximum penalty is one of fifteen years imprisonment.

18The final charge relates to items found when a warrant was executed at the premises where he was living, and various identification documents were found in his possession.  They amounted to five identification cards.  For that offence the maximum penalty prescribed by Parliament is three years imprisonment.

19In addition to that, as I have indicated, he also pleaded guilty to a number of summary charges. The first, Charge 12, is the possession of shells, 12 shells in total which is a Firearms Act charge and the maximum penalty prescribed for that is 40 penalty units.

20Charge 13 is a charge of possession of a weapon, in this case a machete, which is a charge which brings with it a maximum penalty of 120 penalty units and/or one year's gaol. 

21Charge 4 is the commission of indictable offence while on bail, being a Bail Act charge, for which the maximum penalty is three months imprisonment and/or 30 penalty units. 

22Charge 11 is a specific offence of being in possession of a firearm while on bail which also brings with it a penalty of 30 penalty units and/or three months gaol.

23Finally, Charge 16 which is also a breach of a condition of bail for which the maximum penalty is 20 penalty units and/or three months gaol.

24Insofar as the Coppolino matter, the drive by shooting of the premises, the Court has had the benefit of reading the Victim Impact Statement of Rebecca Weddall.  I understand Ms Weddall is listening via remote, is that correct?  Ms Weddall, of course, is the wife of the victim in that matter.  She talks about the impact of an assault late at night on their home, in particular, upon her children, the youngest being aged six at the time.

25Her statement refers to the impact upon her and her family as to the issue of the feeling of security about one's home and the insecurity felt, in particular, by her eldest son.  Thereafter she talks of the separation anxiety that the children have faced and the circumstances whereby the family determined that they needed to relocate, undergo therapy and indeed suffered financial loss as a result of this crime.  As I said at the time, to which there was no dispute, the statement seemed to me a very intelligent, thought provoking statement. I thank Ms Weddall for providing that to the Court.  It did not seem to me to be exaggerated in any way.

26Insofar as sentencing is concerned the prosecution submit to the Court that Charge 2 is a very serious charge.  Reference was made to the second reading speech of the Minister when the charge was introduced because of the prevalence of drive by shootings and because no doubt, what is self-evident, the obvious dangers of acting in such a very serious manner.

27It was put by the prosecution given Mr Golden-Hatzor's background that specific deterrence should be in the mind of the Court when sentencing.  I accept the summary put by the prosecution insofar as this offence is concerned, that it evokes high moral culpability and is a very grave instance of the offence.  It was not spontaneous.  It had to be planned to some degree, although one wonders how.  There were two shots fired.  It was late at night when people are likely to be at home and at the time Mr Golden-Hatzor was both on bail and a prohibited person insofar as possession of firearms is concerned.

Patterson Indictment

28Coming then to the Patterson matter of intentionally cause injury.  This occurred on 12 March 2022, again while Mr Golden-Hatzor was on bail.  Again of concern is that this action took place over an alleged debt of only $100.  Further it took place in a public place, at a hotel.  The victim was stabbed by Mr Golden-Hatzor in the left calf whereby considerable bleeding was caused.  Mr Golden-Hatzor took the opportunity to take a video of the injury, which is outrageous enough in itself, and is heard to be calling the victim 'a fucking rat'.  Such video was found when the phone of Mr Golden-Hatzor was seized.  What is of more concern is the prior matter that I have referred to of intentionally causing injury was also a stabbing offence, for which he received an 18 month sentence.  In an Arunta call on 17 April 2022 he was heard, amazingly, to be still expressing concern over being owed $100 by Mr Patterson.

29The summary charge of commit indictable offence while on bail was also pleaded to by his counsel, which has a maximum penalty of 30 penalty units and three months imprisonment.

30Given Mr Golden-Hatzor's young age, and the history that the Court has just recounted, it is not hard to appreciate the concerns that this Court has in regard to Mr Golden-Hatzor and his future. 

The Plea

31The plea on his behalf was ably made and the matters set out in writing in Exhibit 1 which was the defence written submission of 25 June 2023. Ms Anderson was at pains to point out to the Court that his history, both by way of upbringing and the impact of drugs, had led to a situation where, in regard to his adult life, Mr Golden-Hatzor has only been living in the community, that is since the age of 18, for a total of about six months.

32As I have said, the facts of these charges were accepted, as was the grading of serious criminality and culpability in regard to both indictments.

See paragraph [8a] of the written submission. Ms Anderson accepted there was no alternative for the Court, given the seriousness of such crimes, but for a gaol sentence.  Ms Anderson also referred to Exhibit 2, the report of the psychologist Cidoni and in particular [12], as to the strong impact of drugs on
Mr Golden-Hatzor's life.

33It is to be noted that Mr Golden-Hatzor still has the support of his girlfriend, Tanya and his mother, [30], and also an offer of employment from his uncle which was the letter tendered as Exhibit 3.

34Ms Anderson noted the reported insight and remorse expressed to Ms Cidoni for what is described by Mr Golden-Hatzor as his “immature actions.” Ms Cidoni further noted at [69] that his substance abuse had impacted upon what was described as a skewed social and moral compass due to his very unfortunate upbringing. The exquisite sentencing issues raised by this matter bring up the concern expressed by Ms Anderson as to the institutionalisation of Mr Golden-Hatzor and those matters were referred to in the report of Ms Cidoni, at [76].

35As I said the Court requested a Forensicare report which was tendered as Exhibit D.  Again at paragraph [69] of such report Mr Golden-Hatzor expressed regrets as to his crimes, the impact of drugs upon him, in particular methamphetamine, and the overall impact that had upon him coming from a very compromised upbringing.  He said in the history that he was maintaining in prison abstinence of drugs and intended to utilise the education programs available in prison to assist him to better his education.

36Abstinence, of course, is essential for Mr Golden-Hatzor when he does get out of gaol because of his assessed high risk of further psychiatric episodes if he does not change the patterns of his life which have been unfortunately present with him since the age of 16 years. He was diagnosed as meeting the criteria of oppositional deficit disorder and conduct disorder as a child with substance induced psychiatric disorder, [75] and [80] of the Forensicare report. Fortunately, at the moment he is currently without symptoms, while being in remand in regard to those diagnoses. Probably no better explanation or demonstration of the difference that can be made in his life if he is not taking ice.

37Ms Anderson, on behalf of Mr Golden-Hatzor, put the following mitigatory factors.  Firstly, his plea of guilty which I accept as being utilitarian, in the interests of the course of justice being effected and as demonstrating and effecting remorse by Mr Golden-Hatzor for his offences.  I also accept in the circumstances, given the time that he has spent in prison that it is a very important plea insofar as Worboyes' principles are concerned, [2021] VSCA 169, [39] albeit that we are hoping that the effects of the epidemic are behind us, the principles of Worboyes will still apply as it seems it is still in the air so to speak.  It becomes therefore an enhanced plea in these circumstances and one that is entitled on Worboyes' principles to enhanced mitigation.

38While I do not accept the proposition that the admissions made as to the Patterson matter in the Arunta calls call for a Doran discount, clearly such admissions played a very important part in the investigation. It may be said without those statements the plea would never have been effected, hence I take into account that matter in mitigation, albeit not as a Doran matter of mitigation.

39His service while on remand has also been, no doubt, interrupted by factors caused by the pandemic.  There are obviously restrictions and containment at the prison and restrictions as to visitors.  Those matters are taken into account.

40It was put by Ms Anderson that I should accept that perhaps for the first time Mr Golden-Hatzor has shown something positive as to rehabilitation.  He is working as a billet.  He is seeking to improve his education.  He is not taking drugs and under a program to reduce his drug cravings.  That is prescription drugs I mean and has expressed the desire not to be involved in such activities.

41Ms Anderson also stressed that I am dealing with a person who is still only 23, and as a person of such age and so young, matters of rehabilitation are very important for the Court to consider.

42A further matter is that of institutionalisation. Clearly unless
Mr Golden-Hatzor maintains his resolve he is likely to continue to be in gaol.  The offences he has committed are serious and should he not maintain his intent not to be further involved with drugs and criminal offences he can be sure to get heavier penalties.

43Mr Golden- Hatzor had a very difficult upbringing and clearly attracts Bugmy principles, (2013) 249 CLR 521, 592-3 [37]. While I do not necessarily draw a connection to the specific crimes with his upbringing, I do draw a connection in the sense of, as was described by the psychiatrist, the impact of drugs upon an already compromised person.

44Ms Anderson also, given that the offences were so close in time, submitted that I should consider the question of totality and cumulation.  Further, given Mr Golden-Hatzor's young age, if I put it that way, submitted that the sentence I pass on him should not be crushing.

45In response the prosecution submitted, insofar as the plea is concerned, given the seriousness of the offences it was necessary for me to take particular note of the principle of general deterrence especially in regard to the drive by shooting and violence, given Mr Golden-Hatzor's criminal history.

46The prosecutor also submitted that given his history I should take into account those matters insofar as violence itself was concerned.  I should say that given an analysis of his history, violence itself does not raise its head as being overly present.  While, of course, the concerning prior for stabbing another person is of relevance, his history has been more with other offences rather than violence.

47I do, however, take into account and accept that his rehabilitation, as the prosecutor said, must be guarded and it all depends, of course, how he handles himself, when he does get out of gaol. 

48As I have said, balancing all of those factors with Mr Golden-Hatzor's age is a very, very difficult sentencing process.  Mr Golden-Hatzor is entitled, as a result of what was said by the High Court in Dalgliesh, reported
[2017] 91 ALJR 1063, [1075], to a just sentence upon the facts of his actual offences. In the sentence I have endeavoured to do that.

49I come then to the sentence.  Mr Golden-Hatzor, given your position you can just stay where you are.

50I will take the Coppolino matter first.  That is indictment no.1068366.1.  Insofar as the theft of the car, Mr Golden-Hatzor, you will be sentenced to a period of imprisonment for 12 months.

51In regard to Charge 2, the serious matter of discharge firearm in public for which the maximum penalty is one of 15 years, you will be sentenced to imprisonment for 3 years.

52In regard to the charge of possess firearm, that is the sawn off shotgun, a sentence of imprisonment of 12 months.

53In regard to the handling charge, a sentence of imprisonment of four months.

54In regard to the fifth charge, possession of identification information, a sentence of 6 months imprisonment.

55Insofar as the summary matters are concerned, Charge 4, a sentence of one month.  Charge 11, a sentence of two months.  Charge 12, a sentence of three penalty units.

56Madam Associate, I think you told me what the penalty unit was.  How much?  The three of those at the relevant penalty rate at the time total of $576.93.

57In regard to the possession of the machete, a penalty of 2 months imprisonment.

58In regard to the breach of bail conditions, imprisonment of one month.

59Using the charge of reckless discharge of a firearm at a premises (Charge 2) as the base sentence, that is the three years, I order that three months of the theft charge (Charge 1) be added to that sentence making a total effective sentence of three years and three months.

60In regard to the Patterson Indictment N12460927 that has on the indictment one charge of cause injury intentionally by the stabbing into the thigh of the victim, I impose a sentence of 2 years imprisonment.

61In regard to the summary charge of commission of indictable offence while on bail, a sentence of 2 months imprisonment.

62The total effective sentence on that indictment will be one of two years.

63I order that nine months of this sentence, that is the Patterson sentence of two years, be cumulated with the sentence on the first indictment or the Coppolino indictment making a total effective sentence for both indictments one of four years imprisonment.

64I order that Mr Golden-Hatzor serve two and a half years as the minimum period, insofar as both indictments are concerned, before he will be eligible for parole.

65I declare that pursuant to s18 he has now served 448 days on remand which amounts to approximately 14 months and 18 days, leaving him to serve by way of a minimum period of his sentence, approximately 15 months.

66Pursuant to s6AAA and his pleas of guilty the Parliament require me to indicate to Mr Golden-Hatzor what is the impact of him pleading guilty as against the circumstances which would have occurred had he fought the matter.  Given the totality of factors I have had to take into account it is a difficult determination.  However, doing as best I can, can I say for all of the offences had he not pleaded guilty instead of getting a head sentence of four years he would have got a head sentence of five and a half years.

67I have signed the relevant forfeiture orders.

68MS BAXTER:  The pre-sentence detention is agreed as 575 days not including today.

69HIS HONOUR:  Right.  It was 448 days when?  When the plea was heard?

70MS BAXTER:  It may have been.

71HIS HONOUR:  All right.

72MS BAXTER:  That may have been - - -

73HIS HONOUR:  I thought the last time it was here I was told it was still 448 but what is it, 500 and?

74MS BAXTER:  Five hundred seventy five.  He was remanded on 6 April 2022.

75HIS HONOUR:  You just tell me what it is.

76MS BAXTER:  Five seven five.

77HIS HONOUR:  Right.  So the s18 declaration will be 575 days and that obviously will be the total period that comes off the minimum period of two and a half years that I have declared.

78MS BAXTER:  Thank you, Your Honour.

79HIS HONOUR:  I do not think that impacts upon the 6AAA declaration because the only reference I have made is to total effective sentence.

80MS BAXTER:  Yes.

81MS MENEGAS:  Yes, Your Honour.

82HIS HONOUR:  Nothing else?

83MS MENEGAS:  No, Your Honour.

84MS BAXTER:  No, Your Honour.

85HIS HONOUR:  Mr Golden-Hatzor, you're obviously street smart.  You're a good looking bloke.  You've got no doubt a good future, but you've got no future if you stay on drugs, all right?

86OFFENDER:  Yep.

87HIS HONOUR:  You know a lot more than me.  Good luck.  I hope not to see you again.  All right.

88OFFENDER:  All right.  Thanks.

89HIS HONOUR:  Thank you.  Yes. 

- - -