Director of Public Prosecutions v Mazzeo
[2022] VCC 1287
•8 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-19-02388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH MARK MAZZEO |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2022, 30 March 2022, 4 April 2022, 13 April 2022 | |
DATE OF SENTENCE: | 8 August 2022 | |
CASE MAY BE CITED AS: | DPP v Mazzeo | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1287 | |
REASONS FOR SENTENCE
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Catchwords: Blackmail – Extortion with Threat to Inflict Serious Injury – Childhood Deprivation
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused | Ms D. Jovanovska | Marshall Jovanovska Ralph Criminal Lawyers |
HER HONOUR:
1 Joseph Mark Mazzeo, you have pleaded guilty to one charge of extortion with a threat to inflict injury and one charge of blackmail. These offences occurred in March and April 2019.
2 In 2019 you were living in one of a group of units in Seymour. The victim in this matter, Arnold Pyke[1], also lived in one of the units and the two of you had become friends. Pyke was then a 52 year old man who lived alone in his unit which he owned. He was working at a concrete factory and apart from this income, he also had some inherited money and some compensation as a victim of crime following being stabbed during a home invasion.
[1]A pseudonym.
3 Through this friendship you knew about Pyke’s financial situation and you often asked him for money. When in May 2019 Pyke made a statement to the police by way of reporting this matter to them, he said you had been behaving aggressively towards him, that you had threatened to break his jaw if he did not give you money and if he went to the police you would get his family. You had previously told Pyke that you had been associated with the Hells Angels bikie gang. You told him that the bikies had found out that he, Pyke, had made a statement to police when he was the victim of the stabbing during the home invasion.
4 On Monday 15 April you went to Pyke’s unit. You were holding your mobile phone and you told Pyke that you had the bikies on the phone on loudspeaker. You said they wanted payment from him for having made a statement about the person who stabbed him. You said you had seen a copy of that statement. You said the bikies wanted $1,000. Pyke was so scared he went to the bank and withdrew $1,000, from which he handed $500 to you. This is Charge 1, extortion.
5 The next morning you sent Pyke a text message stating that the bikies wanted another $500 and that if he did not provide it by leaving it an envelope inside your security door, he would have to pay a further $500. He provided the $500 as instructed.
6 On 23 April Pyke went to work as usual, leaving his pet cat locked inside his unit. At work he confided to a colleague about the threats and the money and his colleague suggested that he go to the police and report it, which he did. When he returned home that evening, he found his cat was missing, along with the cat cage kept in the back garden. He reported this to the police immediately.
7 On his return home at about 6.00pm he had a visit from Glen Williams, the co‑accused in this case. Pyke had met him once at your home and he invited him in. Williams asked Pyke, “Are you missing something?” Pyke replied that his cat was missing. Williams said, “You have two choices. You can either give me $10,000 by 10.00am tomorrow or we will kill your cat”. Williams left and went straight to your unit. That is the charge of blackmail.
8 Pyke went back to the police station to report this. He was unable to identify Williams by name, but described him as a male friend of yours whom he had met once with you. He then went to stay with his brother as he was too scared to remain at home.
9 The following morning police went to your unit looking for a man fitting the description of Williams, but he was not there. Later that day they went to Pyke’s unit for forensic processing, during which a fingerprint belonging to Williams was located on a window frame.
10 You tried to call Pyke a number of times between 23 April and 6 May and also sent him text messages asking him to contact you. You told Pyke that you had nothing to do with the situation. Pyke did not reply. And on 6 May you sent him a final message which read, “If you won’t [want] tiger [the cat] you come and see me not ask you again or call its simple”.
11 On 10 May you and Williams were arrested separately and interviewed. You denied any involvement, saying Pyke was your friend and you were only trying to contact him to help him and try to get his cat back. At that stage you were not charged.
12 On 15 May police executed a search warrant at your unit and found Williams' phone, which he had left there. The messages on the phone showed that you had been “standing over” Pyke for money and that when Pyke paid the money demanded of him, you sent a text message to Williams reporting that Pyke had done what he had been told to do. Williams replied that the police had spoken to him, but he would not talk.
13 On the day when both you and Williams were to be interviewed by the police, you told Williams that you had put him to the test with Pyke, and that it would be the perfect first job for him, but you were disappointed and hoped he had learnt from it.
14 You were interviewed again on 14 June 2019. You made admissions to standing over Pyke for money, stating it was because you were on ice and that you regretted it. You admitted that your claim that bikies were involved would have made Pyke scared that he might be hurt. Pyke had told the police that after your girlfriend left you, you started hanging around with the wrong people. This was put to you by the police, and you agreed with that. You said you started using ice then and that this caused you to commit the crimes against Pyke, a man whom you liked as a friend, and it has upset you that you did that to him. You said the ice changed you.
15 You maintained your denial that you had anything to do with the actions of Williams and knew nothing of what had happened to the cat, even though it was you who messaged Pyke on 6 May about coming to see him if he wanted to see his cat again.
Objective Seriousness
16 Extortion and blackmail are serious offences. That is reinforced by the maximum penalty for each offence of 15 years imprisonment. There are different views advanced by the prosecution, and by Mr Portelli on your behalf as to your role and, by implication, the gravity of your offending. The communication between you and Williams might suggest that you put him up to the blackmail following your success in extorting money from Pyke. However, on the evidence, you did not make the explicit and overt threats, but were complicit in them.
17 The sequence of events suggests that you may have taken the cat from Pyke’s home, as this occurred immediately before Williams made his evening visit to Pyke. However, the existence of Williams' fingerprint on the window frame in the house is strong evidence that Williams took the cat. As Mr Nibbs put it in his submissions, the evidence goes no further than these competing possibilities and does not permit an inference that you did indeed take the cat. The requisite standard of proof cannot be met in regard to these matters.
18 On the face of it, your offending was more limited than that of Williams, and you were not the principal offender, but your initial role places you at a relatively high level in terms of complicity. That complicity is characterised by amateurism and lack of sophistication, although not lack of planning. The communications between you and Williams provide evidence of that.
19 A picture has emerged of you as a 52 year old man who sadly succumbed to the use of ice when your partner left you and, as you put it, you were bored. Although you have a criminal history, your last court appearance was in 2014, some five years before these offences. You have several convictions for violence-related offending and in this case, you used the threat of violence against the victim.
20 Mr Nibbs referred me to the case of R v Cavallin,[2] a case of blackmail against a vulnerable elderly woman whom the offender had befriended. The court described the crime as being of a particularly mean kind, involving a breach of trust and of confidence. That is also true in this case. In Cavallin, the offender was sentenced to two years imprisonment, with 18 months suspended.
[2]R v Cavallin (Unreported) Court of Appeal of Victoria, 24 July 1996
Personal Background and Circumstances
21
I turn now to your background and personal circumstances. You grew up as one of 10 children, with an alcoholic father who physically abused you most nights. You finished Year 7 at school, but have remained functionally illiterate, and despite obvious indications of developmental delay, no steps were taken by your parents or the school for remedial education. You left home aged
14 in order to get away from your father and you lived on the streets. You began using amphetamines and cannabis, which eventually became daily methylamphetamine use.
22 In your twenties you worked as a storeman for several years. You married and had a son who is now 26. You had a second relationship with Jasmine, the mother of your other two children, who are now aged 20 and 11. Sadly, Jasmine died of an illness about five years ago and the children live with their maternal grandmother. You now live in Seymour in a unit owned by your mother, without which you believe you would again be living on the streets.
23 Around the time of your offending your partner Cathy had left you, leaving you feeling despondent and helpless. You became depressed and anxious to the extent that you were reluctant to leave the house. It would seem from your comments to the police in your record of interview that Pyke had helped you during this time, taking you shopping and spending time with you almost every day, and you feel terrible for what you did to him.
Mitigating Factors
24 This leads me to set out a number of mitigating factors. The first is remorse. It is clear that you are genuinely remorseful, with insight into your offending and empathy for the victim. That suggests a reasonable chance for your rehabilitation. This episode represents a significant backward step for you, a man mature in years, who appeared to have stabilised his life and moved on from offending. You have endeavoured to provide an explanation for your behaviour and, other than the extent to which you say the co‑accused was responsible, you have accepted your own responsibility for it.
25 A plea of guilty may be accepted as an indication of remorse, and that is the case here. As for its utilitarian value it is, of course, a very late plea, but even so it has avoided a trial and made room for other cases to be heard. This is particularly important at the present time because of the backlog of trials in the court caused by the pandemic. Although the hearing of trials has recommenced, progress is slow given that COVID infection is still present in large numbers in the community, and this often affects trials.
26 A further important consideration is your experience of disadvantage in your childhood. There is well-known authority for the principle that the effects for childhood deprivation:
“…do not generally diminish with the passage of time and are likely to have profound and lasting consequences…It could often explain and contribute to offenders' criminal behaviour.”[3]
[3]Marrah v R [2014] VSCA 119 [16], following Bugmy [2013] HCA 37
27 That is taken from the case of Marrah v The Queen 2014, following on from the Bugmy case in 2013.
28 Although there would very likely be more severe cases of such disadvantage amongst offenders, the application of this principle in your case is warranted to an appropriate extent. In this regard, I take into account your experience of abuse from your father, your inability to engage at school with resulting illiteracy, which was never remedied, your early and persistent drug and alcohol abuse, and longstanding social anxiety.
29 You were assessed by the psychologist Mr Warren Simmons in May this year. He noted the disadvantages I have just listed, and considered that you do suffer from social anxiety, with clear evidence of a depressive disorder. A referral to a psychiatrist to consider antidepressant medication is indicated, and referral to a psychologist to assist with cognitive behavioural strategies. Mr Simmons was concerned that you might have an acquired brain injury in the context of limited intellectual function.
30 As a result, you were assessed recently by Dr Borg, who conducted extensive testing. Dr Borg concluded that the tests revealed a developmental learning disability but not an intellectual disability. She concluded that you need drug and alcohol counselling, preferably residential, and she agreed with
Mr Simmons' recommendations for other treatment.
31 Delay is a further consideration to be taken into account. You have had this case hanging over your head for about three years. A potential trial was not possible for many months during the pandemic over the past two years and you are not regarded as being at fault for having pursued that path until recently.
Sentencing Issues
32 The deterrent factor in sentencing, and the condemnation of the crime by the court, are also important factors. Blackmail and extortion are pernicious crimes which can cause great fear, and in many cases harm, as they have in this case. The cruel exploitation of a person's vulnerability and trust is often a feature as is the case here.
33 Mr Pyke provided a victim impact statement in which he described in articulate terms the quite devastating effect your criminal behaviour has caused him. He has had to leave his home because of the associations it now has for him, resulting in the loss of his permanent employment and re‑establishing his life interstate, with the support of family who live there. He has lost his trust in people and avoids social gatherings. He has developed post-traumatic stress disorder and has sought treatment for this and other related conditions. He is too fearful to live alone.
34 Mr Pyke described in detail what the loss of his cat Tiger has meant to him. The cat was his affectionate companion and was also a link with his mother, who had died not long before he had found the cat as a stray. He cared for the cat deeply and this helped him deal with his grief and loss when his mother died. He feels unable to have another pet as he fears the emotional loss would recur should anything happen to the pet.
35 These reasons personal to Mr Pyke add to the important need for the sentence to deter potential offenders generally. In your case your punishment should reflect the need for specific deterrence as well, although this need is somewhat reduced by your remorse and your acknowledgement of what you did.
Parity
36 As to parity with a co‑offender, comparisons are often difficult, both as to the level of offending and the background of antecedents of the co‑offender. Like you, Williams also experienced a sad and dysfunctional childhood. Based on the comments of the sentencing judge, Judge Hassan, his criminal history may not be dissimilar to yours, although his prior offending was more recent and he had by the current offending breached a community correction order. Like you, he had been a drug user until his arrest on remand. As I have already determined, your offending was of a lower level than his, he being the principal and you being complicit at a relatively high level.
37 The prosecution's submission on sentence was that a prison term was warranted. Mr Portelli on your behalf submitted that a lengthy community correction order could satisfy all the necessary sentencing requirements, as set out in the case of Boulton.[4] When you were assessed as suitable for such an order in April this year, the assessment was conducted in person at the Shepparton Office of Corrections.
[4]Boulton v R [2014] VSCA 342
38 The officer who assessed you noted your inability to keep track at all times and to lack full understanding of the process. You told that person that you needed help with day‑to‑day basic skills and they observed that you were a poor historian. The officer considered you would need additional support and flexibility to complete the order. Even against these and other observations, you were considered to be suitable.
39 Because of the elapsed time between then and now a new assessment had to be conducted. That was done today and has resulted in an unsuitable assessment. This assessment was conducted by phone and some of the observations made are consistent with those observed in April, but with a different interpretation. The weight placed upon your failure to complete community correction orders in the past was considered less significant by the first assessing officer. Despite these differing assessments, I am satisfied that a community correction order is an appropriate disposition and I shall make that order.
40 Mr Mazzeo, would you stand now, please. For both the charges I shall impose a three year community correction order, which will begin today. Convictions will be recorded. You will be under supervision. You must perform 50 hours of unpaid community work and any time spent in programs will be credited against those hours. You will be assessed for treatment for drug abuse and for your mental health. The Corrections officer will be provided with the reports of Mr Simmons and Dr Borg. You must also come to court for occasional judicial monitoring so that I can hear about your progress.
41 I just want to add there that I would have imposed many more hours of unpaid community work but for the grave importance of you completing and complying with the other programs that will be ordered for you.
42 You must attend the Seymour Office of Corrections by 4.00pm on Wednesday 10 August, which is in two days time. And in a moment, I will have a look at the diary and find a date for the first judicial monitoring hearing. If you had pleaded not guilty, I would have sentenced you to 10 months imprisonment with a one year community correction order.
43 Now, Mr Nibbs, are there any other matters that I have neglected or omitted?
44 MR NIBBS: I don't believe so, Your Honour.
45 HER HONOUR: No. Thank you.
46 MS JOVANOVSKA: No, Your Honour.
47 HER HONOUR: No. Just give me a moment, please. What about Thursday 3 November, Mr Mazzeo? Does that sound convenient?
48 OFFENDER: Yes, that's fine. Thank you, Your Honour.
49 HER HONOUR: 9.30am in the morning?
50 OFFENDER: Yes.
51 HER HONOUR: The usual procedure is that you would go to the Corrections office in Seymour and you would be with your Corrections officer. You'll be on the video link. I'll be here and there won't be any lawyers present. It will just be a discussion between you, me and the Corrections officer. Now, the community correction order will be printed in a moment. Just let me find out about that. Just excuse me while I ask about - I just have to make one change. All right. That order is ready for signature now. Would you like to accompany my associate to the dock, Ms Jovanovska.
52 MS JOVANOVSKA: Thank you, Your Honour.
53 HER HONOUR: Thank you. I'll leave the bench now.
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