Director of Public Prosecutions v Mazzi (a pseudonym)

[2018] VCC 361

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MAZZI (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Mazzi (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 361

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. P. Kounnas
For the Accused	Ms S. Stafford

1Michael Mazzi[1], you have pleaded guilty to the following offences which carry the following maximum penalties:  One count of persistent contravention of a family violence intervention order which carries a maximum of five years' imprisonment; one count of aggravated burglary which carries a maximum of 25 years' imprisonment; and one count of being a prohibited person in possession of an imitation firearm which carries a maximum of ten years' imprisonment.

[1] A pseudonym name

2You have admitted prior convictions from an appearance at the Broadmeadows Magistrates' Court on 23 August 1999.  I was told that these arose from what was basically a single driving incident.  I do not consider those matters to be particularly relevant to this offending.

3The prosecution tendered a summary of prosecution opening for plea as Exhibit A.  A summary of your offending is as follows.

4You had been married to the complainant, Skye Mazzi[2], for about ten years before this offending.  You were separated and living in different premises at the time of your offending and you have two children together.

[2] A pseudonym name

5On 25 July 2016, an intervention order was granted against you, and it named your wife and two children as affected family members under the order and therefore as protected persons.  The order was served on you in August 2016.  The order prohibited you from committing family violence against the protected persons and from intentionally damaging property or threatening to do so.

6You and your wife were in regular communication by text messages and voice calls after the order was put in place.  In addition to that, you used to spend time at her home whilst she was at work.  Whilst this gave you some brief contact with your sons, now aged 16 and eight respectively, you also used the opportunity to sleep at the home.

7The first charge of persistently contravening a family violence safety notice particularises six dates between 19 and 26 September 2016 when you contravened the family safety notice by sending threatening text messages.  In this time, you sent something in the order of 59 text messages.  When read as a whole and in the context of the aggravated burglary to which I will refer shortly, the text messages constitute the persistent, frightening bombardment of threats of injury, death, intimidation and degradation.  I do not intend to refer to all of them but in order to reinforce the atmosphere of intimidation that you created, I will refer to a few of the worst:

819 September 2016

9"Your family is going to start paying."

10"Do it tonight slut.  Watch what happens cunt."

11"I’m so glad I get to torture you."

12"Your life’s over"

1321 September 2016

14"I can’t wait till you’re 6 feet under."

15"Your days are coming, believe me."

16"Watch your back."

17"You dead set piece of shit."

1824 September 2016

19"I’ll throw acid in your face, trust me."

20"All I need to finish you is to catch you with a guy.  I can’t wait because that’ll be the day I get to punch the fuck out of you and get my hatred out."

21"You think I’ll just walk away and leave you alone ha ha ha, you just make me more vicious."

22"Hurry up and give me a reason to bash your face."

23"All I want is you dead."

24"I want you six-foot under."

25September 2016 before the aggravated burglary and texting (starting at midnight)

26"I really hope you know why you’re fucked."

27"Come out now you scared cunt before I come in."

28Then you committed the offence of aggravated burglary and I will  come to that in a moment.

2926 September 2016 (after the aggravated burglary)

30"Come you weak slut."

31"I’ll be back."

32"Don’t think it’s over I’ll tell you when I’m satisfied."

33"I swear cunt, you seen nothing yet and the best is you think I’m full of shit because it just makes me want to do it worse to show you."

34"I swear on my kids you're fucked, trust me."

35"Just remember the longer I’m away the more angry I get.  I'll see you very soon."

36And then you texted a degrading taunt accusing your wife of taking part in group sex.

37The charge of aggravated burglary to which you pleaded guilty occurred shortly after midnight on 26 September 2016, soon after you had sent the text messages to which I have just referred.  Your wife was at home with your seven year-old son.

38After sending text messages, you then call your wife’s phone twice but on both occasions it diverted to message bank.  You did not leave a message, your wife at that time was in contact with the police and then she heard a car "fly into her driveway".  It skidded on the gravel outside.  You went to the front door and shouted threatening words to the effect, “Open this door now or you’re gone” and then you walked to the backyard, jumped the back fence and forced open the rear laundry door.

39Your wife described you as “raging” as you forced your way into her bedroom and yelled at her, “You keep laughing at me.”  Then you both had an argument.  She described herself as terrified of you.  Naturally, the noise woke your son.  You went back into her bedroom and demanded to see her telephone.  She refused to hand it to you.  After you left the property, you sent a message to your wife saying “Tell your mates", that was a reference to the police.  "Tell your mates I’m waiting”.

40You were arrested by the police on the afternoon of 26 September.  When the police found you, they searched the car you were driving. In the driver's side door was a metal silver coloured imitation firearm.  As you are a person against whom a family violence intervention order had been placed, you are prohibited from possessing such a weapon.  That is the basis for the third charge.

41You were remanded in custody when you were arrested on 26 September 2016.  You were then released on bail on 31 October 2016 and remained on bail until you pleaded guilty and were arraigned on 27 October 2017.  You have now served 165 days excluding today by way of pre-sentence detention.  You have also served another 15 days which is in effect dead time to which I will have general regard.

42Although you originally pleaded not guilty, both the prosecution and your counsel told me that negotiations led to you pleading guilty to different charges and in different circumstances to those originally alleged against you.  In this way, as I will later observe, your plea of guilty does have utilitarian benefit and should be used in mitigation of the sentence I impose upon you.

43Objective gravity of your offending

44I turn to the objective gravity of your offending.  Little need be said about the seriousness of your persistent contravention of the family safety notice.  Your counsel said that you recoiled when he went through the text messages with you; and that you readily acknowledged that your conduct overall was abhorrent.  It was stated on your behalf that you were using drugs in this period in September 2016 and that you do not recall what you wrote or what was going through your head.

45Of course, these factors do not at all mitigate the objective gravity of your offending.  The text messages sent over a one week period, may be viewed as a campaign of vitriol and hate that you waged against your wife.  The bombardment of text messages were also designed to intimidate and instil fear; perhaps even terror.  These text messages were in breach of a court order which had been served upon you in the previous month.

46In this way, your conduct shows a disdain for the court orders and importantly, for the deep desire of your wife that you did not threaten her or her children.

47Moreover, the text messages preceded your forced entry into your wife’s home in the middle of the night.  You did so, knowing that your seven year-old son was at home.  You then proceeded to confront your wife.  Fortunately, your conduct did not escalate from there.  Although the confrontation was frightening enough for your wife, you did not escalate to further property damage or violence against her.

48A victim impact statement made by your ex-partner was tendered in evidence.  She did not want that statement read to the court.  It is sufficient for me to say that your actions were terrifying to her.  I have otherwise taken into account her statement.  Time and time again the courts have seen the consequences of men who refuse to accept the breakdown of their family relationships and set out to terrify their former partners with threats of the infliction of violence.  Time and time again, the courts see men breaking into their partners' homes, usually in the middle of the night, to inflict such terror.  Your offending is another ugly example of this conduct.  Your offending,
Mr Mazzi, directed as it was to terrifying your wife, deserves the utter condemnation of the community.  Your conduct will be met by the principles of general deterrence, specific deterrence, denunciation, protection of the community and just punishment.

49Mr Terry on your behalf presented a careful and considered plea.  He explained your offending in the context of your drug use, but was quick to submit that it was put by way of explanation and not mitigation.  He was right to do so.  Your moral culpability for your offending remains very high indeed.

50There was almost no information put before me in relation to your possession of the imitation firearm.  It was simply stated to be present in the car at the time of your arrest.  Given the manner in which it has been treated by the prosecution, I do not consider it to be a serious example of this type of offence.

51Personal Circumstances

52I turn now to your personal circumstances.

53You identify as an indigenous, or perhaps more properly, a Koori man through your mother’s side.  Nothing much further was put on the plea as to this aspect of your cultural heritage or its effect on your upbringing.

54You are now 37 years of age and you were born in June 1980.  Your parents are still alive and you enjoy a good relationship with both of them.  You consider however that you suffered emotional abuse from your father during your childhood years.  You are the oldest of three children.  Neither your parents nor your younger sisters have had any previous involvement with the criminal law.  Your family was not afflicted by drug or alcohol abuse during your childhood.

55You had considerable learning difficulties, but they were not accompanied by behavioural difficulties.  In fact, you left Craigieburn  Secondary College midway through Year 8 due to the fact that you were being bullied.  You then attended Niddrie Tech for a short period of time but then moved to the Koori Open Door Education centre in Glenroy as that school specialised in children with learning difficulties.  You were able to complete Year 9 there.

56From there, you moved to what has been a continuous but varied work history.  You started work at 15 in a panel shop.  Spray-painting in panel shops has been the mainstay of your employment history.  The other mainstay has been truck jockeying and truck driving.  I received a reference from your former employer, Peter Melton.  There is an offer of re-employment upon your release from custody.

57You started using cannabis in your late teens, but you gave up all drug use shortly after you met the complainant.  Your involvement in the offending referred to in your prior criminal history in 1999 caused her to issue you an ultimatum of sorts.  You remained drug free until you were 35 years old.

58In the course of your marriage, you had two children, now aged 16 and

eight.  Your marriage experienced difficulties and you separated under the same roof in 2016.  Your drug use commenced at the time of separation.  You  started using Xanax, ice and GHB.

59You had experienced considerable mental health issues over the years.  In your younger days, you were self-referred to the Epping health centre for assistance with depression.  Although you were prescribed antidepressants, you did not take them consistently.  After you were released on bail in October 2016, you completed the CISP program successfully.  The final report from the CISP program was tendered on your plea.  As part of that, you consulted a Koori specialised psychology service.  I note that after completion of the CISP program, you failed to comply with the bail condition to supply urine results to the informant.  However I have no further information as to whether there was an associated lapse back into drug use.  As such, I will effectively ignore this breach.

60Since you have been in custody you have been medicated with Avanza.  This has apparently helped to stabilise your mood.

61You have made considerable progress since you have been in custody.  By this, I mean that you have used your time productively and successfully.  I received eight certificates for courses you have completed whilst in custody.  I was provided with one assay urine screen which came up negative and I'm pleased to hear that just recently, you've completed another negative test.  I was told that you have ceased use of all drugs since you have been on remand and you have provided very recent proof that that is the case.  In addition to this, you are now a peer listener at Marngoneet.  This is a position of some responsibility as you must listen to and deal with new prisoners and help them overcome the fears and difficulties of their introduction to life in prison.

62I was provided with a report dated 16 February 2018 from Mr Jeffrey Cummins, psychologist.  Mr Cummins assessed you as suffering from a major depressive disorder of moderate severity since your mid to late teens.  Mr Terry on your behalf specifically did not rely upon this as giving rise to what I will refer to as the Verdins submission, and your counsel will explain that to you, but
Mr Cummins noted that you considered that your wife must have been very frightened and intimidated by your abusive behaviour and associated repeated contraventions of the intervention order.  You told Mr Cummins that you regretted your offending and that you are now determined to remain drug free.  In this respect, you also have the support of your mother and father.

63Mr Cummins considers that you still pose a moderate risk for committing further offences of violence.  He considers that you need mental health treatment to assess your chronic feelings of low esteem, depression and your personal sense of inadequacy.  He also considers that you require drug counselling on your return to the community.

64Mr Cummins considers that your prospects for rehabilitation are very much linked to you remaining drug free in the community and to receiving appropriate mental health treatment in the community.  He considers that you are motivated to engage in appropriate counselling and treatment on your release.

65Sentencing submissions

66I turn now to the sentencing submissions raised on your behalf.  In his submissions as to sentence made on your behalf, Mr Terry readily conceded that your offending had a terrifying effect on your ex-partner.  Mr Terry submitted that the persistent contravention of the intervention order sits at the middle level of seriousness for this particular offending as there was no actual physical violence used.  Further, whilst the offending went over a one week period, it was not protracted over many months.  Finally in this respect, Mr Terry submitted that there was a fluid arrangement between you and your ex-partner which enabled you to attend at the house when she was not there.  This contrast with cases of persistent contravention where there is an absolute prohibition on contact with the ex-partner, he submitted.

67As for the aggravated burglary, whilst Mr Terry submitted that it was properly described as a confrontational offence, it could be distinguished from mid or high range examples because:

i.First, no actual assault was perpetrated and there were no physical injuries sustained.  It was conceded that psychological trauma was caused;

ii.Second, no property was stolen;

iii.Third, there were not multiple offenders;

iv.Fourth, the offence was not protracted and

v.Fifth, there was not significant further property damage other than the laundry door.

68Mr Terry submitted that whilst the principles found in the cases such as Hogarth, Meyers, Hays and Woods had some applicability to the assessment of the appropriate sentence in this case, he submitted ultimately that the assessment of the sentence to be imposed for this case required me to consider the individual circumstances of this matter.  To that end, the distinguishing features pointed out by Mr Terry should be borne in mind when considering those cases.  Importantly, I add to those distinguishing features the fact that you were not armed at the point of or at the time of entry, and you did not after entry pick up anything to brandish as a weapon.

69Ultimately, Mr Terry submitted that:

i.Firstly, the plea of guilty has significant utilitarian value and provides some evidence of remorse and insight;

ii.Secondly, that you lack relevant prior convictions and you have an extended period of good character;

iii.And third, your efforts towards rehabilitation and the protective factors being family support, determination to remain drug free and your prospects for re-employment should all work to mitigate your sentence.

70Mr Kounnas, who prosecuted this matter on behalf of the Office of Public Prosecutions, submitted that the aggravated burglary should be categorised as mid-level offending.  Mr Kounnas submitted that your entry into the house occurred after a long lead up through what he described as aggravating text messages.  Moreover, the time of night at which it occurred and that entry was made with a child present and the door being forced open, all warranted characterisation as mid-level.  Your offending therefore called for a period of immediate custody.  I must note that your counsel submitted from the outset that your offending would appropriately be met with immediate custody.

71Although he characterised them as an aggravating circumstance of the charge of aggravated burglary, Mr Kounnas expressly disavowed doubly punishing you for their use as the basis of Charge 1 and then again as an aggravating circumstance of Charge 2.  In my view of the circumstances and in light of the authorities, this submission is correct and I will heed this caution.

72In my view, the factors raised in mitigation should all be taken into account in determining the appropriate sentence in this case.  However, given the serious nature of your offending and the dominance of deterrence in the sentencing consideration, I can only give those matters limited weight. Ultimately, although I take into account the principles enunciated in the cases, it is only by careful consideration of all of the circumstances in this case that I can reach an appropriate sentence to impose upon you.

73I consider that you should be given the opportunity to be released on parole at the end of an appropriate period.  Taking into account the opinion of
Mr Cummins, it seems to me that both you and the community would benefit if you have the opportunity to be released on parole into the community with the structure, support and monitoring around you.

74I consider that your prospects for rehabilitation can only be made good if you maintain your resolve to remain drug free, and that you receive treatment for your ongoing mental health issues and if you learn to respect and accept the rights and wishes of your ex-partner to maintain a distance from you.  A relatively lengthy period of parole may be of assistance in all of these matters.

75On Charge 1, the charge of persistent contravention of a family violence safety notice, you are convicted and sentenced to a period of imprisonment of 18 months.  On Charge 2, the charge of aggravated burglary, you are convicted and sentenced to a period of imprisonment of two years and six months.  On Charge 3, the charge of being a prohibited person in possession of an imitation firearm, you are convicted and sentenced to one month's imprisonment. 

76I order that 12 months of the sentence on Charge 1 is to be served cumulatively on the sentence on Charge 2.  That makes for a total effective sentence of three years and six months.  I order that you serve a non-parole period of 2 years and three months.  I declare the period of 357 days pre-sentence detention reckoned as already served.  I cannot declare the period of 15 days dead time reckoned as already served, but I have generally taken it into account in setting your sentence.  But for the plea of guilty in this matter, I would have imposed a sentence of five and a half years with four years and three months to serve. 

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