Director of Public Prosecutions v Mazzonetto

[2021] VCC 401

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-20-01353

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL MAZZONETTO

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2021
DATE OF SENTENCE:	8 April 2021
CASE MAY BE CITED AS:	DPP v Mazzonetto
MEDIUM NEUTRAL CITATION:	[2021] VCC 401

REASONS FOR SENTENCE

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Catchwords: Causing serious injury recklessly – Possession of drug of dependence – Aboriginal offender – Koori Court jurisdiction – Relevant prior criminal history

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. Brown	Nelson Brown Legal
For the Accused	Ms J. Malobabic	Office of Public Prosecution

HIS HONOUR:

1Daniel Mazzonetto, you have pleaded guilty on the indictment before me in the Koori Court to one charge of recklessly causing serious injury which carries a maximum penalty of 15 years imprisonment and one charge of possessing a drug of dependence if I am satisfied it is not for a purpose related to trafficking, it is a one year maximum, which I am.  You have also pleaded guilty to a relevant summary offence of contravening a family violence interim intervention order which carries a maximum penalty of two years imprisonment. 

2You admitted a criminal record which discloses relevant matters, including a highly relevant recent matter for which you had spent 57 days in custody as part of a sentence and were released on a Community Corrections Order at the time of your commission of the very serious offence before me.  The circumstances of your offending are set out in the Summary of Prosecution Opening dated 9 January 2021 which was Exhibit A on the plea and forms part of these reasons for sentence. 

3At the time of the offending, you were 27 years old and you are now 28 years old.  Your victim was 38 at the time of the assault.  In very brief compass, you were at Southern Cross Railway Station.  You approached your victim and another man Lumsden and asked your victim for a cigarette lighter.  The other person Lumsden has given you a lighter.  You became agitated at the way in which your victim replied to your request for a lighter.  You walked away briefly before returning and aggressively 'getting into his face' as it is described in the Prosecution Opening, pressing back against the concrete bollard.  You then had a short conversation with another unknown person who gave you a cigarette.  You then walked away a distance but was still observing your victim.  Clearly, something had agitated you.  You again approached your victim and began aggressively abusing him.  Amongst other things, you said, 'I know you've got my fucken phone.' 

4

You walked behind and around him, moving approximately five metres away to his left side.  You then walked back to his left-hand side.  He was facing forward, deliberately not making eye contact with you.  You then walked back around to his right-hand side and continued to abuse him.  He turned his head momentarily toward you and faced you, then turned his head back to a forward-facing position.  You can be seen to drop your right shoulder back and throw a significant

right-hand punch to the right side of your victim's face. 

5Your victim was standing facing forward at the time of impact, with no opportunity to take any preventative or protection measures.  There was significant impact.  Your victim fell backwards.  He was immediately knocked unconscious, as can be seen on the CCTV footage.  His body fell to the ground in a stiff and straight position.  You can be seen making contact with his right shoulder before he hit the footpath with some force due to his state.  CCTV footage depicts the rear of his head hitting the footpath in an unsupported and forceful manner.  You departed the scene. 

6In relation to the relevant summary offence of contravene family violence interim intervention order, at the time of police attending to execute a search warrant at the place you were staying, Melissa Di Talia was there.  There was an order that you not be within five metres of Melissa Di Talia and you were in breach of the conditions of the interim intervention order.  I heard from Ms Di Talia during the sentencing conversation.  A search was conducted and the police located five small plastic sealable bags containing a white crystal substance.  Four of the five plastic bags were located on top of the bedside table immediately beside you.  The fifth was in a small container on the opposite bedside table. 

7You were interviewed by police in relation to the assault.  You made admissions to punching the victim.  You told police that you had asked the victim for a lighter and a cigarette.  You said to police that the victim was very rude.  You punched him to the face for being rude.  You said you punched him front-on and that you caught him and slowly placed him down on the ground.  You made full admissions in relation to the possession of methylamphetamine, stating it was for your own personal use. 

8Your victim suffered very serious injury.  He sustained a traumatic brain injury.  He underwent surgery at the Royal Melbourne Hospital commencing with a frontal craniotomy for treatment of bleeding on the brain and multiple skull fractures.  On 27 May 2020, he was transferred to the Barwon Health Geelong University Hospital before being transferred again a week later, this time to Barwon Health Grace McKellar Rehabilitation Centre for rehabilitation and neurological treatment.  He was discharged on 19 June 2020 with an ongoing neurological treatment plan.

9The impact to his head from the combination of the punch and falling to the ground, caused fractures to three bones of the skull and bleeding within the brain and within the layers covering the brain.  The emergency surgery undertaken was, first, to remove the collection of blood from the subdural haemorrhage which caused compression and a midline shift of the brain.  A midline shift of the brain is considered life threatening.  Amongst other aspects of his rehabilitation, he required a four-wheel frame for mobilisation due to ongoing dizziness and balance issues.  He also had an exacerbation of mental health problems, problems with cognitive functioning, sleep, disturbed thinking, and other issues associated with such a traumatic brain injury.  The medical report of Dr Parkin sets out in more detail those injuries and their effects and they are catastrophic and extremely serious and they are long-lasting effects, which you have acknowledged. 

10A victim impact statement was filed and exhibited on the plea and the contents of that statement I accept and take into account in formulating my sentence in this matter.  In brief, they refer to the anxiety and depression which has worsened for your victim.  Even simple things such as cooking a meal has become a very difficult task.  Amongst other things, he has lost a sense of smell and taste.  Sleeping is terrible.  He has erratic behaviour and mood swings.  He is despairing as to the future.  He has no idea as to what he can do for work.  He struggles socially and does not enjoy being out of the house due to the anxiety and trauma associated with the injury you inflicted upon him. 

11Of relevance to my consideration of the sentencing factors in your case is your prior matter.  You have a relatively extensive criminal history, including prior convictions for violence and drug offending and appearances before this court in 2013 and twice in 2015.  On 20 February 2020, you were involved in an altercation in West Melbourne where you punched a victim, described as a random victim, once to the side of the head.  The victim was knocked unconscious and fell to the ground.  I have been provided with a summary of that incident and to describe it as unprovoked is a fair assessment.  The victim in that matter was unconscious for three minutes and lost control of his bladder. 

12As I have mentioned, you spent 57 days in custody in relation to that matter and then you were released on a community corrections order on 12 May 2020, some eight days prior to your offending in this matter.  That matter is relevant to my consideration of issues of specific deterrence and also your prospects of rehabilitation. 

13Turning to the gravity of the offending, your offending is very serious.  The attack was unprovoked and your victim was completely vulnerable, blindsided in fact when you struck him with significant force.  I accept that you were agitated, no doubt in part due to the ingestion of methylamphetamine, and you perceived your victim's response to be rude. 

14My assessment based on the materials and having viewed the CCTV footage and understanding of your antecedents, is that you were on the edge and were angry.  Irrespective of what the victim said or did, you have a hair-trigger temper and a difficulty controlling anger and regulating violent impulses.  Whatever your perception was at the time, you had no right to act with such unbridled and dangerous aggression.  The fact that you had spent time in custody only days earlier for a similar lack of emotional restraint on your part demonstrates the risk you pose to innocent and unsuspecting members of the community. 

15During your plea, you and your counsel raised a despicable racial taunt as the reason for your assault.  On the evidence before me, I am unable to find on balance that that utterance was made.  I viewed the CCTV footage.  It reveals a sickening, unprovoked attack.  I do not accept to the requisite degree that you forcefully pushed your victim to the ground after you punched him and he was falling to the ground unconscious as contended by the Prosecution.  That is not the way it appears to me on the CCTV footage.  As I stated at the plea hearing, you appear to me to be shocked at the result of your strike. 

16Assaults such as yours are devastating to the victim, their families and loved ones and the community.  His injuries are extremely serious and you have at least acknowledged that and showed remorse in your own way for the impact upon his life.  During the sentencing conversation, it was pointed out to you that you had ruined his life in effect.  That is no exaggeration and you acknowledged that.  You acknowledged it was unfair what had happened to him. 

17I have concerns about the danger you pose to the community when you are affected by substances.  Your record in the materials before me demonstrate you have a problem controlling anger and your impulses and these frailties are exacerbated by your drug use. 

18Turning to your personal circumstances.  You are a proud Yorta Yorta man.  You told us your totem is the long-neck turtle.  Your father has Italian heritage.  He was an alcoholic, violent and abusive man during your childhood and you have no contact with him.  Your mother is a Yorta Yorta woman.  You come from a family line of strong Yorta Yorta people and your maternal grandparents are Atkinsons and Charles' who lived at Cummeragunja and there are other relatives who are potentially strong role models for you should you embrace them and engage more with your heritage and family into the future. 

19Your mother, unfortunately, was not a good provider of emotional support for you as a child apparently.  You have described your family situation growing up to forensic psychologist Dr Tiffany Lewis as follows (referring to the report of Dr Lewis which was tendered on your plea).  She stated:

'Mr Mazzonetto reported that he was the oldest child in a sibling group of two to his parents. He has a younger brother who is four years his junior. 
Mr Mazzonetto reported that his father was alcoholic and his mother was ambivalent to the wellbeing of her children.  He explained that the family moved around frequently, often living in caravan parks.  The boys were generally left to their own devices.  Mr Mazzonetto reported that his father was often involved in physical fights.  He reported that his mother was Aboriginal his father Italian.  He identified as being from the Yorta Yorta mob'. 

20You told her that your mother appeared to you to care more about her partners than her children and would always side with her partner.  You were placed into foster care at five years of age and residential care at 14 or 15 years of age.  You returned to your mother's care approximately 17 years of age.  You were exposed to substance use and physical violence through your mother's extended family.  You explain that the family always drank and there would be physical fights.  You recalled and relayed to Dr Lewis frequent instances in which your aunties were physically assaulted by other members of the family. 

21You reported that you grew up believing that this behaviour was acceptable.  When asked about negative life experience by Dr Lewis, you reported that you had difficulty in your childhood with the absence of purpose.  You explained you never had to be anywhere.  It was clear from your reports to Dr Lewis that you had an absence of good adult role models during your childhood years. 

22You often moved schools.  During your years of education you were educated up to year 8.  You had to move often due to foster care placements and being moved.  You were bullied and felt the effects of your deprived background during your school years.  Often you did not have the correct school uniform or shoes because, as you stated to Dr Lewis, you lived with Aboriginal foster carers.  You described that you were skinny and were not properly groomed.  You did not have what other children had and this had an effect on you and upset you at the time and also exposed you to remarks and bullying.  Effectively, you said you gave up at school and you were angry at others for their good fortune.  You described to Dr Lewis that during school years you would steal lunches, hit other children or run on desks. 

23Your foster care experience was an unhappy one generally as well and you expressed that you felt disappointment and resentment that your brother appeared to be having a better experience in his foster placements.  You described suicidal ideation and attempts to Dr Lewis.  At paragraph 54 of her report she writes:

'Mr Mazzonetto 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.  Spending significant time homeless and engaging in substance abuse and criminal activity, it is likely that Mr Mazzonetto needed to protect himself.  It's possible that he did this through maintaining a reputation that he should not be challenged.  Mr Mazzonetto also likely gets some needs met through his violent behaviour.  He appears to feel strong and in control and more worthy if able to hurt those who challenge or upset him'. 

24Your personal background is set out in some detail in the reports and also in particular in the very helpful outline of submissions filed on your behalf.  It is stated therein that you estimated that you and your younger brother, after being removed from your parents, spent time with up 25 different foster families before finally being placed in residential care, at which point you became separated from your younger brother for the first time.  You were removed by Child Protection and placed into foster care from the age of five. 

25You found it difficult when  placed into residential care without your younger brother who you counted as your only friend and you shared a close bond with, given the shared experiences growing up together.  You had limited contact with your parents over this time and generally when you did, they were not beneficial contacts.  Your schooling was interrupted as I have touched upon and you were bullied, not just due to your deprived circumstances but also due to your Aboriginal background.  Eventually, you ran away from residential care at 17.  You were homeless and have struggled to obtain stable living arrangements for most of your adult life. 

26Your criminal record discloses the periods you have served in custody and I was told that you served the full three years and nine months of your sentence in 2018 as you were not able to secure parole due to not being able to offer an address for release on parole. 

27You have had some periods of employment as a brickie’s labourer, working with a butcher, as you told us in the sentencing conversation, but you have not yet been able to hold down/settle the employment for a period of time. 

28A positive aspect has been the relationship with Melissa Di Talia, although, the existence of the intervention order points to some not insignificant difficulties in relation to that.  When I heard from her and her father during the sentencing conversation I was satisfied that  their support of you is genuine and admirable and can only have good effects upon you when you are released.  You appear to be appropriately appreciating their interest and ongoing support in you. 

29You have completed approximately 10 urine and drugs screens whilst on remand, all negative I was told.  You have worked as head yard billet in Ravenhall Prison.  You have applied to undertake a number of courses, including courses in drug use, anger management and better thinking, although, these courses have not been available during the COVID measures. 

30One positive of your incarceration of late has been your interest in art and painting and you are part of the Koori Art Program.  I was told you have provided three paintings to the Koori Art Program which will be exhibited and available for sale under The Torch Program, as I understand it, and you spoke at some length about your interest and liking of pursuing art, both in custody and once you are released. 

31In the sentencing conversation you engaged fully.  You were asked why you wanted to engage in the Koori Court process and you said, amongst other things, you wanted your chance to speak and be seen and understood for the person that you are rather than just sit in the back of the court and someone else speak on your behalf.  You wanted to get involved with everyone there.  You have been in the Koori Court before and engaged appropriately on that occasion as well. 

32You spoke with knowledge and interest of your Yorta Yorta mob, your family, your totem and it is clear you are a proud Yorta Yorta man.  You spoke about employment in the past, working as a butcher and brick laying, and generally you spoke of your hopes for the future in a positive way.  You told us that you have signed up for a forklift course, first-aid course, anger management course and drug courses.  You spoke of the support you are getting from your partner's father Joe Di Talia and that you hope to continue having his support once you are released. 

33Importantly, you read out your letter of apology to the victim and you also wrote a letter to me which was tendered as part of the materials in your case and I also received the letter from your partner and from Joe Di Talia, all of which I have read and have taken into account in a positive way in your case. 

34I am satisfied that you have, in your own way as I have stated, expressed genuine remorse.  I say in your ‘own way,’ because it is inescapable that you are a person who is shaped by your experiences growing up through foster care and the path your life has taken and how you have sought to survive and express yourself in difficult circumstances.  Through that filter, I have assessed your remorse as genuine. 

35In your case, there is a sufficient basis to give effect to the Bugmy principles.  The relationship between your exposure to alcohol and violence and your interaction to drugs 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 experiences, not the experience of any one particular foster carer that I was told about, but the experience of going through 25 or so foster care homes was a traumatic one. 

36In Bugmy the High Court described the manner in which factors of disadvantage are relevant to an assessment of offenders' culpability in the following terms. 

‘The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way…

…The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, the background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending… 

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision’.[1] 

[1]Bugmy v The Queen [2013] HCA 37 [40], [42]-[43].

37Where the abuse of substances in your case and a gravitation towards violence as a way of resolving disputes has its genesis in the kind of dysfunction which you were subjected to in your early years, it is appropriate to take it into account and I am satisfied in your case that, given the history and the matters that I have referred to, that is so. 

38I will refer in passing to the remarks of Wood J in R v Fernando[2] and also similar concepts that have been referred to elsewhere in the recent decision of DPP v Heyfron [2019] VSCA 130 per Kaye J at paragraphs 56-59. Also an ACT decision of R v Douglas and R v Albony where the court stated at 470[3]:

'The age of an offender, when he has become addicted and the degree of judgement open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct….

It must be doubted whether the moral culpability of a child of 8 or 11, who because of an abused background or other compelling circumstances acquires a drug or alcohol addiction can be equated with that of an adult or much older juvenile who, for his or her self-gratification, chooses to experiment with illicit drugs and thus becomes addicted'. 

[2]R v Fernando (1992) 76 A Crim R 58.

[3]Douglas v R,  Albone v R (1995) 56 FCR 465.

39As I have stated, you have a history of dangerous and violent offending whilst intoxicated.  You have been aware for some time of the relationship between your illicit substance abuse and criminal offending.  Intoxication, in your case, is relevant to my overall assessment of the circumstances of offending in an explanatory sense and one which bears upon your moral culpability, rather than as a factor attracting mitigation standing alone. 

40

Some care needs to be taken in not allowing an understanding of Aboriginal disadvantage generally and its relationship to the past and to the present high rates of incarceration of Aboriginal people, for example, to distort the concept of individualised justice - n so far as individualised justice in sentencing requires an assessment of the personal circumstances of the offender.  An appreciation of those circumstances necessarily embraces an understanding of the

socio-economic context, cultural context and in the case of an Aboriginal offender such as yourself to whom the Bugmy principle applies such as it does in your case, the historical context also. 

41The circumstances that have led you to this court are not confined to those immediate factors which occurred to you at different times in your life.  Parents, family members, friends, people you have grown up with and got to know through various institutions have also been a product of systemic disadvantage and colonial legacy. 

42You took part in the Koori Court and the sentencing conversation that is part of that process and, as I have said, it was not your first time in Koori Court.  It can be a confronting process and it was in your case.  You displayed respect and a commitment to engage with the process.  You were articulate and knowledgeable about your culture and history.  I consider your meaningful engagement at the sentencing conversation as a mitigating factor.  You were challenged by your elders.  Your willingness to face the shaming that is an integral part of the process and preparedness to be accountable for your offending was apparent to me. It is acknowledged that participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing. 

43You have pleaded guilty at an early opportunity, indeed, the earliest opportunity it is conceded.  Your plea has particular utilitarian value, as well as reflecting remorse.  In the COVID environment, pleas such as yours have a greater utilitarian value than at other times.  I also take into account your experience of custody during the COVID pandemic and the limitations that apply.  For an offence such as this, being recklessly causing serious injury, general deterrence is a very significant factor for the reasons I have pointed out.  I must also impose a sentence that appropriately denounces your conduct.  In particular, specific deterrence is a very relevant factor in your case. 

44My assessment of your prospects of rehabilitation is guarded, given your history.  Central to it, will be your ability to not only manage and deal with illicit substance abuse, but also for you to understand and manage your psychological make-up and impulses and to manage your violent impulses and, in particular, to design and embrace strategies to avoid you resorting to violence  in moments of stress or anger. 

45I sentence you as follows, Mr Mazzonetto.

46In relation to Charge 1, the charge of recklessly causing serious injury, you are sentenced to six years and nine months imprisonment;

47In relation to Charge 2, the charge of drug possession, you are sentenced to one month imprisonment, that will be served concurrently;

48In relation to the summary charge of contravening intervention order, you are to be fined $700. 

49I set a non-parole period of four years and three months before you are eligible for parole and I declare that, pursuant to s.18 of the Sentencing Act you have served 266 days of presentence detention. 

50Pursuant to s.6AAA, if it was not for your plea of guilty in this matter, I would have sentenced you to a sentence of nine years' imprisonment with a non-parole period of five-and-a-half years. 

HIS HONOUR:  All right, any other matters?

MR BROWN:  No, Your Honour.

HIS HONOUR:  No other orders sought, Ms Malobabic?

MS MALOBABIC:  No, Your Honour. 

HIS HONOUR:  Yes, I'll adjourn the court. 

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