Director of Public Prosecutions v Mazzonetto

[2018] VCC 1467

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02525

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM MAZZONETTO

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2018
DATE OF SENTENCE:	11 September 2018
CASE MAY BE CITED AS:	DPP v Mazzonetto
MEDIUM NEUTRAL CITATION:	[2018] VCC 1467

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Ms E. Ramsay	Slater King Lawyers

HIS HONOUR:

1William Mazzonetto, on 12 December 2016, you and your girlfriend had an argument and she went outside the house to be on her own.  The victim, a neighbour of yours, was with his girlfriend.  When they walked past your girlfriend on the street, they were mocking and insulting.

2Your girlfriend came back upset and then the two of you went over to the victim's house and yelled out.  The victim came out and confronted you.  You had a concealed box cutter with you.  The two of you commenced to fight.  The description of the fight was set out in the Crown opening.

3It says that during the fight, both of you were throwing punches at each other but most of the punches were missing but you used the knife and stabbed the victim to the left-hand side of his stomach causing two incision wounds and then you stabbed him in a slashing-type action leaving a laceration on one side to the other on his stomach.

4The fight ended and ultimately an ambulance was called.  After treatment, the bleeding was stemmed.  The victim was taken to hospital but left there early against advice.  He was told the injury has resolved save for a scar.

5Any fight involving a knife is serious offending.  To bring a knife to the fight is concerning.  The slashing and the stabbing could have ended far worse but thankfully for the victim and for you, it has fully resolved.  Your reaction to the insults to your girlfriend by going to the front of the victim's house was unfortunate.  You need to think through those things and think of the consequences if things go badly.

6I will just pause for a moment.  You really have to think about taking a knife anywhere.  I have read the material relating to your sense of anxiety.  Many of us do not quite understand just how debilitating anxiety can be and in that sense, it must be hard to leave the house at all but you have got to leave the house when you have to without a knife.

7Of course there are people out in the streets that you might be fearful of and might not be doing the right thing and so on but if you have a knife, things will go wrong.  People will get hurt including yourself and what has happened here with you being able to go home from the court will not be repeated.  You will end up in prison and can I assure you the anxiety that will be created in you and left as a scar on you will be much worse if you end up in gaol.  It is not a place for you.  Do you understand that?

8OFFENDER:  Yes.

9HIS HONOUR:  Leave the knives behind.

10Earlier today, I granted your application for a sentence indication meaning that I indicated that I would not send you to gaol for this offence if you pleaded guilty.  On arraignment, you did plead guilty thus in addition to the matters that persuaded me to give the sentence indication, I add the mitigatory benefit of your plea of guilty.  You have saved the community resources by there not being a trial and the victims having to come or the victim having to come to give evidence.

11The key matters in mitigation are your deprived and difficult upbringing, your youth especially as you are a young offender without any prior criminal history of any real relevance.  It was set out in your counsel's comprehensive written submissions on the sentence indication, your upbringing was particularly difficult.  Your mother left your father for another man when you were about four.  You just moved to Shepparton.

12As a result of this new partner who disliked children, you were left with your father.  He sadly suffers from chronic alcoholism.  Consequently you were placed in the State care, in foster homes.  Your mother, an aboriginal woman, also suffers from alcoholism and drug addiction.  She has had little involvement in your life.

13Your counsel put it this way.  You were removed from your father's care for the first time in 2000.  You would have been five years old.  Thereafter, you spent most of your childhood in various foster homes and residential care units.  You had little stability.  You describe living in "Hundreds of different foster homes."

14You and your brother were separated, age 8, and your brother taken to live with an aboriginal family outside Shepparton.  You have never been placed with an aboriginal family and have no links with the aboriginal community.

15Your counsel went on.  Your experiences of childhood are categorised by abandonment and fear.  You were subject to significant amounts of physical abuse in foster care and as an adult.  You have experienced fear every time you leave the house.

16You maintain a relationship with your father and currently live with him but you have no other family support.  You have limited contact with your brother who sadly has spent a good deal of his adult life in prison.

17These matters justify the court having a sense of compassion.  I have looked at the Children's Court report provided which would endorse that sense.  So the court is justified in having a sense of compassion and thus a merciful penalty is well-open.  These matters lead to the conclusion that less weight should be given in your case to punishment and denunciation and general deterrence and more weight should be given to your rehabilitation.

18A second important aspect of the submissions of your counsel also led me to conclude less weight need be given to denunciation and deterrence and more to rehabilitation and that point is your youth.  You were 21 at the time and 23 now.  You have a very limited criminal history with no convictions, only attendances at court where you were punished without conviction and you therefore are or come before this court almost as a young first offender.

19The principles articulated by our Court of Appeal in Azzopardi and Mills apply in full force to you.  They were summarised by your counsel in her submissions in paragraphs 12 and in relation to Mills at paragraph 11.  Essentially, what needs to be understood is that you, as a young offender, and young offenders are immature and do not fully appreciate the nature and seriousness and the consequences of criminal conduct.  I think that is the case here.

20What also is said is that the courts recognise increased potential for young offenders to rehabilitate which is in everyone's interest, yours and the community and that incarceration can and in my view would impair rather than enhance your prospects of rehabilitation.

21Thus the primary consideration for sentencing is your rehabilitation.  It is much more important than other aspects of a sentencing discretion such as deterrence to others and punishment and I am to ensure that you are not send to an adult prison if such a disposition can be avoided.

22As I have already indicated, it can and should be avoided.  Thus, your rehabilitation is my primary sentencing consideration.  Both parties submitted a community corrections order was appropriate.  The assessment for the community corrections order was favourable although inaccurate in a couple of places pointed out by your counsel.

23The key point made by your counsel is that you have a fragile mental health.  I will order that you undertake assessment and treatment for mental health.  By these means, you can improve and thus rehabilitate, a matter, as I have said, that is in the community interest.  Hopefully, this will kick-start a solid mental health assistance, a matter that I hope is taken up by the health system as well as hopefully only briefly by the criminal justice system.

24The community corrections order can satisfy punishment and rehabilitation simultaneously and I will order punishment aspects by way of unpaid work and targeted programs and supervision.  Your counsel has made clear that although you have had some experience of use of cannabis, it is not a matter that looms large at the moment and the medical records would seem to indicate.

25Nonetheless, it might be assistance to you to have some treatment and assessment for drug abuse.  It is very important that you get through these next number of years without returning back to cannabis and most importantly that you do not fall into the trap of other more serious drugs.

26That can come about not because you head in that direction but because you head in a direction where there are people who seem friendly enough but are drug users.  I am always concerned that you might meet such people while you are doing a community corrections order.  It is very important that you stand firm, do the community corrections order, do not get dragged into other problems and lifestyles of other people who might be doing it who will have been to court many, many, many times.  You have not.  Make this the only time.

27So the community corrections order will be for 18 months.  You will have to do 120 hours of unpaid community work.  The program conditions will include treatment and assessment for your mental health, treatment and assessment for drug abuse and also other programs that the Office of Corrections might think are important to you or suitable to you to prevent reoffending.  That might be sort of anger management, if that is something that looms in their thinking and have you under the supervision of the Office of Corrections just so that they can keep an eye on you.  That is onerous.  You will have to go to appointments and so on.  Do not miss them.

28What I am also going to do is have you return back to see me for judicial monitoring.  That will be in February next year.  So you will be a solid way into it but it will be still early enough for me to see whether you are getting the sorts of assistance that I hope that you will be getting.  So we will fix a date for that.  You just do that by video link.  Now, take a seat while we do the paperwork as it were and you will sign that and we will bring an end to it.

29Can I just assure you that your plea of guilty was of practical importance and weight.  Had you pleaded not guilty to this offence, I would have given you six months' imprisonment with a two-year community corrections order in addition.

30An application has been made by the prosecution that you provide a forensic sample.  You consent to that application being made or the giving of a forensic sample.  I think on balance I will order that you provide that sample.  It will be a scraping from your mouth.  It means that your DNA will go on a database.  Perhaps the only benefit really will be that you add to the database making it more comprehensive rather than me having a real sense that you will reoffend and you will need to be tracked down through that but nonetheless it is there.  All right?

31There is a document that comes with that and I will need to explain to you because it is not as straightforward as simply saying go and have it done.  So when these documents are done, I will read them out to you.

32Is there anything else required?

33MS BURNETT:  No, Your Honour.

34HIS HONOUR:  Just at the moment what I am proposing is 120 hours, the mental health, the drug supervision and other programs be separate but in February 2019, if I am satisfied that there is a sufficient level of engagement in mental health and drug analysis and the like, then I may convert that by amendment to the corrections order that the hours that he spent doing that could be deducted from his community work.

35MS RAMSAY:  Yes.

36HIS HONOUR:  We will see how that unfolds.  It might be easier if we do it about 18 February.  That is a Monday.  All right?  You just go on a link at the Shepparton Court.  Or it might be it will be in the Shepparton Community Corrections Office.  I am not exactly sure but you will be on a video link.  You do not have to catch the train.

37Is there a 464ZF form you have got?

38MS BURNETT:  There is, Your Honour.  I understand it has been e-lodged.

39HIS HONOUR:  All right.  Can someone ‑ ‑ ‑

40MS BURNETT:  ­Just recently.  That might be the holdup.

41HIS HONOUR:  Yes.

42MS BURNETT:  I apologise, Your Honour.

43HIS HONOUR:  We just have not looked probably.  While the paperwork is being done, Mr Mazzonetto, let me explain something about this forensic sample thing.  There is a sort of window of time where you have to get it done.  So four weeks have to pass and then you go to the police station and get the forensic sample done and you have only got four weeks to do that.  So that is the sort of window where it has to be done.  You just go down to Shepparton police station and have that sorted out but understand ‑ ‑ ‑

44OFFENDER:  I could go next week?

45HIS HONOUR:  Yes.

46OFFENDER:  It doesn't have to be four weeks.

47HIS HONOUR:  Yes, it does.  Yes, it does.

48OFFENDER:  Ah so four weeks from now?

49HIS HONOUR:  There is a law that ‑ ‑ ‑

50OFFENDER:  I thought you meant in four - before four weeks.

51HIS HONOUR:  No.  No.

52OFFENDER:  No.  After that.

53HIS HONOUR:  Yes.  You cannot go until four weeks have gone.  Then you are allowed to go.

54OFFENDER:  I understand now.

55HIS HONOUR:  Yes.  I wish it was not that way ‑ ‑ ‑

56OFFENDER:  Yeah.

57HIS HONOUR:  ‑ ‑ ‑ but that is what the law says because I think it is as confusing as it can be for people but go down there in a month and a bits time and get it done.

58OFFENDER:  Yeah.

59HIS HONOUR:  And what you do is you have got to go through the process.  If you do not cooperate when you get there, then they can use reasonable force to get the sample taken.  Just cooperate.  I am going to give him a list of police stations with (indistinct words) so he knows where the Shepparton police station is.

60Now, I will just run through this community corrections order with you.  It is 18 months.  It starts today, 11 September.  It finishes on 10 March 2020.  There are conditions that apply to every single person that is community corrections order so they apply to you.  Most of them are about cooperating with the Office of Corrections but the first is fundamental.

61You are not to commit an offence for which you could be imprisoned during the time the orders are in force.  If you did that, you breached the order, you come back here and I have a different approach to it entirely.  All right?  You must comply with the obligations under the Sentencing Regulations.  I am told that really is they want to take a photograph of you and identify you.  Just cooperate with all that.

62You must report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre there in Shepparton.  It is on Wyndham Street within two clear working days of the order starting.  You have got to let the community corrections officer know within two clear working days if you change your address or your job, if you get one.

63You cannot leave Victoria without getting permission to do so.  That is going over the border at any time.  You must obey all lawful instructions and directions of the Secretary.  So if you are going fishing on the Murrumbidgee, you have got to tell them so they know where you are.  All right.

64So they are the things that apply to everyone.  What applies to you is you have got to do this 120 hours of unpaid community work, you must be under the supervision of the community corrections officers for 18 months, you must undergo assessment and treatment for drug abuse, for mental health and you must participate in programs that address factors relating to your offending as they see they might be suitable to you.

65We are going to have this judicial monitoring, first and perhaps only time.  It will be on 18 February 2019.  At 9.30 in the morning, you will be on the video link.  Do you understand all that?

66OFFENDER:  Yes.

67HIS HONOUR:  Sign all that?  Ms Ramsay, you come and - well, come out of the dock and come up behind Ms Ramsay and she can get you to sign that.  I have singed that.  You have.  You will get a copy and that will bring it to an end.  You can get down to the station and head home.

68Mr Mazzonetto, I deal with lots of people in this court.  Mr Ramsay and Ms Burnett, as lawyers, either assist their case.  There are very few people who have been through the foster care system and have had the sort of cards that you have been dealt that come through with not having drug addictions, not having long time of - many many times at Children's Court and then in the adult court heading off to gaol and having a life that is wasted.

69Even though things, as far as you see them, you are anxious and have depression, you should have some sense of real self-esteem because you have got through what many could not. 

70OFFENDER:  I understand, Your Honour.

71HIS HONOUR:  We will adjourn until tomorrow.

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