Director of Public Prosecutions v Mimmo

[2019] VCC 1889

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02140
CR-18-02141

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY MIMMO

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2019
DATE OF SENTENCE:	14 November 2019
CASE MAY BE CITED AS:	DPP v Mimmo
MEDIUM NEUTRAL CITATION:	[2019] VCC 1889

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie	Office of Public Prosecutions
For the Offender	Mr A.P. Lewis	Sarah Tricarico Lawyers Pty Ltd

HER HONOUR:

1Anthony Dominic Mimmo, you have pleaded guilty before me to one charge of intentionally causing injury and one charge of robbery.  The facts underlying your offending are as follows.

2On 30 June 2017, the victim in this matter, Mark Zammit, went to the Grand Hotel in Mornington to play the pokies and won two jackpots that day, being $5,000 and $1,700.  Your then-girlfriend, Janelle Saunders, was present, and saw Mr Zammit had won those jackpots.  Mr Zammit got two cheques and left the hotel, went home, and went to bed.  The next day, he went to the Westpac Branch and deposited the cheque for $5,000, and deposited and cashed the second cheque at the National Australia Bank for $1,700.  He used that money to pay off a debt.

3On 6 July 2017 at about 2am, Mr Zammit went back to the Grand Hotel to play the pokies again, taking with him $300 he had withdrawn on the way.  He was playing the pokies for some time before you and your friend Dale Hillard entered the hotel.  At about 4am, the pokies area closed.  Mr Zammit finished playing and walked to the car park area at the back of the hotel with about $400 cash in his wallet.

4He was going to walk home, but he then saw you and Mr Hillard in the carpark.  You were all, apparently, friends at the time.  You offered Mr Zammit a lift home, so he got into your ute, which was driven by Hillard.  Instead of dropping Mr Zammit home, Mr Hillard drove him to your house at 2 Linnet Court in Mornington.

5Mr Zammit went inside and he saw that Ms Saunders was there.  About 10 minutes later, Joshua Lockens, whom he had met a few times through friends, and his cousin Cody arrived, and in the next 20 minutes or so, Mr Zammit stayed in the lounge room chatting in a perfectly friendly fashion with others.

6While talking to Cody and Joshua Lockens, Mr Zammit made a comment about their surname being a strong name, and nobody should mess with the Lockens.  Cody Lockens then punched Mr Zammit to his left cheek, causing pain, and Joshua Lockens then asked to see Mr Zammit's phone to check his messages.  He threatened Mr Zammit by saying, 'Give me the phone,' swearing and holding his fist in Mr Zammit's face.  He tried to get Mr Zammit's phone from his pockets.

7Mr Zammit got up and tried to move to the front door, but a struggle ensued between Joshua Lockens and Mr Zammit; Mr Lockens was trying to get Mr Zammit's phone and wallet which were both in his pockets.  Mr Zammit was aware that someone else had joined in the struggle, and was punching him to the head.  He fell to the ground, and was punched to the head as he tried to get up, and then saw it was you who was punching him in the head.

8He begged you to stop but you kept punching him, and then you held Mr Zammit in a choke hold around his neck, at which time Mr Zammit believed he lost consciousness, at least once.  At one point, you threw Mr Zammit head first into the wall next to the television, causing a hole in the wall, and which caused Mr Zammit to bleed on his clothing, the floor and the walls.  These actions underline Charge 1 on the indictment, intentionally causing injury.

9When the assault stopped, Mr Zammit saw you and Joshua Lockens standing together, you holding his mobile phone, and Mr Lockens holding the cash from his wallet.  Mr Zammit was picked up off the ground and put on a seat with cardboard underneath it, and you and Mr Lockens asked him to log into his Westpac Bank Account.  When he refused to do so, you threatened that you would not stop Mr Lockens from hurting him.

10Mr Lockens demanded that Mr Zammit tell him his PIN number, and when Mr Zammit refused, Mr Lockens hit him on the shin of one leg, and then the other.  Both strikes caused Mr Zammit pain. You told Mr Zammit that you were just wanting to use the cardless cash facility on his phone, and Mr Zammit, in fear of what would happen if he refused, entered the PIN number for the mobile banking account on his phone, which would then allow money to be taken out using the cardless cash facility.

11You then left the house, leaving Mr Zammit with Mr Lockens.  Mr Zammit believed he would be injured if he had tried to leave the house.  You called Mr Zammit on his mobile phone, and asked for the PIN number of his Westpac bank account. Mr Zammit gave you the PIN number in fear of what would happen if he refused.

12You then made three withdrawals of $200, $500 and $300.  Those actions, being part of the assault on Mr Zammit, and then taking money from his account, underlie Charge 2 on the indictment, robbery.

13When you got home, you told Mr Zammit he would have to stay in the house until his injuries healed.  You gave him a pair of jeans and a singlet to change into.  Mr Zammit's clothes were then washed and dried while he stayed at the house.  At about 7am, Mr Lockens left the house, leaving Mr Zammit with you and Ms Saunders.  At about 10am, you left the house, giving Mr Zammit his wallet, from which was missing his bank card, Medicare card, driver's licence, and the $400 cash.

14You left Ms Saunders with Mr Zammit, telling her that he was not to leave.  While you were gone, Mr Zammit showered, and noticed there was a large clump of matted hair at the back of his head. 

15At some point in the morning, you telephone Ms Saunders and told her you would be back at 1, but before you came back, Ms Saunders left to attend an appointment.  Mr Zammit was thus left alone in the house, but he was too scared to leave, believing that you would come to his house and hurt him and his parents.  During the afternoon, you returned and gave Mr Zammit back his mobile phone.

16Mr Zammit then logged into his Westpac account, seeing that about $1,500 had been stolen.  Mr Zammit then cancelled his bank cards.  Later that afternoon, he took his clothes from the clothes drier and put them back on.  At about 7pm, you told Mr Zammit he could have left at any time, and Mr Zammit then walked home.  Later that evening, Mr Zammit's mother, Valerie Zammit, went to her son's house to speak to him, where he opened the front door and asked for her mobile phone, which she gave him.

17Mr Zammit used the phone to make some phone calls, including a call to his bank to transfer the remaining money, about $2,500, in his bank account to his parents’ account.  He took photographs of the injuries to his face and hair, and put his clothes under his desk in his bedroom, and cut the clump of hair that formed at the back of his head and put this in the bathroom bin.

18On 8 July, Mrs Zammit returned to her son's address, saw that he was injured, including injuries to his face, and both areas around the shin area, and he told her that he had been held against his will, had been assaulted, and that you and the Lockens’ were involved.  He also told her that you took money from his account.

19Mrs Zammit took her son to the GP, where he received treatment and was prescribed relief medication, and then she drove him to the Mornington Police Station, where Mr Zammit told police he had actually been robbed in the street, because he was scared for his own personal safety and that of his parents if he actually told police the truth.

20On the evening of 8 July, you drove into Mr Zammit's driveway, walked up to the gate, gave him his Westpac card, driver's licence, and Medicare card, and while walking away said, 'I'll kill you, Batman,' which was Mr Zammit's nickname.

21On 10 July, Mr Zammit bought a new mobile phone with a different number, and at 11am stopped at the Grand Hotel where he saw Hillard, Saunders and you in the smoking area.  There, you told Mr Zammit that his phone was still at your house, and he could come and collect it.  Mr Zammit told you that he was the only thing stopping police coming to your house.  You laughed, and told him you would take his phone to the police himself, and tell them that Mr Zammit was making a false claim for victims of crime compensation.

22Mr Zammit asked you why you had assaulted him, and you said that he had not been bashed, but if he wanted to feel what it was like to be bashed, you would show Mr Zammit a real bashing.  Naturally, this caused Mr Zammit to become fearful, and he decided he needed to report the matter to police.

23At about 12.55pm on 10 July 2017, Mr Zammit went to the Somerville Police Station, and gave a statement to police about what in fact had occurred.  A search warrant was executed at your home at about 9.05am on 18 July, where you were located and placed under arrest.  Police there seized certain items relating to the incident.

24Police also saw the hole in the wall in the lounge room, with what appeared to be blood splatter to the left of the missing plaster.  Samples of blood on your shoes which were taken by police were analysed, and showed that there was an extremely strong probability, which is the highest standard given by forensics, that the blood was Mr Zammit's.

25You were remanded in custody between 3 and 31 January 2018.  Ultimately, you were remanded on other matters and then granted bail on 29 October 2018.  You have thus served 179 days pre-sentence detention in relation to this matter.

26A contested committal hearing was conducted.  The matter was set down for trial, and it finally resolved on 20 September 2019, the first day of the trial.  I received victim impact statements both from Mr Zammit and his mother.  Mr Zammit has attended all proceedings, and he read out his victim impact statement in court, which was a moving document.

27Basically, at the time of this assault, he was forging a career in posting videos on YouTube, which was enjoying some success.  Since this assault, he has developed post-traumatic stress disorder, is fearful of his safety, and appears to have lost trust in the world.  His career with YouTube has simply stalled as he has completely lost the capacity to engage in that activity.

28The legal process, as he said, which was a drawn out one, set him back.  He underwent the trauma of cross-examination at committal.  He stated:

"Before the assault I was on top of the world with my YouTube channel, with my career taking off.  I was making things work after five years of doing YouTube, and it was paying off.  I was releasing videos weekly, going to events and conventions, being invited as media, and gaining fans.  Doing comedy and exactly what I loved and getting paid for it.  It was like living a dream.

But now I feel like I'm in a nightmare, since the assault, over two years ago.  I haven't been able to do my comedy and not released one video since the week before Anthony, a man I trusted, even calling my best friend, did what he did."

29I also received a report from psychiatrist Dr Galia Millington, noting that Mr Zammit also suffers from a rare genetic condition which limits his arm movements.  He cannot extend his elbows, and he has poor muscle development.  He is restricted with movements, he has very sore joints in fingers, elbows, knees and hips, and has deformed spine and easily dislocated hips.  These symptoms affect his ability to protect himself, and reduce his mobility.  This, I am sure, was well known to you at the time. It makes your attack upon him even more cowardly and morally reprehensive.

30In her victim impact statement, Mr Zammit's mother, Valerie Zammit, said she believed her life had changed as a result of this assault.  She has become more wary of her surroundings.  She is fearful for her son and his future.  She was thinking of completing a Bachelor of Theology, but she has been unable to commit.  She states:

"I find I am always wanting to know where Mark is, and who he is with.  I use social media to contact him.  I need to know he is safe.  I am attempting to enjoy my life.  I do participate in many activities, but I do not discuss the crime with anyone."

31It is clear this cowardly and very nasty attack on Mr Zammit has affected both him and his mother.  I made a number of comments on the plea hearing about the moral culpability of your offending, which I say is grave, particularly - it is difficult to find the words - particularly given this man was your friend.  He is a man who suffers a number of physical disabilities, which he has not let stop him.

32He was attempting to forge a career in a difficult industry, was having some success with this, he had had some wins on the pokies.  In all of this, he regarded you as a close friend, all of this meant nothing to you at the time.  You are a big man, far bigger than him.  You and others assaulted him in a contemptuous and cowardly fashion.  You treated him appallingly afterwards, placing him in fear.

33You showed no remorse at the time when he approached you.  You continued right up until the first day of the trial to deny your culpability and your involvement in this matter.  There is very little I can say.  Your offending shows you to have been a person, who at the time regarded himself as able to do whatever he wished to anybody without any thought or care for the consequences.

34And as I have said, that you would treat a man who you knew to be in the position that Mr Zammit was, in this contemptuous fashion, I find appalling and disgusting, and indeed it has caused me to reflect, at some length, on what the appropriate disposition should be.

35You are a person who presents before this court with a prior criminal history, beginning in 2012, when you were dealt with for charges involving a cultivation, possession and use of cannabis.  You also possessed a handgun, which was unregistered, together with ammunition.  You were then placed on a Community Corrections Order, which you successfully completed.  In March of 2017, you were fined $2,000 for making a threat to kill, and for unlawful assault.

36I dealt with you - could you just remind me again when that was, please, Mr Lewis?

37MR LEWIS:  Yes, Your Honour.

38HER HONOUR:  I apologise.

39MR LEWIS:  It was on 10 December 2018.

40HER HONOUR:  On 10 December 2018, you were sentenced to a term of imprisonment - what were those charges again?

41MR LEWIS:  So, the sentence was (indistinct) ‑ ‑ ‑

42HER HONOUR:  That is right.  They were charges of threatening to inflict serious injury, criminal damage, committing an indicatable offense whilst on bail.

43MR LEWIS:  Yes.  And that was a sentence on 14 September 2018 in the Magistrates' Court.

44HER HONOUR:  That is correct.

45MR LEWIS:  Which came before Your Honour on the 10 December 2018, as an appeal against sentence.

46HER HONOUR:  Yes, thank you.  That offending involved contemptuous and violent offending towards a woman.  I was persuaded on that occasion to allow the appeal, and to place you on a Community Corrections Order.  This was because, in the meantime, you had undergone a fair amount of rehabilitation, particularly in relation to drug use.  The offending that I am dealing with today was, at that stage, outstanding.  It was contested.  Had I known of it, Mr Mimmo, I wonder whether I would have given you the opportunity that I did.

47Fortunately, for you, you did get that opportunity, and you have taken advantage of it.  At the time that you committed both the offending against Mr Zammit and the offending for which I dealt with you on appeal, you were in the grip of drug use.  You had drug associates.  You were behaving, quite frankly, like a thug.  But you have managed to turn your life around.  How old is your client now, I am sorry?

48MR LEWIS:  33, Your Honour.

49HER HONOUR:  You are now 33 years of age.  Your mother manages a restaurant in Mornington and your father works as a builder, and you have two younger brothers.  You had a fairly affluent and comfortable upbringing.  You attended a number of schools, including private schools, and you completed year 12, and then one year of a business law degree at Monash University.

50You then left and worked in a garden supplies company and a McDonald's restaurant, and then worked as a machine operator for your father.  In 2008, when you were 22, you severely injured your back in a motorcycle accident.  You were treated as an out-patient for many months afterwards, as you suffered multiple vertebra fractures in that accident, and you worked intermittently after that, and then in 2006 began work as a boiler marker.

51Essentially, over the years, you became dependent on the opiate-based pain relief medication that you were taking at the time.  You had begun smoking cannabis at 18 and ultimately you became dependant on this, often smoking up to 7 grams a day.  When you were 21, you started experimenting with speed, and then after the accident started using ice, which of course you came to use more frequently.

52You also experimented with cocaine, and it was clear that drugs were a massive problem for you at the time of your offending.  You married when you were 19, and you and your wife have three children.  Ultimately, the two of you separated because of your drug use, and once that separation occurred, your drug use became even worse.

53Since being placed on the Community Corrections Order and indeed prior to that, you underwent detoxification, you underwent residential drug treatment.  When you were bailed on 29 October 2018, you attended the Habitat Therapeutics Residential program for a month.  You then went home to live with your parents and have remained with them since.

54You are undertaking a Certificate III in Engineering.  You are undertaking an apprenticeship in a very specialised area of hydronic heating, and evidence was given by your employer, Mr Gosnick, on the plea about the speciality of this area, your very positive qualities as an employee, and the aim that when Mr Gosnick retires, you will take over the business.  You have mended fences with your partner, you are very much involved with your children, whom you see multiple times a week.  You regularly attend Narcotics Anonymous.  You have done very well on the Community Corrections Order that I placed you on.  You have competed all but four hours of the 150 hours of unpaid community work.

55The prosecution agrees that a combination response disposition to your offending would be appropriate, and I, because of the progress you have made, am prepared to place you on such an order.  I have made it very clear, Mr Mimmo, how appallingly I regard your offending.  As a result of this offending, it seems to me that, although the disposition should reflect the rehabilitative measures you have undertaken and the very improved prospects of rehabilitation that you now have, there should be some element of condemnation of your conduct.  There should be some element of punishment, and so the Community Corrections Order that I will place you on will be a lengthy one.  Could you stand up, please, sir.

56In my view, the circumstances of this offending arise, essentially, from the one incident, and allow me to deal with this by way of an aggregate sentence.  On both charges, you are sentenced to 179 days imprisonment, which I declare to be served by way of pre-sentence detention.  I am going to place you on a Community Corrections Order for a period of three years.

57Now, before I can place you on this order for which you have been assessed and found suitable, I must explain the conditions of that order to you.  You must report to the office of Corrections within two working days, that is by Monday of next week.  Whilst on the order, you must not commit any offence punishable by imprisonment.  That does not meant you have to be gaoled, but if you commit an offence for which you could be gaoled, such as knocking off a box of matches from Woolworths, that will be a breach of the order, and I will re-sentence you on these matters.

58You may not leave Victoria without the permission of the community corrections office.  You must report to and receive visits from the community corrections office.  You must report all changes - any change of address or employment - to the community corrections office within 48 hours of the making of that change.  You must not attend upon the community corrections office under the influence of drugs and alcohol.  You must obey all lawful directions of the community corrections office.

59I am going to order that you undertake treatment and rehabilitation for both drug and mental health difficulties.  I note that you have been tested for use of illicit substances and those tests have always proved negative.  It may not be that you are required to do very much more than you are already undertaking on the Community Corrections Order that you are currently undertaking, nevertheless they will be conditions of that order.  There will be supervision, and I order that you undertake 250 hours of unpaid community work.

60Are you prepared to enter this order?

61OFFENDER:  Yes, Your Honour.

62HER HONOUR:  Thank you very much, we will just - you can have a seat.

63ASSOCIATE:  (Indistinct words).

64HER HONOUR:  Yes, that will also be judicial monitoring.  Have a seat, Mr Mimmo, while we prepare the document.

65ASSOCIATE:  When would you like the first one?

66HER HONOUR:  They can be in February next year.

67ASSOCIATE:  Thirteenth?

68HER HONOUR:  The first judicial monitoring will take place on 13 February 2020 at 9.30, and you can be beamed in from the community corrections office.  Thank you, Mr Mimmo.  All right.

69MR DICKIE:  Your Honour, the report that I would recommend under 48CA that some of the work might be satisfied through other work, Your Honour has had regard to that?

70HER HONOUR:  Yes, I doubt that he is going to have to do - I am not going to order that, Mr Dickie, because I think - I suspect he has done the bulk of that sort of program.

71MR DICKIE:  Yes, Your Honour.

72HER HONOUR:  As a result of the corrections order he is currently on, and the 250 hours is basically a punishment.

73MR DICKIE:  I understand that, Your Honour.  I just thought I would raise that ‑ ‑ ‑

74HER HONOUR:  So I am not going to let him - look, I think you, Mr Dickie.  I am aware that that is available, but I do not think he will have many of them in any event.

75MR DICKIE:  Yes, Your Honour.

76HER HONOUR:  And 250 hours is the punitive part of the order.

77MR DICKIE:  As Your Honour pleases.

78HER HONOUR:  Thank you.

79MR DICKIE:  And Your Honour, if the Crown could be formally excused from attending the judicial monitoring?

80HER HONOUR:  Nobody ever has to attend judicial - I never expect legal representation at those.  I have to do a s.6AAA as well.

81MR DICKIE:  Yes, Your Honour, that is - thank you, Your Honour.

82HER HONOUR:  Pursuant to s.6AAA, had you not pleaded guilty, I would have sentenced to a term of imprisonment of 4 years, and ordered that you serve a minimum term of 2 years before becoming eligible for parole.  Make that three years.  Four’s a bit much.

83ASSOCIATE:  Three with a two?

84HER HONOUR:  Yes, three with a two.  Thank you.  Just get Mr Mimmo to sign that.

85MR DICKIE:  Those orders that we sought, Your Honour, those will be made as well?

86HER HONOUR:  Yes, I will do those in chambers and send them to you.  If that is all right, Mr Dickie.

87MR DICKIE:  Yes, Your Honour.

88HER HONOUR:  I loaded myself up a bit too much this morning.  I have got another trial waiting in the wings.  Thank you.  Good luck to you, Mr Zammit.  I hope you get back into what you were doing, one day.  All right, Mr Mimmo, I will see you in February.  Thank you, I thank counsel very much for their assistance in this matter.

89COUNSEL:  Thank you, Your Honour.

90HER HONOUR:  All right.  Counsel are excused, and I will stay on the Bench, actually.

91COUNSEL:  Thank you, Your Honour. 

92HER HONOUR:  Thank you, Mr Dickie, I will be right now.

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