Director of Public Prosecutions v Zanatta

[2024] VCC 40

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02180

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL ZANATTA

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2023
DATE OF SENTENCE:	31 January 2024
CASE MAY BE CITED AS:	DPP v Zanatta
MEDIUM NEUTRAL CITATION:	[2023] VCC 40

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — found guilty by jury verdict - causing injury intentionally (1 charge), and rape ( 2 charges). Offender and victim had known each other for a number of years.

Legislation Cited:      Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic).

Cases Cited:             Gray (a pseudonym) v The Queen [2018] VSCA 163; R v Verdins

[2007] VSCA 62; Bugmy v R (2013) 302 ALR 192; DPP (Vic) v Drake [2019] VSCA 293.

Sentence:                  Total effective sentence of 11 years imprisonment with a non-parole period of 8 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Borg	Solicitor for the Office of Public Prosecutions
For the Accused	Ms N. Smith	SLKQ Lawyers

HER HONOUR:

1Paul Zanatta you were indicted and stood trial on two charges of causing injury intentionally, one charge of false imprisonment, one charge of threat to kill, one charge of causing injury recklessly and two charges of rape. The charges concerned three incidents. The final incident occurred on the evening into the morning of September 3 and 4 2020 and involved Charges 5,6 and 7 which were the two charges of rape (Charges 6 and 7) and one charge of causing injury intentionally (Charge 5). The jury were satisfied beyond reasonable doubt of your guilt on these charges and acquitted you on Charges 1 – 4.

2The maximum penalties for these offences are 25 years for the charge of rape and 10 years for the charge of intentionally causing injury.

3Rape is a category 1 offence and requires a term of imprisonment. It is also a standard sentence offence. The standard sentence being 10 years' imprisonment. I am required to fix a non-parole period of at least 70 per cent of the total effective sentence.

4In accordance with the verdict of the jury I find the facts of your offending to be as follows.

5The victim of your offending was Rachel Assar[1]. Ms Assar was born in July 1984. She is cognitively impaired. She was 46 years old when you committed these offences. She had been your intimate partner for a few years.

[1]A pseudonym.

6On the night of 3 September 2020 you and Ms Assar rented an Airbnb in Clayton South. Over the course of the evening, you assaulted and digitally raped Ms Assar vaginally and anally.

7Ms Assar gave evidence that you tried to have anal sex with her and to stick things in her vagina. She said you began by putting your fingers in her vagina (Charge 6). She said it was more than one finger. She said it hurt and she was telling you not to do it.  She described you being rough and 'just being an animal'. She said this occasion was not like other occasions when you had had sex in the past. She was telling you to stop being rough and you said, 'Well you cunts have babies out of there'.

8She said you were wanting to tie her up and to insert an oil bottle into her vagina.

9She gave evidence that you then tried to put your other hand in her backside. She was resisting and saying no but you put your fingers in her anus and it hurt. She was unsure how many fingers you put in her anus. (Charge 7)

10Ms Assar gave evidence that you slapped her to the side of the head (Charge 5) and she then kicked you and tried to fight you off.

11She managed to kick you off and went upstairs and had a shower. You would not allow her to leave the house but she managed to escape and make her way to Westall station where she made a Triple 0 call at 1. 53 am. Police attended shortly thereafter.

12In the Triple 0 call which was played to the jury Ms Assar told the operator that her body was sore all over from you assaulting her. She told the operator that you had subjected her to 'fucking full on punches' to her head and her body. Ms Assar was captured on CCTV footage in a lift at the station. She can be seen examining her injuries in a reflective surface. In evidence she identified herself and said she could see bruising and cuts around her mouth caused by your assault on her.

13A medical assessment was organised for Ms Assar. She was examined by Dr Sexton at 9.55 am at the Monash Medical Centre on 4 September 2020. Ms Assar had multiple bruises and cuts to her body and face. She was found to have a nasal bone fracture.

14Ms Assar did not make a victim impact statement in this matter. I am unsurprised. She gave evidence that she came from a background where family violence occurred but was not reported to the police and also that she was a person reluctant to cooperate with police and prosecuting authorities.  

15On the gravity and effects on the victim of the offence of rape I have regard to the observations of the Court of Appeal in Gray (a pseudonym) v The Queen in which it was said[2]:

'Rape is an intensely personal crime. The effects on the victim are not just those that flow from the physical invasion of their person and security, but also from the more intangible loss of their rights and freedoms. This significant impact of rape on the victim needs to be given proper weight in sentencing; it cannot be overlooked or undervalued.'

[2]        Gray (a pseudonym v The Queen [2018] VSCA 163 [53]

16I turn now to your personal circumstances and in setting out your personal circumstances I refer to the psychological report of Naomi Cameron, Forensic Psychologist, dated 5 October 2023 in addition to the submissions of your counsel. Ms Cameron conducted her assessment of you on 14 September 2023.

17You were born in July 1968. You are presently 55 years old.

18You were born in Melbourne. You reported to Ms Cameron an unstable and violent childhood but were reluctant to engage with her on this topic. You told her you were estranged from your family due to having spent extensive time in jail.

19You only went to school until Year 8. Your school attendance was erratic. You reported having had viral meningitis as a child at the age of around three or four, one of the side effects of which was that you were functionally deaf until the age of around nine which no doubt adversely affected your schooling.

20You have only ever held temporary, intermittent employment. You report that you have been a recipient of the Disability Support pension for around 15 years due to your chronic pain conditions.

21You have had two serious intimate relationships. One of your partners died from a drug overdose. You have an adult daughter with whom you have had no contact for several years. You told Ms Cameron you have no friends nor any social support networks of any kind.

22You have an extensive criminal record. You first appeared in the Children's Court in 1981 when you were only 13. Your first appearance in the adult jurisdiction was in 1987. You have multiple convictions for drug use, possession, and trafficking. You have convictions for firearms and weapon possession, dishonesty offences, driving offences and violent offending. Most significantly and relevantly for the sentence I am to impose, you were sentenced in the Supreme Court on 19 December 2008 by the Honourable Justice Curtin to a sentence of eight years with a non-parole period of five years and nine months on two charges of intentionally causing serious injury upon your plea of guilty to these charges.[3] The offences concerned serious assaults on two women occurring in February and April 2005.

[3]        R v Zanatta [2008] VSC 614

23The first charge involved you and your victim going to your home. You crushed some tablets and injected yourself and thereafter became erratic and aggressive and made baseless accusations against your victim. You armed yourself with a Stanley knife and told her you were going to puncture her neck and cut her spine. You taped her wrists and threatened to cut off her hands and feet. You punched her in the face and mouth and started to strangle her. There was a struggle and your victim fell through a glass table. She suffered multiple soft tissue injuries.

24The second charge concerned a victim who was a casual acquaintance. Again, you went to your home, and you became erratic and violent after crushing tablets and injecting yourself. You accused your victim of poisoning you. You punched her to the eye and then armed yourself with a shovel which you brought down upon her foot. You also had a knife and you hit her to the neck with either the shovel or the knife causing a 10-centimetre laceration to her neck.

25Justice Curtain in her sentencing reasons described your offending as very serious and unprovoked. She states:

'Your victims were two women, one of whom was barely known to you, and you had invited into your home. They were each assaulted over an extended period of time which resulted in the injuries they sustained. The attacks upon them were in every respect entirely unprovoked. The gravamen of your conduct is not to be minimised in any way'.[4]

[4]        Ibid at [35]

26Unsurprisingly, given your extensive criminal history you have spent much of your adult life in custody. In her report Ms Cameron states:

'Mr Zanatta's only periods of desistance from crime have been when incarcerated. Since 2012 his longest period in the community has been for five months. He has otherwise been in and out of prison. He provided no explanation for his criminal history'.

27You have a history of polysubstance drug abuse. You have never engaged in counselling or treatment. You have not used illicit drugs since your arrest in this matter in 2020.

28Ms Cameron reviewed some collateral medical material provided to her by your solicitors.  It disclosed that you have a history of depression, anxiety and Post Traumatic Stress Disorder (PTSD) referable multiple motor vehicle accidents in which you have been involved and an occasion when you were allegedly stabbed in custody. You told Ms Cameron that you had a history of self-harm and suicide attempts. You reported to her that you had been prescribed an anti-depressant in the past.

29In terms of your physical health collateral medical material disclosed you have chronic and multisite widespread pain due to multiple traumas, hepatitis B resulting in liver cirrhosis, hemochromatosis (excessive iron absorption) and anaphylaxis due to bee stings.

30In 2005 you sustained a severe fracture to your cervical spine near the base of your neck in a motorbike accident. In 2013 you sustained a refracture in the same place and were hospitalised for six months.

31You have been treated on strong opioid drugs.

32You described to Ms Cameron ongoing pain in multiple sites. In custody you are being treated with a suite of drugs in high dosages due to your persistent pain. Ms Cameron says you are preoccupied and frustrated by your level of constant pain and your limitations due to your pain.

33Ms Cameron found your ability to participate in her assessment adversely affected by your pain. She describes you as exhibiting, 'irritability, frustration and anger and repeatedly answering “I don't know” or “I don't understand”' which she attributed to your discomfort, although she allowed for the possibility that you were not motivated to participate. She says:

'His reluctance to share personal information may be underpinned by his entrenched antisocial and unconventional attitudes, resistance to authority and mental health intervention, and was consistent with statements that he does not cooperate with police'.

34Because of your inability or unwillingness to participate, testing of your mental function was abandoned by Ms Cameron. She recommended a neuropsychological assessment.

35She gave the following opinions:

'Mr Zanatta's functioning within society has been severely impacted by his childhood instability, chronic pain, long-term unemployment, and untreated mental health issues. These have been exacerbated by his maladaptive ways of coping (i.e., substance abuse) which had reinforced his propensity to engage in criminal activity.'

36She goes on:

'Mr Zanatta has a predisposition to mental health issues due to his history of childhood instability characterised by alleged family violence, his parent's separation, perceived neglect, and long-term estrangement from his family. Adverse childhood experiences disrupt the development of emotional regulation in children and can impact on their ability to regulate themselves and manage their emotions and impulses'.

37She gives the opinion that you may have existing diagnoses of major depressive disorder, generalised anxiety disorder and opioid misuse disorder, however she says the diagnoses require further assessment due to your limited insight and vague self-reporting.

38She assessed you as a high risk of general reoffending and says you require specialist assessment of your risk of sex offending.

39She gives the opinion that you are unlikely to receive the care you require in custody for your chronic pain.

40In accordance with Ms Cameron's recommendation, you were assessed by clinical neuropsychologist Dr Laura Anderson. She prepared a report dated 28 November 2023. You were assessed by her on 30 October and 1 November.

41Again, you failed to fully participate in this assessment consistently reporting that your pain was such that you could not engage. As a consequence, Dr Anderson says she is not able to provide an evidence-based conclusion of your cognitive functioning. Based on your presentation she estimated your general intelligence to be likely in the low average range.

42Dr Anderson gives the opinion that your chronic pain presentation was the most significant impairment to your daily functioning, including impacting on your thinking skills. She gives the opinion that you may decline to participate in any form of structured offence-specific treatment because you will perceive it as too onerous. She gives the opinion:

'My view is that Mr Zanatta's complex medical needs, his reduced mobility and the impact of his chronic pain upon his psychological functioning and the need for substantial pain medication are all factors that increase the complexity of Mr Zanatta's capacity to cope and manage within a prison environment'.

43On your medication she notes that it is highly restricted within the prison environment, and that specialist pain management is often not supported by Justice Health.

44In a follow up email to your legal representatives Dr Anderson says:

'that the drug [you are] prescribed, Lyrica is essentially a banned substance in Victorian prisons. As such it is my view the fact that Paul is prescribed Lyrica in prison is a testament to the severity of his chronic pain condition. Lyrica also has a significant sedating effect and individuals can experience significant withdrawals when Lyrica is ceased.'

45I turn now to the submissions of the parties and I begin with the submissions in mitigation of sentence raised with me at your plea by your counsel, Ms Smith.

46First, your background of family violence and disadvantage enlivened Bugmy[5] principles and Ms Smith place reliance on Ms Cameron's report in support of this submission.

[5]        Bugmy v R (2013) 302 ALR 192

47Secondly, that because of your chronic pain you find incarceration more onerous than a prisoner without your chronic pain conditions. Ms Smith further submitted on the basis of Ms Cameron and Dr Anderson's report that your physical pain debilitated you psychological and consequently Verdins[6] limb 5 was engaged in sentencing you.

[6]          R v Verdins [2007] VSCA 62

48Thirdly, you have been in custody throughout most of the period of COVID‑19 restrictions and consequently you have undergone many periods of quarantine and lockdown and your access to programmes and courses has been restricted.

49Ms Smith did not dispute the seriousness of your offending nor she could she take issue with a description of your prospects of rehabilitation as demonstrably poor.

50She acknowledged the only appropriate sentence was a term of imprisonment with a head sentence and a non-parole period.

51Ms Borg on behalf of the director submitted the following features of your offending were relevant to my assessment of its objective gravity. First, it occurred in the context of an intimate relationship. Secondly, there was violence involved. Thirdly, the extent of Ms Assar’s injuries and fourthly that the offending occurred at night in your accommodation where Ms Assar’s was entitled to feel safe.

52Ms Borg accepted that Verdins limb 5 was engaged in sentencing you in accordance with the conclusions in the reports of Ms Cameron and Dr Anderson about the effects of your chronic pain on your mental functioning.

53Ms Borg submitted that your risk of reoffending should be assessed as high given your criminal history which includes violence against women.

54She submitted the sentencing principles of specific and general deterrence, just punishment, denunciation and community protection were all engaged in sentencing you.

55On the application of Bugmy she noted it was not raised with Justice Curtain in the Supreme Court back in 2008 but she acknowledged the material substantiates that you have been highly institutionalised since childhood.

56She referred me to a number of comparator cases.[7]

[7]        Shrestha v The Queen [2017] VSCA 364; Bolton v R [2019] VSCA 21; Forbes (a pseudonym)  v The Queen [2018] VSCA 341; Flynn (a pseudonym) v The Queen [2020] VSCA 173

57Rape is a very serious crime. So much is apparent from the very high maximum penalty. You raped your intimate partner Ms Assar. Your offending was violent and erratic and you subjected Ms Assar to a vicious assault which caused her injuries including the nasal fracture. Your offending is serious and your moral culpability is high.

58However, on the basis of the evidence, I accept the violence you witnessed and endured and the disadvantage you experienced during your childhood and your formative years engages Bugmy principles.

59As was said by the Court of Appeal in the case of Director of Public Prosecutions (Vic) v Drake,

'the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As was recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent's sentence'.[8]

[8] [2019] VSCA 293, [32].

60I find your moral culpability is moderated pursuant to Bugmy principles. However, weighted against this is the gravity of your offending and its many aggravating features. Furthermore, your inability over the years to refrain from violence including violence against women over many years enlivens the sentencing principles of specific deterrence and community protection in addition to the sentencing principles of general deterrence, denunciation and just punishment.

61It is clear that you suffer chronic pain and I accept that your chronic pain condition affects you mentally as described in both Ms Cameron and Dr Anderson's report. I accept that prison is a very difficult place for you and I accept the application of Verdins limb 5.

62Sadly, I can only conclude that your prospects of rehabilitation are demonstrably poor and your risk of reoffending is high. I agree with Dr Anderson that based on your presentation you are unlikely to engage with specialist offence programs which may be on offer to you.

63The comparator cases provided by the prosecution have been of some assistance but ultimately I must sentence you on your own facts and circumstances.

64I take into account the maximum penalties for the offences; I also take into account the standard sentence for the offence of rape.  A standard sentence is not the same thing as a mandatory sentence, nor is a standard sentence the primary sentencing consideration or the starting point, from which to add or subtract time.  It is but one matter I must take into consideration, and I do so.  I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully all the facts, matters and circumstances I have taken into consideration in sentencing you.

65Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you relied, I intend to sentence you to a sentence that is less than the standard sentence.  Taking into account all the matters that I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows.  You can remain seated in the circumstances.

66On Charge 5 you are convicted and sentenced to 3 years' imprisonment.

67On Charges 6 and 7 you are convicted and sentenced to 8 years' imprisonment on each charge.

68Your offending all concerns the one incident and therefore the single transaction rule is engaged. But given the serious nature of each of your offences in my view a significant measure of cumulation on all charges is called for.

69Therefore Charge 7 is the base charge. I direct that 2 years of the sentence on Charge 6 and one year of the sentence on Charge 5 be served cumulatively upon each other and upon the base charge.  That makes a total effective sentence of 11 years' imprisonment.

70I direct you serve a non-parole period of 8 years' imprisonment.

71I declare that the pre-sentence detention is 1,244 days not including today.

72I make the disposal order sought by the prosecution.

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