Director of Public Prosecutions v Zimmaro

[2019] VCC 917

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00281
CR 19-00322

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN ZIMMARO
ASHLEIGH BURNS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2019
DATE OF SENTENCE:	21 June 2019
CASE MAY BE CITED AS:	DPP v Zimmaro & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 917

REASONS FOR SENTENCE
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Subject: Criminal law - sentence      

Catchwords:   Pleas of guilty by each accused to one charge of aggravated burglary – plea of guilty by Burns to one charge of criminal damage – plea of guilty by Zimmaro to one charge of recklessly causing injury – early pleas – gravity of offending less than the mid-range of seriousness – no planning or pre-meditation – limited criminal history of Burns – brief drug dependence – victim of domestic violence - very good prospects for rehabilitation – more serious criminal history of Zimmaro with long-standing drug dependence - guarded prospects.

Sentence: Burns – 12 month’s imprisonment with 12 month CCO

Zimmaro – 2 years and 3 months with non-parole period of 18 months 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Locke	OPP
For Accused Zimmaro	Mr J. Rattray	Giorgiannai & Lang Lawyers
For Accused Burns	Mr A. Purcell	Emma Turnbull

HER HONOUR:

1Ashleigh Burns and Steven Zimmaro have each pleaded guilty to a charge of aggravated burglary, Charge 1 on the indictment.  Mr Zimmaro has also pleaded guilty to recklessly causing injury which is Charge 2 and Ms Burns has also pleaded guilty to a charge of criminal damage, Charge 3.  These are all serious offences as is demonstrated by the maximum sentences applicable of 25 years, 10 years and five years respectively.

THE CIRCUMTANCES OF THE OFFENDING

2Ms Burns and Mr Zimmaro were in a relationship at the time of the offending and together they were evicted from the house in Sunbury where they had been staying.  The house was owned by Kelly McCloy.

3At about 8 am on 15 September 2018, several days after the eviction, Ms McCloy was in the process of changing the locks on the doors of the house helped by a friend, Tony Spirovski, and his friend, a Mr Bali.

4At this time, two friends of the accused, Beau Littlejohn and Matthew Brown, whom Ms McCloy had met on a previous occasion, entered the house and told her that Ms Burns and Mr Zimmaro were coming to retrieve some belongings they had left behind.

5Ms McCloy told them that Ms Burns and Mr Zimmaro had not arranged a time with her and if they came back in an hour, she would leave their possessions in the carport.  They left and Mr Spirovski went outside.  Ms McCloy locked the security door and front door after them.

6Because she was concerned for her safety, she went with Mr Bali to a rear bedroom in another part of the house where they locked themselves in.

7Meanwhile, at the front of the house, Mr Spirovski saw Ms Burns and Mr Zimmaro get out of a vehicle.  They approached him and said they were there to collect their things.  Mr Spirovski told them to come back in an hour and their possessions would be waiting for them in the carport.

8Ms Burns started banging on the windows and yelling out to be let in, threatening to break the door down and bring Ms McCloy out if she were not let in.  Mr Spirovski told her to stop.

9Mr Zimmaro then approached the front door and tried to unlock the security door with his key.  When that did not work, he pulled on the security door until it bent and he could force it open.  He then kicked the front door until it broke open.  That is Charge 1 to which each accused has pleaded guilty.

10Ms Burns walked through the house to the rear bedroom in which Ms McCloy and Mr Bali were locked.  She picked up a drill from the kitchen bench and started drilling into the deadlock.  She called out to Ms McCloy, 'Open the fucking door'.

11What happened next is set out in the prosecution summary.  It is apparent that Mr Spirovski played a part in the altercation but it is far from clear what that role was.

12In any event, the agreed facts are as follows.  Ms McCloy leaned against the door in case Ms Burns managed to open the door, and she called the police on her mobile phone.  She told the operator that Ms Burns had threatened to kick in her door and smash her face.  Mr Spirovski approached her and told her to stop twice where upon Mr Zimmaro told him, 'Back off my missus'.

13He then punched Mr Spirovski twice in the face, once in the nose and once on the left side of his face.  Mr Spirovski saw what he thought was a pair of knuckledusters in the Mr Zimmaro's hand and this is Charge 2.

14Mr Spirovski took hold of Mr Zimmaro's arms and shepherded him out the front door.  In doing so, they tripped down the front step and landed on the ground.  Mr Spirovski kept Mr Zimmaro's arms pinned down to prevent being further assaulted.

15The police arrived soon afterwards and located a pair of knuckledusters in Mr Little John's vehicle.  Mr Spirovski was taken to hospital and treated for a broken nose and cuts to his face and mouth.  He also suffered from swelling to his spine and hip regions in the days following the assault.

16Mr Zimmaro was also taken to hospital and was discharged several hours later directly to the police station where he was interviewed.  Ms Burns was arrested at the scene and taken to be interviewed.

17Mr Zimmaro  answered all questions and admitted to breaking down the internal door saying words to the effect that he was concerned about Kelly and wanted to know what was going on.  That explanation is at odds with how Ms McCloy perceived it and would not appear to justify the actions he took in trying to forcibly gain entry to that part of the house. Mr Zimmaro also answered questions and acknowledged that he had done the wrong thing. 

18Both accused have remained in custody since their arrest, a period of just over nine months.

THE GRAVITY OF THE OFFENDING

19The pleas in mitigation on behalf of both accused describe the incident as an attempt by them to retrieve their property that escalated in a manner that had not been intended or planned and to some extent that is borne out by their answers in their interviews.  It has the effect of reducing the gravity of the aggravated burglary charge so it can be described as being at a low level but not at the lowest possible level.

20The house was no longer their home and they forced their entry despite the entreaties of Mr Spirovski to stop.  Ms McCloy was so frightened that she locked herself away and Ms Burns still attempted to break the deadlock on the door of the rear bedroom. .

21Mr Purcell, on behalf of Ms Burns, submitted that the absence of aggravating features reduce the gravity of the circumstances.  He noted that the victims were not taken by surprise because they knew the accused were coming, the fact that it was daylight, that no offensive weapons were brought there, that it was of relatively short duration and there was no motive such as retribution relating to drug debts, for example, as is often the case.

22Having been told to come back in an hour, the accused became frustrated that they could not go ahead with the purpose of their visit, a purpose which Mr Rattray, who appeared on behalf of Mr Zimmaro, described as a reasonable one.  They refused to accept being denied entry and an altercation took place on a relatively minor scale but which Ms Burns herself described as confrontational and frightening. She, of course, had contributed to that by her actions and aggression. 

23It would have been even more frightening for Ms McCloy who telephoned the police.  Even without a victim impact statement, that is a safe inference to draw.  No such statement was received despite indications that one might be provided.

24The incident was described by the prosecutor as a persistent forced entry with violence which cannot be characterised as unusual or at the lowest end of the scale of seriousness as it was put by the defence.  However, it was conceded by the prosecution that the aggravated burglary charge is put on the basis of entry as a trespasser with someone present with the intention of damaging property rather than to assault a person.

25My view is that it is not an unusual incident but it is below the level of mid range.  Certainly it is criminal behaviour which requires general deterrence and denunciation to take priority in sentencing but with just punishment tempered by the particular circumstances of each accused.  I turn to those now.

PERSONAL CIRCUMSTANCES – STEVEN ZIMMARO

26Mr Zimmaro, you are a single man aged 29 and although you have been in custody before on remand, this will be your first custodial sentence.  You have demonstrated some remorse by having pleaded guilty in circumstances where you chose not to cross-examine the victim, Mr Spirovski, as to his role in the altercation and you conceded to the police that you were in the wrong.

27You grew up in dysfunctional family circumstances with little stability after your parents separated, and from the ages of 14 to 22, you had no stable home.  You used drugs heavily from your early adolescence and drug addiction has plagued you for many years despite some periods of abstinence.

28You were married briefly and a child was born, who is now two years old and in the care of his mother.  You have remained on good terms with her and you expect to resume contact with your son when you are released.

29When your marriage ended, so did your employment with your father-in-law and once again you were homeless and lapsed back into daily drug use which included methamphetamine, GHB and Xanax.  It was during this time that you met Ms Burns.

30After leaving school in Year 9, you completed a four-year apprenticeship as a mechanic and thereafter had sporadic employment.  Recently, you were assessed by Dr Aaron Cunningham who considers that you have no mental health problems and your intellect is intact and you would benefit from a disposition that would facilitate your rehabilitation from drug use.

31You began offending as a young adult and your criminal history is dominated by driving offences, some of a serious nature, as well as offending consistent with your longstanding drug use.  You have been sentenced twice before for recklessly causing injury.

32In July 2016, you were placed on a Community Correction Order in the Magistrates' Court for a range of offences and after breaching it, the original order was varied to last for a further 24 months.  You completed that order all but for seven hours of community work and during that period you responded well to the obligations imposed on you and remained drug-free.

33The completion of that order coincided with the breakdown of your marriage, the loss of your job and your home, and you relapsed into drug use which continued during your relationship with Ms Burns.

34Whilst in custody, you have completed several programs and have produced four clean drug screens.  You are apparently keen to take part in drug counselling and you have plans to live with your mother in Kerang.  She had planned to be at court for your plea hearing as she has attended previous court hearings but there was a misunderstanding as to the nature of the hearing yesterday and, as a result, she was not present.

35I take into account your plea of guilty which has avoided a trial and the cross-examination of the witnesses which has enabled the case to be expedited.  That is of course considerable assistance to the criminal justice system and you are entitled to a discount on your sentence because of that.

36I also accept that you have taken responsibility for the offending and have not sought to shed the blame for your own wrongdoing.

37The principle of parity is an essential consideration in this case.  In other words, the sentence I impose on you should be proportionate to that imposed on Ms Burns and vice versa as far as possible.

38Your role is more serious than that of Ms Burns because you committed the assault and that is the starting point.  You are several years older than her and you have a more serious criminal record with a history of longstanding drug dependence. That means your prospects for rehabilitation are not good and I agree with the learned prosecutor's characterisation of them as being guarded.  I accept that you have used your time in custody well and have formed positive plans for your future once you are released but your success will depend upon remaining abstinent from drugs through difficult times as you have not been able to do in the past.

39Accordingly, there is justification for you to be sentenced differently from Ms Burns.  Your counsel submitted that a combined sentence of imprisonment with a Community Correction Order was appropriate but in my view the offending is too serious to justify that and I shall sentence you as follows. Will you stand now please, Mr Zimmaro?

40For Charge 1, you are sentenced to 18 months' imprisonment and for Charge 2, one year.  Nine months of the sentence for Charge 2 is to be served in cumulation upon the sentence for Charge 1 resulting in a total effective sentence of two years and three months.

41I order that you serve a minimum period of 18 months before being eligible for parole.

42I declare that you have spent 279 days in pre-sentence detention not including today, which is to be reckoned as already served and I shall note that on the court record.

43If you had pleaded not guilty to these charges, I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years.

44Would you be seated now please, Mr Zimmaro.

PERSONAL CIRCUMTANCES – ASHLEIGH BURNS

45Ms Burns, I now turn to your personal background and circumstances.

46You have just turned 25 and you were 24 at the time of the offending.  You have never been in custody before and you have a very limited criminal history of one appearance in the Magistrates' Court for a consolidated plea covering a range of offending mainly, if not totally, related to illicit drug use.

47You were placed on a non-conviction Community Correction Order and less than four weeks later you committed the current offences.  It is noted that you have no prior court appearances for any crimes of violence nor of damaging property and against that background, Mr Purcell submitted that this incident was a type of behaviour that was unusual for you to have engaged in.

48Your parents separated when you were a young child but you have remained close to both of them and to your stepmother, and to your siblings and grandparents.

49A number of your family members have written to the court describing how shocked they were to hear of your incarceration because offending against the law was so out of character.  You have been described as 'pleasant, friendly and well-mannered'.

50You completed Year 12 and found work in your local community in hospitality in which you seemed to be thriving until a relationship breakup caused you to lose your way, as one writer described it.

51After that, in the second relationship, you were the victim of violence which was controlling and abusive, resulting in an intervention order being made against the perpetrator in January 2017, and that person served a sentence of two months for an assault upon you.

52You are fortunate to have a very supportive and solid family, whose members have collaborated to provide support for you in the form of weekly visits to you in prison and daily phone calls.  Their letters express their confidence in your ability to change and return to the person you used to be.

53Your prospects for rehabilitation are described as very good, based on your earlier history, your excellent family support and your progress in prison.  It is of course not to your credit that you offended again so soon after being placed on a Community Correction Order and you have yet to be dealt with for that breach, but just as was the case with Mr Zimmaro, your serious drug dependence rendered you very vulnerable to that risk.

54While in custody, you have completed courses and been screened for drug use and your release plan is to live with your family in their local community and work for your father in his business.  I take into account that you are still a young woman and that if you can successfully tackle your drug dependence and the ongoing risk it represents, there are no other reasons why you would continue to offend.

55You are entitled to a discount on your sentence for having pleaded guilty at an early stage and for having avoided a trial as I explained earlier.  It seems you have some insight into what you did, understanding that your poor decisions led to a very serious situation which has seen you spend a long time in custody.

56You have been assessed as suitable for a Community Correction Order and I shall sentence you to a term of imprisonment in combination with that order.

57Will you stand now please?

58For Charge 1, you are sentenced to 12 months' imprisonment.

59For Charge 3, you are sentenced to six months' imprisonment to be served concurrently with the first sentence.

60Once you are released, the Community Correction Order will begin, convictions will be recorded and it will last for 12 months.  You will be under supervision and will be required to have assessment and treatment for drug addiction and any other programs considered necessary to reduce the risk of offending.

61You must perform 100 hours of unpaid community work over that 12-month period.  Those hours may be reduced by the number of hours you spend in programs.

62You will also be required to attend court for judicial monitoring from time to time; the first date for that will be Tuesday, 3 December 2019.

63Within two days of your release from prison, you must report to the Corrections Office which is at 24-27 Dimboola Road, Broadmeadows, before 4 pm.

64You have now spent 279 days in pre-sentence detention which is to be reckoned as already served and, again, I shall note that on the court record.

65If you had pleaded not guilty, I would have sentenced you to two years and six months' imprisonment with a non-parole period of 18 months.

66The prosecution has applied for disposal orders in respect of the knuckledusters and the drill and I shall make those orders subject to hearing anything further about them.  Mr Purcell, is there any comment about that?

67MR PURCELL:  No opposition from our perspective, Your Honour.

68HER HONOUR:  Mr Rattray?

69MR RATTRAY:  No, Your Honour.  No.

70HER HONOUR:  All right.

71Now, the Community Correction Order is ready for signature by Ms Burns.  Mr Purcell, would you like to have a look at that and accompany my associate to the dock?

72MR PURCELL:  Yes, Your Honour.  Thank you.

73MS LOCKE:  Your Honour, I should just indicate that Ms McCloy is present in court.

74HER HONOUR:  I see.

75MS LOCKE:  Yes.

76HER HONOUR:  Which person is she?

77MS LOCKE:  She is sitting in court - - -

78HER HONOUR:  Are you Ms McCloy?  Ms McCloy, I understood that efforts had been made during the recent past and yesterday to obtain a victim impact statement from you.  That was not able to be achieved.  I have completed my sentence now.  If you wish to see a copy of these sentencing remarks, that can be made available through the prosecutor.

79MS McCLOY:  Thank you.

80HER HONOUR:  Anything further, Ms Locke?

81MS LOCKE:  No, Your Honour.

82HER HONOUR:  Mr Rattray?

83MR RATTRAY:  No, Your Honour.

84HER HONOUR:  Mr Purcell?

85MR PURCELL:  No, Your Honour.

86HER HONOUR:  Thank you.  Thank you, Officers.  You may take Ms Burns and Mr Zimmaro now.

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