Isidoro Zocchi v The Queen

ISIDORO ZOCCHI v THE QUEEN
[2013] ACTCA 12 (11 February 2013)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 7 - 2012
No. SCC 57 of 2010

Judge:             Higgins CJ, Penfold J and Dowsett J
Court of Appeal of the Australian Capital Territory

Date:              11 February 2013 

IN THE SUPREME COURT OF THE     )          No. ACTCA 7 – 2012
  )          No. SCC 57 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ISIDORO ZOCCHI

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Penfold J and Dowsett J
Date:  11 February 2013 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The matter be remitted to the sentencing judge for re-sentence.

IN THE SUPREME COURT OF THE     )          No. ACTCA 7 – 2012
  )          No. SCC 57 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ISIDORO ZOCCHI

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Penfold J and Dowsett J
Date:  11 February 2013 
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. I agree with the reasons her Honour, Justice Penfold has just given and with the orders her Honour proposes.

   I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of his Honour Chief Justice Higgins.

   Associate:

   Date:      2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 7 – 2012
  )          No. SCC 57 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ISIDORO ZOCCHI

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Penfold J and Dowsett J
Date:  11 February 2013 
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J:

1. On 24 February 2012, Isidoro Zocchi was sentenced to six and a half years imprisonment with a non-parole period of four years for an aggravated robbery.  He does not challenge this sentence except on the ground that in backdating his sentence, the sentencing judge failed to take account of all relevant pre-sentence custody.

2. The history of Mr Zocchi’s pre-sentence custody was as follows. He was arrested in respect of the aggravated robbery on 11 December 2009, and bailed on 31 May 2010 to go to drug rehabilitation.  At that point he had spent about five and a half months in custody.  On 27 July 2010, after he was bailed, his parole on an earlier sentence was cancelled as a result of his failure to report.  Mr Zocchi was re-arrested on 13 October 2010 and remained in custody from then until being sentenced on the current sentence.

3. It seems that Mr Zocchi’s time in custody from 13 October 2010 until 15 September 2012 constituted, among other things, service of the remaining part of the…