Isidoro Zocchi v The Queen

[2013] ACTCA 12

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 previous sentence on which his parole had been cancelled, as well as service of the new sentence imposed on 24 February 2012.  That is, as a result of the backdating provided by the sentencing judge, the old and the new sentences ran concurrently for that period. 

4. Mr Zocchi says that his sentence should have been backdated beyond 13 October 2010 to take account of the nearly six months he had already spent in custody in respect of the aggravated robbery. 

5. In my view, his Honour the sentencing judge made two, and possibly three, errors in his treatment of Mr Zocchi’s pre-sentence custody.  First, his Honour should have given reasons for ignoring the first period of custody.  This might in fact have been caused by a simple oversight, but I would not exclude the possibility that his Honour had reasons for ignoring that pre-sentence custody, possibly arising from the degree of concurrency between the new sentence and the earlier sentence. 

6. Secondly, his Honour failed to comply with s 66 of the Crimes (Sentencing) Act 2005 (ACT). By the time Mr Zocchi was sentenced on the aggravated robbery, he was already serving the earlier sentence as a result of the cancellation of his parole, so s 66 required his Honour to set a new non-parole period for the total sentence to which Mr Zocchi then became liable. Finally, in not addressing more generally the earlier sentence, his Honour may have failed to take account of the totality principle.

7. In these circumstances, I would uphold Mr Zocchi’s appeal.  Given the possibility that his Honour had particular reasons for limiting the backdating, I would remit the matter to the sentencing judge for re-sentence.

   I certify that the preceding seven (7) paragraphs numbered [2]–[8] are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

   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

DOWSETT J:

1. I would also agree with Justice Penfold. 

   I certify that the preceding one (1) paragraph numbered [9] is a true copy of the Reasons for Judgment herein of his Honour Justice Dowsett.

   Associate:

   Date:      2013

Counsel for the Appellant:  Mr K Archer
Solicitor for the Appellant: Legal Aid ACT
Counsel for the Crown:  Mr J Lundy
Solicitor for the Crown:  ACT Director of Public Prosecutions
Date of hearing:  11 February 2013
Date of judgment:  11 February 2013