Mazzonetto v The Queen

[2021] VSCA 310

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0099

DANIEL MAZZONETTO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2021
DATE OF JUDGMENT:	15 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 310
JUDGMENT APPEALED FROM:	[2021] VCC 401 (Judge Johns)

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CRIMINAL LAW – Leave to appeal – Sentence – Recklessly causing serious injury – Single punch causing traumatic brain injury – Total effective sentence of 6 years and 9 months – Non-parole period of 4 years and 3 months – Whether judge failed to consider application of fifth and sixth Verdins limbs – Whether sentence manifestly excessive – Leave to appeal granted. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K Farrell	Paul Vale Criminal Law
For the Respondent	Ms R Harper	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA:

1. On 23 March 2021, the applicant pleaded guilty, before a judge of the County Court sitting in the Koori Court Division to: one charge of recklessly causing serious injury;[1]  one charge of possessing a drug of dependence;[2]  and one related summary offence, namely, contravention of a family violence interim intervention order.[3] 

   [1]Crimes Act 1958 s 17.

   [2]Drugs, Poisons and Controlled Substances Act 1982 s 73(1). 

   [3]Family Violence Protection Act 2008 s 123(2).

1. On 8 April 2021, the judge sentenced the applicant as follows:[4]

   [4]DPP v Mazzonetto [2021] VCC 401 (‘Sentencing Remarks’).

Charge on indictment L11700655	Offence	Maximum	Sentence	Cumulation
1	Recklessly causing serious injury	15 years	6 years and 9 months	Base
2	Possessing a drug of dependence	1 year	1 month	–
Related summary offence
Charge 4	Contravention of a family violence interim intervention order	2 years	$700	–
Total effective sentence:		6 years and 9 months
Non-parole period:		4 years and 3 months
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		266 days
6AAA statement:		9 years’ imprisonment with a non-parole period of 5 years and 6 months
Other relevant orders:		Nil

1. The applicant seeks leave to appeal against sentence on two proposed grounds:  first, that the judge erred by failing to take into account the fifth and sixth of the Verdins principles;[5]  and secondly, that the sentences imposed on charges 1 and 2, the total effective sentence and the non-parole period are each manifestly excessive. 

   [5]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).

1. For the reasons that follow, the application for leave to appeal will be granted, in respect of slightly modified grounds.

Circumstances of offending

1. At the time of the principal offence the applicant was 27 years old and under the influence of methylamphetamine. 

1. In the afternoon of 20 May 2020, the applicant approached Joshua May, who was unknown to him, at Southern Cross Station in Melbourne, asking to borrow a cigarette lighter.  The applicant became agitated;  he walked away from Mr May and returned several times, offering verbal abuse.  At one point, he accused Mr May of having his phone. 

1. Mr May stood facing forward, avoiding eye contact with the applicant.  The applicant moved behind Mr May, dropped his right shoulder and, without warning, threw a right-hand punch to the side of Mr May’s face.  Mr May was immediately knocked unconscious.  His body went stiff as he fell backward to the footpath.  The applicant immediately left the scene (charge 1 — recklessly causing serious injury).

1. Some weeks earlier, on 7 April 2020, a family violence interim intervention order was issued against the applicant.  It was served on him on 1 May 2020.  The order relevantly prohibited him from communicating with, or being within five metres of, his partner Melissa Tartaglia.    

1. On 16 July 2020, a search warrant was executed on the applicant’s apartment.  The applicant was present, as was Ms Tartaglia (summary charge 4 — contravention of a family violence interim intervention order).

1. Inside the apartment, police located five small plastic sealable bags containing methylamphetamine (charge 2 — possessing a drug of dependence). 

1. The impact to Mr May’s head caused by the punch and his contact with the footpath caused a traumatic brain injury, specifically, a life-threatening multi-compartmental acute traumatic intracranial haemorrhage.  There were fractures to three skull bones and bleeding within the brain.  Mr May underwent emergency surgery. 

1. Mr May’s rehabilitation is ongoing.  The sentencing judge referred to a report prepared by Dr Jo Ann Parkin, a clinical forensic medicine physician.  Dr Parkin explained that Mr May continues to experience ongoing medical issues as a result of the injury, including impairment of his memory and higher-order cognitive functions, disturbed sleep, ongoing ringing in the ears, and mental health problems.  Mr May now requires the use of a four-wheel frame to walk because of ongoing dizziness and impaired balance.  In a victim impact statement, Mr May described worsening mental health and emotional instability, a loss of his sense of smell and has difficulties with his sense of taste, disrupted sleep, difficulty with simple tasks, social anxiety, and a general sense of despair.  The judge described the injury and its effects as catastrophic.[6]

   [6]Sentencing Remarks [9].

Other relevant sentencing considerations

1. The judge described the applicant’s prior criminal history as ‘relatively extensive’.[7]  It included prior convictions for violence, theft and drug offending.  In 2013 he was sentenced to 2 years and 4 months’ imprisonment on property charges including aggravated burglary with an offensive weapon.[8]  In April 2015 he was sentenced on further theft and armed robbery charges to 209 days’ imprisonment and placed on a community correction order.  After breaching that order he was sentenced to imprisonment for 3 years and 9 months.  He was subsequently placed on community correction orders for other offending.

   [7]Ibid [11].

   [8]DPP v Mazzonetto [2013] VCC 195.

1. Significantly, on 12 May 2020 — only 8 days before the present offending — the applicant was convicted of intentionally causing injury in very similar circumstances, having knocked a stranger unconscious with a single punch.  He was released on that day on a community correction order, having served a period of about eight weeks in custody. 

1. The sentencing judge acknowledged that the applicant had demonstrated a measure of genuine remorse.  As part of the sentencing process, the applicant had read out a letter of apology to Mr May, and acknowledged, for example, that he had essentially ruined Mr May’s life, and that what he had done was unfair.[9]  The applicant also demonstrated remorse by pleading guilty at the earliest opportunity.  The judge acknowledged the enhanced utilitarian value of that plea, given the ongoing impacts of the COVID-19 pandemic.[10]

   [9]Sentencing Remarks [16], [34].

   [10]Ibid [43].

1. The judge acknowledged the applicant’s voluntary, meaningful and respectful participation in the Koori Court sentencing process, a process which is more participatory and burdensome than a traditional plea.[11]  He also acknowledged his productive use of his time in custody, abstinence from drugs, and his willingness to participate in programs relevant to his rehabilitation.  He also acknowledged that the applicant had the support of his partner and her father. 

   [11]Ibid [42].

1. The judge described the applicant as a proud Yorta Yorta man, descended from a ‘strong line’ of Yorta Yorta people including relatives who were potentially positive role models.[12]  But the applicant’s upbringing was exceedingly difficult.  His father was an alcoholic;  his mother provided little emotional support.  He was exposed to substance use and violence through his mother’s extended family, which he came to understand as acceptable behaviour.  He lacked alternative positive adult role models.  Placed in foster care at the age of five, he spent time with more than

   
   

   20 different foster families before moving to residential care as a teenager.  He moved schools frequently and was bullied.  He left school after completing year 8, and commenced using and abusing drugs soon after.  He ran away from residential care at the age of 17, and was homeless for some time.  He has since struggled to obtain stable living and working arrangements.[13] 

   [12]Ibid [18].

   [13]Ibid [27].

1. Dr Tiffany Lewis, a forensic psychologist, stated that the applicant has been impacted by neglect and complex trauma throughout his childhood.  She said that the applicant, at a young age:

was exposed to repeated violence through his father and his mother’s extended family.  Further, he was subsequently exposed to family violence through his mother’s later partners.  It is likely that the early exposure to violence taught Mr Mazzonetto that he could use violence to be heard, feared and as a way to solve problems.  All of these behaviours were likely taught and reinforced to him at a young age.  It is likely that Mr Mazzonetto has learnt that violence is necessary in order to survive. 

1. Dr Lewis reported that the applicant had previously been diagnosed with post-traumatic stress disorder, and continued to experience daily ‘flashbacks’.  The applicant had also previously been diagnosed with depression, for which he had been prescribed antidepressant medication which he continued to use.  Dr Lewis described the applicant as meeting the criteria for antisocial personality disorder, and considered it likely that he had experienced symptoms of drug-induced psychosis in the past.  On assessment, the applicant reported auditory and visual hallucinations.  Dr Lewis recorded that the applicant had experienced suicidal ideations from a young age, and had attempted suicide on multiple occasions in the three years preceding the offending, including an attempt just prior to his imprisonment. 

1. The judge accepted that the applicant’s background enlivened the principles set out in Bugmy v The Queen (‘Bugmy’).[14]  He said that the relationship between the applicant’s:

exposure to alcohol and violence … at an early age and the trauma associated with that experience and your experience as a young child and through your teenage years are centrally relevant to a proper assessment of your subjective culpability for the offending in this case.  The effects of intergenerational trauma are apparent in your life story.  You were further traumatised through foster care …[15]

[14](2013) 249 CLR 571.

[15]Sentencing Remarks [35].

1. The judge was satisfied that the applicant’s substance abuse and use of violence as a way of resolving disputes had its genesis in the dysfunction of his early life.[16]  However, he noted that the applicant had, for some time, appreciated the link between his substance abuse and his offending.[17]

   [16]Ibid [37].

   [17]See DPP v Heyfron [2019] VSCA 130 [56]–[59] (Priest, Kaye and T Forrest JJA).

1. The judge made no reference to the principles in Verdins. 

1. Ultimately, the judge considered that the principles of specific and general deterrence and denunciation assumed particular significance.  He assessed the applicant’s prospects of rehabilitation as guarded, given his criminal history and difficulties in managing his substance abuse and violent impulses.[18]

   [18]Sentencing Remarks [44].

Proposed grounds of appeal

1. As mentioned, there are two proposed grounds, as follows:

1.The judge erred by failing to take into account the application of limbs 5 and 6 of the Verdins principles when sentencing the applicant for charges 1 and 2 and determining the total effective sentence and non-parole period. 

2.The sentences imposed on charges 1 and 2, the total effective sentence of imprisonment and the non-parole period are manifestly excessive and outside the range of sentences reasonably open in the circumstances of the offence and the offender.    

Charge 2

1. It may be noted at the outset that, while the proposed grounds refer to the individual sentences for both charges 1 and 2, the applicant’s submissions were almost wholly directed at the base sentence for recklessly causing serious injury.  Counsel for the applicant accepted that, because there was no cumulation of the sentence for charge 2, any challenge to that sentence was somewhat ‘academic’. 

1. In light of the applicant’s past history (which includes convictions for trafficking a drug of dependence) and the maximum sentence of 12 months’ imprisonment on charge 2, it is not reasonably arguable that the sentence of 1 month for possessing a drug of dependence is manifestly excessive.  There is also no reasonable prospect that, even if the error alleged under proposed ground 1 infected the sentence on charge 2, the Court of Appeal would reduce the total effective sentence on that account.[19]

   [19]Criminal Procedure Act 2009 s 280(1)(b).

1. Leave to appeal in respect of the sentence on charge 2 is therefore refused.

Proposed ground 1 — failure to take account of Verdins considerations

1. The applicant contended that that the judge failed to take into account the fifth and sixth limbs of Verdins in sentencing.  He contended that these matters were expressly raised in the written (if not the oral) submissions on the plea, and that there was ample material in Dr Lewis’ report to engage both limbs. 

1. In particular, in parts of Dr Lewis’ report (to some of which the judge did not refer), she had relevantly identified that:

(a)               the applicant had been previously diagnosed with post-traumatic stress disorder, and continued to experience daily ‘flashbacks’;

(b)              the applicant had been previously diagnosed with major depressive disorder, for which he had been prescribed (and continued to use) antidepressant medication;

(c)               the applicant presently met the criteria for antisocial personality disorder;[20]

[20]The applicant contended that the report identified that he was also presently suffering from ‘moderate anxiety’ and ‘drug induced psychosis’, but there is no apparent basis for those contentions in the report.  Dr Lewis did not suggest that the applicant presently meets the formal criteria for either condition. 

(d)              the applicant has probably experienced drug-induced psychosis in the past, and may be continuing to experience drug-induced psychosis in prison; 

(e)               the applicant is presently experiencing paranoia, and auditory and visual hallucinations;

(f)               the applicant had experienced suicidal ideations from a young age, and had attempted suicide on multiple occasions in the three years preceding the offending, including just prior to his imprisonment;

(g)              the applicant’s mental health difficulties are probably attributable to early life trauma and biological variances, as well as his significant substance abuse;  and

(h)              the applicant’s mental health difficulties will increase the difficulty of his imprisonment because he experiences ‘perceptual disturbances’ (including auditory and visual hallucinations) which are ‘confusing and scary’ and because he has been unable to obtain necessary antidepressant medication, resulting in increased rumination, disturbed sleep, and ‘depressive and anxious’ symptoms. 

1. The applicant submitted that this material disclosed:  (a) that the sentences would weigh more heavily on him than another person without his conditions (engaging the fifth limb);  and (b) a serious risk that imprisonment would have a significantly adverse impact on his mental health (engaging the sixth limb).  Counsel for the applicant conceded that the evidence for the fifth limb was ‘much stronger’ than the evidence for the sixth limb.  Nonetheless, she submitted that the fifth and sixth limbs of Verdins were material sentencing considerations which ought to have featured in the sentencing exercise, but had not. 

1. The respondent accepted that it would have been preferable had the judge expressly referred to the Verdins point, and that Dr Lewis’ report provided at least limited support for the fifth Verdins limb. 

1. However, the respondent contended that the report provided no support for the sixth limb.  None of the matters identified by Dr Lewis indicated a risk that the applicant’s mental health was likely to deteriorate in custody;  the matters raised were either historical or pertained to the circumstances when the applicant was assessed.  For example, there was no suggestion that the shortfall in antidepressant medication as at the time of the assessment would be long-term, or that the ‘perceptual disturbances’ experienced during the assessment would persist or escalate in custody. 

1. Further, the respondent contended that the judge’s failure to advert to the applicant’s Verdins submission did not indicate a failure to consider or account for that submission.  Rather, it was said that the judge adequately took into account the application of the fifth Verdins limb.  The judge had indicated that he had regard to the parties’ written submissions, in which the point was recorded.  He referred extensively to Dr Lewis’ report in his remarks.  In responding to the judge’s invitation to identify relevant sentencing matters following the sentencing conversation in the Koori Court, the applicant’s counsel chose not to ventilate the Verdins point.  In those circumstances, it was said, the judge’s failure to refer to it in the sentencing remarks was attributable to its lack of prominence in the applicant’s submissions rather than a failure to consider it. 

1. In my opinion, it is not reasonably arguable that the judge erred by failing to address the sixth limb of Verdins.  The plea submissions advanced on behalf of the applicant referred to ‘limbs 5 and 6 of Verdins’, but only on the basis that the ‘burden of imprisonment would be greater on the applicant than a person without his background or difficulties’, which at best raises the fifth limb.  Moreover, in respect of the sixth limb, Dr Lewis went no further than stating that the applicant had been unable to obtain necessary medication, which had resulted in an increase in ‘rumination, sleep disturbance and depressive and anxious symptoms’.  She concluded that the applicant was ‘likely to find his time in prison confronting’.  This observation about a current inability to access certain medication fell well short of an opinion that being in prison was likely to exacerbate the applicant’s mental health conditions in future.

1. On the other hand, there was clear support from Dr Lewis for the submission regarding the fifth limb;  she expressed the view that the applicant’s ‘mental health difficulties will make his time in prison more difficult than for someone with normal health’.  In my view, it is reasonably arguable that, in not mentioning this factor, the sentencing judge fell into error by failing to take into account a relevant mitigating factor.  Moreover, for the reasons set out in relation to proposed ground 2, it cannot be said that there is no reasonable prospect that the Court would impose a less severe sentence if such an error was established.[21]

   [21]Criminal Procedure Act 2009 s 280(1)(a).

1. There will therefore be a grant of leave to appeal on proposed ground 1, to that extent.

Proposed ground 2 — manifest excess

1. The applicant contended that the sentence on charge 1 fell outside the available range, having regard to the powerful complex of mitigating factors available to the applicant including six factors to which the judge expressly referred, namely:

(i)                the applicant’s early plea of guilty, and its enhanced utility during the present pandemic;

(j)                his genuine remorse;

(k)              the application of the Bugmy principles;[22]

[22]This was a particular focus of counsel’s oral submissions.  Although not advanced as a specific error, it was suggested that the judge had failed adequately to identify that Bugmy applied so as to reduce both the applicant’s moral culpability and the relevance of specific and general deterrence, as well as to reduce the relevance of his previous offending when evaluating moral culpability:  see, eg, DPP v Green [2020] VSCA 23 [86] (Maxwell P, Priest and Kaye JJA). It was also submitted that the judge had failed to specify the extent to which the principles in Bugmy moderated general and specific deterrence:  Marrah v The Queen [2014] VSCA 119 [17] (Redlich and Tate JJA).

(l)                his participation in the Koori Court process;

(m)             his efforts to rehabilitate himself in custody;  and

(n)              the support of his partner and her father. 

1. To that list of mitigating factors, the applicant sought to add the subject of the preceding ground — that is, the application of the fifth and sixth Verdins limbs — as well as a point not advanced before the sentencing judge, namely, the applicant’s risk of institutionalisation.  Counsel observed that the applicant has now spent most of his adult life in custody, and submitted that it would benefit the community if the present sentence facilitated his rehabilitation and avoided his institutionalisation.[23] 

   [23]DPP v Stone [2003] VSCA 208 [20] (Charles JA, Winneke ACJ and Eames JA agreeing at [28] and [29]).

1. In short, the applicant submitted that, once these matters are adequately weighed, the sentence exceeds the available range.  Counsel also relied on current sentencing practices, pointing in particular to:

(o)               a sentence of 2 years and 6 months’ imprisonment imposed in the Koori Court for recklessly causing serious injury, in similar circumstances:  DPP v Dow;[24] and

(p)              a sentence of 5 years’ imprisonment for recklessly causing serious injury upheld by this Court:  Atem v The Queen.[25]

[24][2020] VCC 1605 (‘Dow’).  It should be noted that the injuries in this case, and their effects, were considerably less grave than those in the present case.

[25][2020] VSCA 35.

1. The applicant submitted that in neither case did the offender have the benefit of the Bugmy principles and the enhanced utilitarian benefit of a guilty plea in the circumstances of the current pandemic.[26]

   [26]In Dow, however, Bugmy principles were applied in favour of the offender: [97].

1. The respondent accepted that the sentence imposed was significant, but contended that it was nonetheless within range.  It was observed that the sentence imposed on charge 1 was 45 per cent of the maximum sentence, and the non-parole period was 63 per cent of the total effective sentence.  Counsel for the respondent described the sentences as reflective of the grave and lifelong effects of the offending on Mr May, and the importance of protecting the community from this type of conduct. 

1. The respondent submitted that each of the matters in mitigation recognised by the judge was adequately weighed, and that some of those matters were somewhat ambivalent.  For example, the applicant’s commendable involvement in the Koori Court process was tempered by his prior involvement in that process, after which he had reoffended; and the support of his partner and her father was complicated by the existence of the intervention order.[27]

   [27]It was accepted that this order is no longer in place. 

1. Further, there were countervailing matters, including in particular:

(q)              the applicant’s significant and recent prior criminal history, and the very short period between his release on a community correction order for a similar ‘one-punch’ attack, and the present offending;

(r)               the objective seriousness of the offending, being a violent attack against a defenceless and unknown victim causing a traumatic and life-threatening brain injury and ongoing physical and mental impairments;  and

(s)               the applicant’s guarded prospects of rehabilitation, given his presently limited capacity to manage his violent reactive impulses and his contributing substance abuse. 

1. The respondent submitted that the two comparator sentences identified by the applicant were distinguishable, including because the offenders in both cases were youthful.  A better comparator, it was said, was a decision of this Court confirming a sentence of 6 years’ imprisonment for recklessly causing serious injury in similar circumstances to the present case, except that the offender in that case also had the benefit of youth: Al Wahame v The Queen.[28]  Counsel for the respondent referred to a successful Director’s appeal to this Court, in which an offender who was convicted after trial for similar offending was resentenced to 7 years’ imprisonment:  DPP v Betrayhani.[29]  These decisions, counsel submitted, indicated that the sentence was within the available range. 

   [28][2018] VSCA 4.

   [29][2019] VSCA 150.

1. This was very serious offending with terrible consequences, meaning that general deterrence and protection of the community were important sentencing considerations.  On the other hand, and accepting that this may increase the importance of protecting the community from an offender,[30] the basis for invoking the principles in Bugmy was strong.  Further, there was significant evidence of remorse and a guilty plea, during the pandemic, at the earliest opportunity.  The present sentence of 6 years and 9 months may be contrasted with the sentence of

   
   

   7 years in Betrayhani, imposed after a trial in circumstances where the offender could not point to Bugmy considerations.  That offender, not unlike the applicant, had a prior conviction for recklessly causing injury.  In Al Wahame, the offence was very like the present, but a lesser sentence of 6 years was imposed.  That offender was youthful and had a ‘difficult’ childhood, but not such as was said to raise Bugmy grounds;  he had an extensive criminal history, including violent offending, and offended within weeks of being released from prison on a community correction order for multiple driving and other offences, including a charge of reckless conduct endangering serious injury.  His guilty plea did not yield the added utilitarian benefit of a plea during the current pandemic. 

   [30]Bugmy (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

1. In my view, it is reasonably arguable that the sentence on charge 1 fell outside the available range.

Conclusion

1. Leave to appeal will be granted on the following slightly modified grounds:

1.The judge erred by failing to take into account the application of limb 5 of the Verdins principles when sentencing the applicant for charge 1 and determining the total effective sentence and non-parole period. 

2.The sentence imposed on charge 1, the total effective sentence of imprisonment and the non-parole period are manifestly excessive and outside the range of sentences reasonably open in the circumstances of the offence and the offender.    

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