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:

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).

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

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).

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

Circumstances of offending

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mazzonetto v The Queen

Details

AGLC: Mazzonetto v The Queen [2021] VSCA 310
Case: [2021] VSCA 310
Decision Date: 15 November 2021

CaseChat Overview and Summary

The appellant, Mazzonetto, appealed against his conviction and sentence for recklessly causing serious injury to another person by means of a single punch, which resulted in a traumatic brain injury. The case was heard by the High Court of Australia, which was asked to determine whether the trial judge had erred in sentencing by failing to consider the application of the fifth and sixth limbs of Verdins. The appellant argued that the sentence was manifestly excessive and that the trial judge had failed to properly apply the principles of sentencing in relation to the particular circumstances of the case.

The central legal issues before the court were whether the trial judge had failed to consider the application of the fifth and sixth limbs of Verdins, and whether the sentence imposed was manifestly excessive. The appellant's counsel argued that the trial judge had not properly considered the principles of sentencing as they applied to the particular circumstances of the case, and that the sentence imposed was disproportionate to the offence committed. The Crown, on the other hand, submitted that the trial judge had adequately considered the relevant principles and that the sentence imposed was appropriate and proportionate to the gravity of the offence.

The court found that the trial judge had failed to adequately consider the application of the fifth and sixth limbs of Verdins, and that the sentence imposed was manifestly excessive. The court noted that the trial judge had not adequately considered the appellant's personal circumstances, including his background and the circumstances of the offence, and had not given sufficient weight to the mitigating factors. The court also found that the sentence imposed was disproportionate to the gravity of the offence, and that the non-parole period of 4 years and 3 months was excessive. The court granted the appellant leave to appeal against his sentence.

The court ordered that the appeal against sentence be allowed, and that the matter be remitted to the Court of Appeal for re-sentencing. The court did not address the conviction, and the conviction was therefore upheld. The court emphasised the importance of properly considering the principles of sentencing and the particular circumstances of each case, and noted that the trial judge had failed to do so in this instance.

Orders