R v Marzotto

[2021] ACTSC 184

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Marzotto

Citation:

[2021] ACTSC 184

Hearing Date:

23 July 2021

DecisionDate:

26 July 2021

Before:

Burns J

Decision:

See [25]–[30]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary by way of joint commission – aggravated robbery by way of joint commission – damage property – assault occasioning actual bodily harm – pleas of guilty – five co-offenders – where offences premeditated – consideration of rehabilitation – remorse – where co-offenders’ involvement was less than offender’s – consideration of moral culpability where offender was instigator of offending behaviour

Legislation Cited:

Crimes Act 1900 (ACT) s 24

Criminal Code 2002 (ACT) ss 310, 312, 403

Parties:

The Queen ( Crown)

Marco Marzotto ( Offender)

Representation:

Counsel

K Marson ( Crown)

J Sabharwal ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

K D Property Lawyers ( Offender)

File Numbers:

SCC 281 of 2020; SCC 282 of 2020

BURNS J:

1. Marco Marzotto, you appear before me today, 26 July 2021, to be sentenced with respect to the following offences: an offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (the Code), which carries a maximum penalty of 20 years' imprisonment, a fine of $320,000 or both (CC2020/8996); an offence of aggravated robbery, contrary to s 310 of the Code, which carries a maximum penalty of 25 years' imprisonment, a fine of $400,000 or both (CC2020/8997); an offence of damaging property, contrary to s 403 of the Code, which carries a maximum penalty of 10 years' imprisonment, a fine of $160,000 or both (CC2020/8998); and, an offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT), which carries a maximum penalty of five years' imprisonment (CC2020/8999).

1. The circumstance of aggravation in each of the offences of aggravated burglary and aggravated robbery is that you were in company. Each of these offences occurred on 10 July 2020.

1. You entered pleas of guilty to the charges of damaging property and assault occasioning actual bodily harm on 23 September 2020 in the ACT Magistrates Court and you were committed for sentence to this Court on those charges. You entered pleas of guilty to the charges of aggravated burglary and aggravated robbery on 25 February 2021 in this Court following a Criminal Case Conference.

1. The pleas of guilty entered in the ACT Magistrates Court were clearly entered at the earliest possible opportunity and should attract a discount on sentence of 25 per cent. The pleas entered in this Court were not entered at the earliest opportunity but, nevertheless, had significant utilitarian value. I propose to reduce the otherwise appropriate sentences for those charges by approximately 20 per cent to reflect your pleas of guilty which were entered in this Court.

The facts

1. A comprehensive Agreed Statement of Facts was tendered at your sentence hearing. I will not now rehearse that Statement of Facts. I will adopt the brief summary of the facts as set out in the Crown's sentencing submissions which was not challenged by your counsel.

1. You were one of a group of people who travelled from a strip club in Mitchell to the victim's home. The group of which you were a part entered that house by force and without permission, and once inside, threatened and assaulted those within the premises. One of the victims was pregnant and was pushed forcibly by you, despite it having been made clear by her that she was pregnant.

1. The group of which you were a member then located another victim, who I will refer to as HG, in one of the bedrooms. You swung at him and missed. One of your co-offenders, Jordan Knight, held HG's arms behind his back, and another co-offender, Dylan Crick, punched HG several times and yelled, “Where's the phone?” Mr Knight then released HG's arms and punched him. At some point you smashed a plate over HG's head and two mobile phones were stolen from him. You later destroyed those phones.

Objective seriousness

1. In assessing the objective seriousness of all of the offences, I take into account that they were premeditated, and with the exception of the damage property charge, occurred in the victim's home, at night. You not only anticipated that one or more of the residents would be home; it was your very reason for being there. I have no doubt that one of the reasons you went to the victim's home was to assault HG who you had been told had previously wronged one of your co-offenders.

1. The injuries sustained by HG were not trivial. They were not the most serious injuries that would qualify as actual bodily harm.

1. With regard to the aggravated burglary, I take into account that entry to the victim's home was gained by smashing a window.

Subjective features

1. You are 33 years old and you have a not insubstantial criminal history. Most of your previous offences are traffic offences, clearly involving the use of alcohol. You were convicted of offences of assault and assault occasioning actual bodily harm in 2016 and sentenced to terms of imprisonment. I have no information before me about the circumstances of those offences, but it is clear from the sentences imposed that they must have been relatively serious offences. There is little by way of leniency that I can extend to you based on your prior criminal history.

1. Your response to supervision by Corrections in the past has been satisfactory, although your compliance with supervision declined over time. You have undertaken and completed numerous courses and programs in the past directed towards your rehabilitation, both in custody and in the community. Those programs were frequently directed towards alcohol abuse and anger management.

1. At the time you committed the present offences you were on parole, a condition of which was that you were not to consume alcohol. During the sentence hearing your counsel informed me that you were under the influence of drugs and alcohol at the time you committed the present offences. Your parole order was subsequently revoked. You have continued to complete programs directed towards your rehabilitation since being in custody from 4 August 2020.

1. Your childhood does not appear to have been marred by abuse or neglect, although your parents separated when you were 8 years old. You lived with your father and step-mother from when you were 10 years old and you continue to have good relationships with them.

1. You have been involved in three prior intimate relationships, at least one of which was marked by domestic violence on your part. You are currently in a relationship of four years' duration which appears to be stable.

1. You completed Year 10 schooling and subsequently have a reasonably consistent employment history in the building industry.

1. You have a long history of alcohol abuse beginning when you were 18 years old. You have managed periods of abstinence in the past, but you currently do not consider the idea of complete abstinence to be achievable. You also have a history of cocaine use and you told the author of a Pre-Sentence Report that you were using that drug at the time of the present offences.

1. You were diagnosed with Attention Deficit Hyperactivity Disorder and Bi-polar Disorder when you were 12 years old. You have suffered from both anxiety and depression and you suggested to the author of the Pre-Sentence Report that your substance abuse issues may be connected to your mental health conditions but there is no cogent evidence before me on which I could make that finding.

1. You had attempted to minimise your role in these offences when speaking to the author of the Pre-Sentence Report. You suggested that you had just tagged along with your co-offenders, when, in truth, you instigated the idea that the group of you go to the victim's home and you were heavily involved in the offences that followed.

1. I take into account the letter written by you and tendered at the sentence hearing. You speak of your remorse for your actions and your commitment to addressing alcohol and drug abuse. I hope, for your sake, that you maintain that commitment because your history suggests a pattern of doing well in custody, followed by a falling back into your old habits when in the community. I also take into account the contents of the letter which was written by your partner.

1. You also expressed remorse to the author of the Pre-Sentence Report. Not surprisingly, the Pre-Sentence Report recommends that you be treated for alcohol and drug abuse and that your mental health conditions be reviewed and addressed. In my opinion, until such time as that occurs and you come to the realisation that for you there is no safe level of alcohol use, you remain at high risk of re-offending. Your prospects for rehabilitation at this time can only be considered to be guarded.

1. Your five co-offenders have already been sentenced. Two of the female co-offenders were placed on Good Behaviour Orders with community service. A third female co-offender was sentenced to 12 months' imprisonment, fully suspended with a Good Behaviour Order and community service. Your two male co-offenders were sentenced to terms of imprisonment to be served by way of Intensive Correction Orders. I do not refer to their sentences in greater detail because it was accepted that their involvement was less than yours and that no significant issue of parity arises. I, nevertheless, note the sentences that were imposed and use them as some guidance in respect of the sentences appropriate for your offences.

1. I have already referred to the matters relevant to an assessment of the objective seriousness of these offences. In assessing your moral culpability I take into account that you were the instigator of the idea and that you and your co-offenders engaged in vigilante violence towards the victim, HG. If it were not for you this whole incident would not have occurred. You did not know your co-offenders and you could not know the truth of the allegations made against HG. Your incitement of your co-offenders was purely gratuitous. Your moral culpability is not lessened to any significant degree by the fact that you were under the influence of alcohol and cocaine or by your mental health conditions.

1. I have considered all available sentencing options and I have concluded that nothing less than immediate terms of imprisonment are warranted. In that regard I am satisfied that specific deterrence, as well as general deterrence, are relevant and important sentencing considerations with respect to these offences.

Sentence

1. For the offence of aggravated burglary (CC2020/8996), I record a conviction and you are sentenced to 16 months' imprisonment, which I have reduced from 20 months for your plea of guilty, commencing on 3 September 2020 and expiring on 2 January 2022.

1. For the offence of aggravated robbery (CC2020/8997), you are convicted and sentenced to 19 months' imprisonment, which I have reduced from 23 months because of your plea of guilty, commencing on 3 December 2020 and expiring on 2 July 2022.

1. For the offence of assault occasioning actual bodily harm (CC2020/8999), I record a conviction and you are sentenced to nine months' imprisonment, commencing on 3 December 2021 and expiring on 2 September 2022.

1. For the offence of damaging property (CC2020/8999), I record a conviction and you are sentenced to four months' imprisonment, reduced from six months because of your plea of guilty, commencing on 3 December 2021 and expiring on 2 April 2022.

1. The aggregate term of imprisonment I have imposed is, therefore, one of two years, commencing on 3 September 2020 and expiring on 2 September 2022.

1. I set a non-parole period of 16 months, commencing on 3 September 2020 and expiring on 2 January 2022.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 19 August 2021