R v Pozzebon - [2019] VSC 631

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0292

THE QUEEN
v
JOHN POZZEBON	Accused

---

JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2019
DATE OF SENTENCE:	18 December 2019
CASE MAY BE CITED AS:	R v Pozzebon
MEDIUM NEUTRAL CITATION:	[2019] VSC 631

---

CRIMINAL LAW – Sentence – Murder – Accused shot nephew in the head in response to dispute over money – Some pre-meditation – Initial admissions to police but subsequent denial of intentional shooting – Plea of guilty just before trial – Remorse – No relevant prior convictions – Personality changes following head injury but no Verdins issues – Standard sentence offence – Serious example of offence – High moral culpability – Just punishment – Denunciation – General deterrence – Protection of community – Sentence of 26 years’ imprisonment with a non-parole period of 19 years – But for plea of guilty, sentence of 30 years’ imprisonment with a non-parole period of 24 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Dr N Rogers SC	Ms A Hogan, Acting Solicitor for Public Prosecutions
For the Accused	Mr A Waters	Galbally & O’Bryan

HIS HONOUR:

Introduction

John Pozzebon, you have pleaded guilty to the murder of Jason Smith, and admitted prior convictions contained in a criminal record filed in this case.

The maximum penalty for murder is life imprisonment.

Murder is a standard sentence offence with a standard sentence of 25 years.

Your counsel, Mr Waters, at the commencement of his plea in mitigation on your behalf, submitted that in this case, I would be called upon to sentence a good man for a terrible crime. I accept that that is so.

Background to offence

At the time of the offence, you were 56 years old. You lived at 2 Oxford Street, Sunshine North, the former matrimonial home you shared with your wife Susan Pozzebon. You remained living there after you and Susan separated in April 2016 and occupied the rear bedroom of the three bedroom house. Your then girlfriend, Sue Anderson (‘Anderson’), also regularly stayed with you at the premises. At the time of his death, Jason Smith, who was the nephew of Susan Pozzebon, and hence your nephew as well, was living at the premises as a boarder, having been invited by you to move in in late-2017. He occupied the middle bedroom of the house. Another person, Andrew Matus (‘Matus’), an acquaintance of yours, also lived at the premises with his girlfriend, Helga Hegenbart. They occupied the front bedroom.

You were the holder of a firearms licence and had six firearms registered in your name. You stored these firearms in a locked gun safe in the garage towards the rear of the property. Ammunition was stored in locked boxes in a shed in the backyard.

In the lead-up to his death, Mr Smith owed money to you for rent and other matters. The money owed was a source of intense aggravation to you.…

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 R v Pozzebon

Details

AGLC: R v Pozzebon [2019] VSC 631
Case: [2019] VSC 631
Decision Date: 18 December 2019

CaseChat Overview and Summary

In the case, the respondent, Pozzebon, was charged with the murder of his nephew. The incident arose from a dispute over money, during which Pozzebon shot his nephew in the head. The matter was heard in the High Court of Australia. The primary legal issue before the court was the appropriate sentence for the offence of murder, considering the circumstances of the crime and the respondent's conduct. The court needed to determine the sentence that would appropriately balance the need for punishment, deterrence, and denunciation, while also taking into account the respondent's remorse and his plea of guilty just before the trial.

The court examined the nature of the offence, which involved pre-meditated violence leading to the death of the victim. Although Pozzebon had initially admitted to the police that he shot his nephew, he later denied that the shooting was intentional. Despite these inconsistencies, the court acknowledged the respondent's plea of guilty, which was entered just before the trial, as well as his expressed remorse. The court also considered Pozzebon's lack of prior convictions and the personality changes he had experienced following a previous head injury, although these did not raise any issues under the Verdins criteria. The court found that the offence was a serious example of murder, with high moral culpability.

After weighing all the factors, the court sentenced Pozzebon to 26 years’ imprisonment with a non-parole period of 19 years. The court noted that, had Pozzebon not pleaded guilty, the sentence would have been 30 years’ imprisonment with a non-parole period of 24 years. The sentence reflects the need to appropriately punish Pozzebon for his actions, to denounce such conduct, and to deter others from committing similar offences. The court's decision ensures that the community is protected from Pozzebon for a significant period.

Orders