R v Zanatta - [2014] ACTSC 338

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Zanatta
Citation:	[2014] ACTSC 338
Hearing Date(s):	30 October 2014
DecisionDate:	30 October 2014
Before:	Murrell CJ
Decision:	Conviction recorded. Sentenced to 21 months’ imprisonment: · First six months (30 October 2014 to 29 April 2015) to be served by full-time imprisonment; · Second six months (30 April 2015 to 29 October 2015) to be served by periodic detention; · Final nine months to be suspended upon entering into a good behaviour order.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – early guilty plea – aggravated perjury – parity between co-offenders – general deterrence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) ss 702, 703
Cases Cited:	R v Aristodemou (Unreported, New South Wales Court of Criminal Appeal, Carruthers, Finlay and Badgery-Parker JJA, 30 June 1994) R v Bulliman (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Abadee J, 25 February 1993) R v De Simoni (1981) 147 CLR 383 R v Fish (2002) 131 A Crim R 172
Parties:	The Queen (Crown) Marco Virginio Zanatta (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr M O’Brien (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 74 of 2014

MURRELL CJ:

On 19 September 2014, the offender pleaded guilty to one count of aggravated perjury in breach of s 702(1) of the Criminal Code 2002 (ACT) (Criminal Code). In April 2013, he made a false sworn statement in legal proceedings (the trial of Mr Merrillees for aggravated perjury) with the intention of procuring an acquittal where the offence in question was punishable by imprisonment.

The offence of aggravated perjury carries a maximum available penalty of 14 years' imprisonment, 1400 penalty units or both.

The plea was entered at an early stage in the Supreme Court. It attracts a discount for utilitarian value of at least 15%.

Background

On 27 April 2010, the offender was charged with failing to provide a breath sample as a repeat offender, and with drive while disqualified. Police attention was drawn to a Toyota Hilux truck and they followed the truck to an address in Kambah, where the vehicle stopped outside the residence of a Mr Mattick. Police exited their vehicle and saw the offender seated in the front passenger seat of the truck. There was no one else in the truck. The offender opened the passenger door and ran from the truck. Police pursued and arrested him. When they searched the offender, they located the keys to the truck. The offender asserted that he had not driven the truck, but he refused to identify the driver. He refused to provide a breath sample. At the time, he was disqualified from driving.

On 18 November 2010, the charges proceeded to a defended hearing before the Chief Magistrate. The prosecution called the two police officers. The defence called the offender, Mr Merrillees and Mr Mattick.…

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 Zanatta

Details

AGLC: R v Zanatta [2014] ACTSC 338
Case: [2014] ACTSC 338
Decision Date: 30 October 2014

CaseChat Overview and Summary

The case of R v Zanatta involved the defendant, Zanatta, who was convicted of aggravated perjury. Zanatta entered an early guilty plea, which was a factor considered during sentencing. The case was heard and determined by a court of criminal jurisdiction in Australia. Zanatta's legal team argued that the sentence should reflect the mitigating factor of the early guilty plea and should also ensure parity between co-offenders. The prosecution, on the other hand, emphasised the need for general deterrence given the gravity of the offence.

The court was required to balance several legal principles in determining the appropriate sentence. These included the principle of parity between co-offenders, the benefit of an early guilty plea, and the need for general deterrence. The court had to consider whether these mitigating and aggravating factors warranted a sentence that diverged from the typical penalties for aggravated perjury. The primary issue was how to calibrate the sentence to achieve a fair outcome that balanced these competing considerations.

The court acknowledged the defendant's early guilty plea as a mitigating factor, which typically reduces the severity of the sentence. However, the court also recognised the gravity of the offence of aggravated perjury, which undermines the integrity of the judicial system. The court decided that a split sentence, combining periods of full-time imprisonment, periodic detention, and a suspended sentence under a good behaviour order, was appropriate. This approach aimed to achieve both punishment and deterrence while considering the mitigating factor of the early guilty plea. The court ordered that Zanatta serve six months in full-time imprisonment, followed by six months of periodic detention, and the final nine months to be suspended under a good behaviour order.

Orders

Orders of the court

Conviction recorded. Sentenced to 21 months’ imprisonment:

· First six months (30 October 2014 to 29 April 2015) to be served by full-time imprisonment;

· Second six months (30 April 2015 to 29 October 2015) to be served by periodic detention;

· Final nine months to be suspended upon entering into a good behaviour order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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