R v Zanatta
[2014] ACTSC 338
•30 October 2014
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 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. The offender and Mr Merrillees gave evidence that Mr Merrillees, not the offender, was the driver of the truck on 27 April 2010. The Chief Magistrate found that the offender and Mr Merrillees had concocted the story and she convicted the offender.
Soon after the hearing before the Chief Magistrate, in the course of being interviewed for the purpose of a pre-sentence report, the offender stated that he had been the driver of the vehicle.
Mr Merrillees was charged with aggravated perjury because of the evidence that he gave before the Chief Magistrate. He entered a plea of not guilty. The matter was heard before Higgins CJ in April 2013.
During the trial before Higgins CJ, the offender gave sworn evidence to the same effect as that which he had given before the Chief Magistrate, that is, that Mr Merrillees was the driver on 27 April 2010. The Court rejected the evidence of the offender and Mr Merrillees, and found Mr Merrillees guilty of aggravated perjury before the Chief Magistrate.
In sentencing Mr Merrillees, Higgins CJ observed that Mr Merrillees had clearly lied, had exhibited no remorse and was deserving of punishment by a period of imprisonment because he had committed an offence that struck at the heart of the justice system. Higgins CJ sentenced Mr Merrillees both for the aggravated perjury, and for an offence of possession of drugs for the purpose of supply. For the offence of aggravated perjury, his Honour imposed a sentence of two years’ imprisonment. The effective sentence was one of three years’ imprisonment, to be served by way of full‑time imprisonment for the first nine months, periodic detention for the second nine months, and by way of a suspended sentence for the remaining 18 months. Mr Merrillees’ prior criminal history was similar to that of the offender.
Objective seriousness
Any offence of this nature is serious. It strikes at the heart of the justice system.
In this case, it was not the first occasion when the offender had perjured himself. He had perjured himself in the Magistrates Court. He was the architect of the perjury that was committed by himself and Mr Merrillees for the purpose of the offender avoiding a lengthy disqualification period. Soon after the hearing in November 2010, the offender admitted, in effect, that he had perjured himself, stating to the author of a pre-sentence report that he had, indeed, been the driver of the vehicle. After exposing the lie himself, he foolishly persisted with it, although he had the opportunity to reflect upon his position over several years.
By engaging in the conduct constituting the offence itself, that is, the perjury before Higgins CJ, the offender himself gained no benefit. His evidence was a quid pro quo for the evidence that Mr Merrillees gave in the Magistrates Court to benefit the offender.
It was virtually inevitable that the offender would be convicted of this matter. I am informed that he was not in receipt of legal advice until relatively recently.
Subjective circumstances
The offender is 35 years old. He has convictions for driving with the prescribed concentration of alcohol in his blood. The most recent offence occurred on 27 April 2010. For that offence, he was disqualified from driving for five years and was sentenced to two months' imprisonment, suspended after one month on condition that he enter into a two-year good behaviour order. Apart from the driving matters, the offender’s criminal history is not significant. There is no prior history of dishonesty.
The offender had a difficult upbringing. He was subjected to domestic violence by his father. His mother had a serious mental health problem. He has had a generally chaotic life due to his involvement with drugs and alcohol.
He has been a poly-substance abuser since 18 years of age. His overconsumption of alcohol is reflected in his criminal history. When the offender was incarcerated for a month in 2010, he reflected on his lifestyle and, as a result, he dramatically reduced his alcohol consumption to the point where he was drinking only a small amount of alcohol on a social basis. However, a couple of years later he began to abuse amphetamines and his use increased to use on a daily basis. He claims that he last used amphetamines about a month ago.
The offender conducted his own business between 2007 and 2014. The business ceased trading due to financial problems, which were not of the offender’s making. For the past year or so, the offender has been on Centrelink benefits. He has significant debts.
The offender’s life has been “on hold”, partly because of these proceedings. He has job offers and, once he has served a sentence of imprisonment, he expects to return to full‑time employment.
The offender has suffered from depression since the death of his father in 2004. The depression was exacerbated by the business collapse. In 2011 he was diagnosed with depression and he was medicated for that condition. Unfortunately, after a period of time, he ceased taking his medication. I do not have any information about the offender’s current mental state.
The offender expressed regret for his actions to the author of the pre-sentence report. He acknowledged that he had wasted the Court’s time. The offender explained that, having commenced the lie, he felt locked into a position of lying, and that is why he persisted with the lie.
Considerations of parity
I must take into account considerations of parity. I have referred to Mr Merrillees’ circumstances. They are very similar to those of the offender. Mr Merrillees was a mature adult. The lies that he told were similar to those told by the offender. Mr Merrillees had a similar criminal history, and he raised subjective circumstances by way of mitigation of the penalty that would otherwise have been imposed. According to Higgins CJ, Mr Merrillees lacked remorse.
There are some points of distinction between Mr Merrillees and the offender. First, the offender was the architect of the plan and the initial beneficiary of the perjury before the Chief Magistrate. He was not an anticipated beneficiary of the lies that are the subject of the offence before the Court. Because the perjury is not the first occasion that he has perjured himself, to some extent the offender loses the benefit of leniency that might otherwise have been extended because he had no prior criminal history of dishonesty. He perjured himself before the Magistrates Court. On the other hand the offender has expressed some regret, and that is consistent with his plea of guilty.
General deterrence
In sentencing the offender, the Court is required to consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). General deterrence is a prominent sentencing purpose.
The Crown referred to the decision of the New South Wales Court of Criminal Appeal in R v Fish (2002) 131 A Crim R 172 (R v Fish) where, at [152], reference was made to an earlier decision of the Court of Criminal Appeal in R v Aristodemou (Unreported, New South Wales Court of Criminal Appeal, Carruthers, Finlay and Badgery-Parker JJ, 30 June 1994) (R v Aristodemou). The Court in R v Fish cited the following observations made by Badgery-Parker J in R v Aristodemou:
Any person who commits an offence of perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an ICAC Inquiry should do so in the clear understanding that if his offence is detected he will go to jail except in very particular circumstances.
Gleeson CJ and Hunt CJ at CL agreed) in R v Bulliman (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Abadee J, 25 February 1993) as follows:
False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for the making of false statements on oath and whatever be the circumstances in which the offence or offences are committed.
The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case.
Other relevant considerations
Apart from the sentencing purpose of general deterrence, other purposes are relevant in this case, particularly accountability, denunciation and protection of the community from the harm that flows from undermining of the justice system. Rehabilitation is also a relevant consideration.
In sentencing the offender the Court must have regard to the sentencing purposes in s 33 of the Sentencing Act. One of the relevant considerations is s 33(1)(c):
If the offence forms part of the course of conduct consistent with a series of criminal acts of the same or a similar character – the course of conduct.
One must be cautious in relation to the relevance given to this consideration. In this case, the offence was the second of two similar matters. The offender is not being sentenced for the earlier matters. However, he is being sentenced in the context that there was an earlier matter and, therefore, he should not be treated as a person who has perjured himself on only one occasion.
I have already referred to the other s 33 considerations that are relevant.
It is to be noted that the offence for which the Court is sentencing the offender is an offence against s 702 of the Criminal Code, rather than s 703. Section 703 creates the offence of perjury simpliciter, an offence to which a maximum available penalty of seven years applies. The offence for which I am sentencing the offender is an offence against s 702 of aggravated perjury, to which a maximum available penalty of 14 years applies. I was referred to my decision in the matter of R v Alma (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 19 November 2013), in which I suspended the sentence that was imposed, but that was a matter prosecuted under s 703 of the Criminal Code and in imposing that sentence I had regard to the principles in R v De Simoni (1981) 147 CLR 383.
Sentence
The offender is convicted of aggravated perjury. I have selected a notional starting point of 25 months’ imprisonment, slightly higher than the sentence starting point for Mr Merrillees. The plea of guilty has reduced the sentence to 21 months’ imprisonment. The first six months is to be served by way of full-time imprisonment. The second six months is to be served by way of periodic detention. The final nine months of the sentence will be suspended, upon the offender entering into a good behaviour order for a period of nine months. The good behaviour order will be conditional on the offender accepting the supervision of Corrective Services and reporting to Eclipse House within five working days of the end of the periodic detention order. The six months of full-time imprisonment will run from 30 October 2014 to 29 April 2015. The six months of periodic detention will run from 30 April 2015 to 29 October 2015. The first periodic detention period will commence on 1 May 2015.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 16 December 2014 |