R v Zanatta
[2008] VSC 614
•19 December 2008
| IN THE SUPREME COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
1592 of 2005
| THE QUEEN |
| V |
| PAUL ZANATTA |
---
JUDGE: | Curtain J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 December 2008 | |
DATE OF SENTENCE: | 19 December 2008 | |
CASE MAY BE CITED AS: | R v. Zanatta | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 614 | |
REASONS FOR SENTENCE
Catchwords: Criminal law – sentence – two counts of intentionally causing serious injury – pleas of guilty – delay – serious violent offender
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B.F. Kissane | Office of Public Prosecutions |
| For the Prisoner | Mr P. Marin | Theo Magazis & Associates |
HER HONOUR:
1 Paul Zanatta, you have pleaded guilty to two counts of intentionally causing serious injury and have admitted prior convictions.
2 These offences involve two young women and occurred in February and April of 2005. Both of the women were known to you although one of them, Ms Bakos, had only met you on one previous occasion.
3 On 19 February 2005, as arranged between you and she, Ms Bakos went to your home. You and she had something to eat and then went for a ride on your motor bike. You returned to the home and during the evening you both ended up in your bedroom, listening to music. After a while it is said that you started to roll around the bed in pain, and after a time you crushed some tablets and injected them into your arm, which seemed to calm you down, but then your behaviour became erratic and you accused Ms Bakos of stealing money, which she denied. You made her take off her clothes so that you could see where she had hidden the money. By this time you were in a frenzy. You grabbed her by the neck and leg. You took a Stanley knife and held it at the back of her neck and told her you were going to cut her spine. Ms Bakos could feel the knife puncture her neck. You taped her wrists and ankles together with duct tape, threatening that you were going to cut her spine and cut her hands and feet off. Despite this, she managed to break free of the tape. You then punched her in the face and mouth and started to strangle her. In an endeavour to get away, Ms Bakos hit you with a lamp but then she fell off the bed and on to and through a glass table. You continued to hit her to the face and Ms Bakos passed out. When she came to she felt a sharp pain to the left side of her head and her hand was covered in blood. You were sitting in front of her holding a hammer. Ms Bakos was eventually able to make her escape when a delivery man came to the house.
4 She attended at the Maroondah Hospital on 21 February 2005 where she was seen by Dr John Roe who determined that she had suffered multiple soft tissue injuries, including bruising to her middle finger, her ears and right upper arm. There were also seen to be scratches over her neck. It was these injuries, sustained in the course of a violent assault upon Ms Bakos where you choked and punched her and she was rendered unconscious, which form the subject of Count 1.
5 Count 2 relates to Marsha White. She had been a casual acquaintance of yours for some years. On the night of 9 April 2005, she went to your house where you again crushed some blue tablets and injected yourself. The following day, in the morning, she went outside to have a cigarette and you locked her out of the house. You eventually let her back in so that she could retrieve her belongings and when she returned to the bedroom it appeared to her that you had been through her handbag. You told her that she was not to leave because she had drugged your drink and given you poison in your coffee the night before. You were behaving erratically, and this continued for a number of hours. On two occasions, you injected Ms White with what she thought was speed, although that conduct does not form any part of this charge, and you also injected yourself.
6 You kept asking her for the poison and told her that you were going to cut her feet off. You punched her in the eye and picked up a shovel and brandished it about and then held the shovel over her head and brought it down on her right foot. Not surprisingly, Ms White screamed and fell back on the bed and then you grabbed her throat with both hands and a struggle ensued. You had a knife with you and Ms White was able to pick up the shovel but you tried to grab it from her and then started hitting her on the side of her neck and head. Ms White was not able to say what you were hitting her with, but whatever it was, whether it be the knife or the shovel, it caused a 10 centimetre laceration to the neck, and it is this injury which was occasioned during this violent assault, which is the subject of Count 2.
7 Ms White was bleeding heavily and eventually she was able to persuade you to let her go and she was finally able to obtain the assistance of neighbours, who called an ambulance. She was taken to the Royal Melbourne Hospital where she was examined and found to be suffering from bruising to the right forehead, superficial wounds to the lower lip and nose, and a laceration to the neck and a three centimetre puncture wound in the area of the right clavicle, linear abrasions, and bruising across her toes. She was operated on for exploration of the right neck wound and debridement and repair of the wound, and remained in hospital for two days.
8 She remains under the care of her general practitioner and, as I understand it from matters in the victim impact statement, has required plastic surgery to address the scar on her neck. A report by her general practitioner, Dr Beasley, states that she remains symptomatic with right shoulder pain with restricted right shoulder mobility and neck pain and, in 2007, was to be referred to a rheumatologist for further evaluation and management of her shoulder condition.
9 The maximum penalty for intentionally causing serious injury is 20 years' imprisonment. Clearly these are serious offences and each here is committed in a significant degree. Both of your victims were in your home at your invitation and subjected to a violent, frenzied and unprovoked assault. You had taken some substance before each assault and had made nonsensical claims against each of your victims. Your erratic and violent behaviour appears to have progressed throughout each of the assaults. I have no doubt that these must have been very frightening experiences for each of the young women.
10 Victim impact statements made by each of the victims were tendered in evidence. In the victim impact statement of Ms Bakos she described it as such:
"I received bruising around my face from being punched and strangled. My ears were black. I had bruises all over my body from being punched, slapped and kicked all over. I had a cut on the back of my neck from a Stanley knife. I was knocked out a number of times and in and out of consciousness. I had bruising on my neck from being strangled. I was bruised and my body was sore for at least a week after the assault. I felt like I was concussed. I went to the Maroondah Hospital for treatment for four days later. I went because my head was so sore. I had migraines. I was prescribed painkillers."
11 She went on to say that as a result of your offending conduct she has been too afraid to work and has been treated by a psychologist for post‑traumatic shock and panic disorder.
12 Marsha White's victim impact statement speaks in the following terms:
"The biggest problem I face is that to this day I still have very limited use of my right shoulder. This is due to nerve damage in my neck from where I was cut. This has caused my trapezoid muscle to deteriorate to the point where I have very limited strength and motion. I have been told by all my doctors and specialists that this is permanent and can never be fixed. What this really means is that apart from the scar on my neck I cannot move my right arm above my shoulder. I never will. I also have bursitis in the shoulder joint. This is because I cannot move my shoulder and it has begun to deteriorate in the shoulder joint itself. I have to have cortisone injections to help cope with the pain of this condition."
13 The physical injuries Ms Bakos suffers have resolved although Ms White's injuries have had permanent consequences to her.
14 You are 40 years old and have admitted 67 prior convictions from 17 court appearances between 1987 and 2003. Your previous dispositions have included fines, a community based order, intensive corrections orders which you have breached, a suspended sentence of imprisonment which you have breached and 11 sentences of imprisonment actually served. By your own assessment and that of your counsel, you have spent some 14 years in prison.
15 You were arrested for these offences on 21 April 2005 and have been on remand since then and this is said to be the longest period you have been in custody. You are presently being held in a management unit for your own safety. In 1988, while at Pentridge, your throat was cut by three prisoners and you still bear the scar. In 1999, while in prison, you were stabbed in the back three times and the remnants of the knife remain in your back.
16 You have done little while you have been in custody on this occasion because, as I understand it, courses are not readily available in management units and you suffer from a back injury which was aggravated by the circumstances of your arrest and thus it is said you spend most of your time lying down in your cell.
17 An incomplete medical report from Dr Douglas Bell, consultant psychiatrist, dated 14 July 2003 was tendered in evidence as Exhibit 2, as was the report of Dr Foti Blaher from St Vincent's Hospital, dated 2 December 2008 tendered in evidence as Exhibit 3.
18 This latter report details your medical history while in custody. It is apparent from the report of Mr Andrew Muir, Director of the Barbara Walker Pain Clinic, that you do suffer from chronic back pain in the upper back and that you have in the past been prescribed MS Contin for it. You also suffer from hepatitis B and C.
19 A comprehensive report prepared by Dr Danny Sullivan at the request of King J was tendered in evidence as Exhibit 1. Dr Sullivan was asked to prepare the report to ascertain your mental status following upon the discharge of the jury in the previous trial of this matter. You declined to see Dr Sullivan, so he based his opinion on a perusal of various medical records and documentation from Eastern Health and other health services. From those records Dr Sullivan has ascertained, and it is relied upon in your plea, that you have a history of long‑term poly‑substance dependence involving opiates, amphetamines, benzodiazepines and, as Dr Sullivan says, possibly other substances.
20 You have a recurrent history in prison of persecutory symptoms which, by reason of the previous assaults that you have suffered in prison, it may be said may well be grounded in reality.
21 In Dr Sullivan's opinion you have an established diagnosis of anti‑social disorder but you do not appear to suffer any psychiatric disorder, although in the past you were diagnosed on a presumptive basis with a drug‑induced psychosis. You have not, however, had any psychiatric admissions.
22 Dr Bell described you as having significant problems with social anxiety and associated symptoms sufficient to warrant a diagnosis of social phobia and that this condition affects you both in and outside gaol.
23 It appears that you have little in the way of supports in the community.
24 Your childhood was characterised by your father's heavy alcohol abuse and domestic violence directed towards you and your mother. Your parents separated when you were in your teens and when you left school you went to work with your father as an apprentice panel beater, but this stopped when you started offending. Your father offers you his support when you are out of gaol but when in gaol you have very little, if any, family support. Your mother and sisters do not visit you.
25 Your counsel has submitted that at the age of 40 you are now resolved to remain drug free and that this is the longest period you have remained abstinent. Clearly drugs had a role in both of the offences committed here, so it would seem that your prospects for rehabilitation and the likelihood of you not committing further offences can only be achieved if you remain drug free.
26 I turn now to matters in mitigation of the sentence to be imposed.
27 You were originally presented on two counts of attempted murder and alternative counts of intentionally causing serious injury and recklessly causing serious injury and false imprisonment in respect of both victims. A trial of these counts was conducted in March 2007 but the jury was discharged after five days. The precise reason for the discharge is not apparent from the transcript, although it appears that your counsel at the least had difficulty in obtaining instructions. By the time the jury were discharged, both complainants had given evidence and had been cross‑examined.
28 The matter was mentioned before Teague J on 12 November 2007 when the issue of mental impairment was raised but not pursued and then the matter came on for trial before me on 4 December 2008. As far as I can ascertain, the delay in bringing the matter to trial from the date of the mention to the present is not attributable to you in any way and although the jury at the first trial were discharged possibly because of the difficulties with obtaining instructions, there is nothing to suggest either in the transcript of the trial or in the report of Dr Sullivan that such difficulties were not genuine or were in any way contrived so that I am not prepared to say that any consequential delay arising from the aborted trial is your fault.
29 You have been in custody since your arrest on 21 April 2005, and there were two committals held respectively on 3 November 2005 and 20 February 2006 and it is not put that the delay between the committal and the trial which commenced in March 2007 was in any way due to you. Although delay may provide an opportunity for reformation and rehabilitation, that has not been the case here for the reasons previously stated, although it must be said that you have used the time to remain drug free but, nonetheless, the delay does mean that you have had the resolution of this matter hanging over your head for some considerable time.
30 By reason of your pleas of guilty you have saved the complainants the ordeal of giving evidence. This is no small feature in this case as both complainants have been described as "fragile" and in the victim statement of one of them she has expressed her anxiety at the prospect of having to give evidence. Of course, both complainants had been cross‑examined at the committal and at the previous trial and one of your victims described that, as this: "The thought of giving evidence was at times much worse than any injury I suffered." So it must be taken into account that by your pleas they have been spared what can only have been a further ordeal for them.
31 In sentencing you, therefore, I take into account your pleas of guilty and give you a discount for them, although, of course, those pleas did come fairly late in the proceedings. I take into account also that by reason of your pleas you have saved the community the cost of a trial, the witnesses the ordeal of another trial and to that end you have facilitated the course of justice. I take into account also in your favour that your pleas of guilty represent a realistic assessment of your position, that is, that you have been in remand for three years and nine months and that that was to be weighed against the likelihood of your securing a complete acquittal or a jury verdict of guilty to the offences to which you have now pleaded.
32 Your counsel has submitted that you are remorseful for what you have done and in my view your pleas of guilty, in the face of a previous uncompleted trial, suggests that this may well be so.
33 In sentencing you, I take into account the matters personal to you including your inadequate health, your social phobia, and your abusive childhood. I take into account your pleas of guilty and give you a discount for them and the delay in bringing the matters to final resolution.
34 Against these matters, however, stand the nature and gravity of the offences here committed. These were very serious offences. They were each unprovoked. Your victims were two women, one of whom was barely known to you, that you had invited to your home. They were each assaulted over an extended period of time which resulted in the injuries which they sustained.
35 The attacks upon them was in every respect entirely unprovoked. The gravamen of your offending conduct is not to be minimised in any way. In sentencing you, however, I must, therefore, take into account also the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and further seek to specifically deter you from reoffending which previous dispositions have failed to do. Any sentence imposed must also serve to protect the community from you and signal to like‑minded members of the community that if they commit offences such as these they can expect condign punishment.
36 Accordingly, in respect of Count 1, intentionally causing serious injury, you are convicted and sentenced to four years' imprisonment; Count 2, intentionally causing serious injury, you are convicted and sentenced to six years' imprisonment.
37 Your counsel has submitted that these offences amount to a course of conduct. I do not accept that submission. Although the circumstances of the offences were similar in the sense that they each occurred in your home and the victim was known to you and each was injured during a frenzied attack, nonetheless they are each discrete offences occurring some two months apart and involving different victims. Therefore, partial cumulation is here appropriate.
38 Accordingly, I propose to order that two years of the sentence imposed on Count 1 be served cumulatively with the sentence imposed on Count 2; that is eight years' imprisonment. I propose to order that you serve a period of five years and nine months before becoming eligible for parole so as to address your prospects for rehabilitation and so as to advance the gains that you have made whilst being drug free in custody. I declare that you have already served by way of pre‑sentence detention a period of 1,338 days.
39 Pursuant to s.6AAA of the Sentencing Act, I am obliged to state the sentence I would otherwise impose but for the pleas of guilty. It is a difficult exercise in this case because you were originally presented on two counts of attempted murder and other offences. However, so as to act in conformity with the section, if you had not pleaded guilty to two counts of intentionally causing serious injury but had been found guilty by jury verdict of two counts of intentionally causing serious injury I would have imposed a sentence in the vicinity of 10 years' imprisonment with a non‑parole period of eight years. Of course, if the verdicts had been guilty to attempted murder the sentences would have been considerably higher.
Do you understand the sentence I have imposed upon you, Mr Zanatta?
PRISONER: Yes, Your Honour.
HER HONOUR: It is a sentence of eight years' imprisonment with a non‑parole period of five years and nine months of which the pre‑sentence detention is 1,338 days which means of the five years and nine months, you have already served three years and nine months plus the number of days since we were last before the court. Do you understand that?
PRISONER: Yes, Your Honour.
HER HONOUR: Very well, thank you.
Are there any other matters?
MR KISSANE: There was a disposal order, Your Honour, and I can't remember whether Your Honour signed that.
HER HONOUR: Yes, thank you, I have that. Yes, I have signed those, thank you.
MR KISSANE: Thank you, Your Honour. And Your Honour is required to note on the record that the prisoner is sentenced as a serious violent offender under s.6E, I think, or 6F ‑ 6F, I think it is, Your Honour.
HER HONOUR: Yes, very well. Did that affect any other sentencing considerations?
MR KISSANE: Well, it applied to both counts, Your Honour, and it only affected the issue of cumulation, which Your Honour has ordered.
HER HONOUR: Yes, very well.
MR KISSANE: Yes.
HER HONOUR: What section is that in respect of? That's s.6E?
MR KISSANE: 6F is the noting on the records.
HER HONOUR: But cumulation is 6E.
MR KISSANE: Cumulation is 6E, yes, Your Honour and it's unless otherwise directed by the court.
HER HONOUR: Only that I would express it as "otherwise directed" as distinct with being ordered in conformity with the section.
I also have noted in the records of the court that the prisoner is to be sentenced as a serious violent offender and that the orders for cumulation were otherwise directed pursuant to s.6E of the Sentencing Act.
---
2
0
0