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Mazzitelli v The Queen

Mazzitelli v The Queen

Case [2002] NSWCCA 436 31 October 2002

Criminal Liability

Mens Rea & Intention

Role in Criminal Enterprise

Criminal Law

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Reported Decision:
(2002) 135 A Crim R 132

New South Wales

Court of Criminal Appeal

CITATION: Mazzitelli v Regina [2002] NSWCCA 436

FILE NUMBER(S): CCA 60809/01

HEARING DATE(S): 13/06/02

JUDGMENT DATE:
31 October 2002

PARTIES :

Michele Mazzitelli
Regina

JUDGMENT OF: Spigelman CJ at 1; O'Keefe J at 2; Simpson J at 78

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER :

COUNSEL : Appellant - Mr M Thangaraj
Crown - Mr M Allnutt - DPP (Cth)

SOLICITORS: Appellant - Mr Mark Rumore
Crown - Ms Yasmine Swifte - DPP (Cth)

CATCHWORDS: Criminal law - Importation of cocaine - Commercial quantity - Circumstantial and other evidence - Direction - Unreliability warning - No unfairness of summing up - Character evidence on behalf of accused - Reference by trial judge - Severity appeal - Role of accused in criminal enterprise - Not a mere courier - Not a principal - Played major role - Substantial sentence called for.

LEGISLATION CITED: Customs Act 1901 (Cth), s.233B(1)(d), s.235(2)(c)
Telecommunications (Interception) Act 1979
Evidence Act 1995, s.165(1)(2)
Crimes Act 1914 (Cth) , ss.16A(1),(2), 16G

CASES CITED:
Regina v Clarke (1995) 78 A Crim R 226
Shepherd v The Queen (1990) 170 CLR 573
Chamberlain v The Queen (No. 2) (1984) 153 CLR 521
Regina v Camilleri (2001) NSWCCA 527
DPP (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370
Regina v Paull (1990) 20 NSWLR 427
Regina v Olbrich (1999) 199 CLR 270
Regina v Behar (NSWCCA, 14 October 1998, unreported)
Muanchukingkan v Regina (1990) 52 A Crim R 354
Regina v Laurentiu (NSWCCA, 1 October 1992, unreported)
Regina v Saxon (1986) 86 A Crim R 353

DECISION: (i) Appeal against conviction dismissed; (ii) Leave to appeal against sentence granted; (iii) Appeal against sentence dismissed.

- 28 -IN THE COURT OF

60809/01

SPIGELMAN CJ
O’KEEFE J
SIMPSON J
Date : 31 October 2002

MICHELE MAZZITELLI v REGINA

Judgment

1 SPIGELMAN CJ: I agree with O’Keefe J.

2 O’KEEFE J:

INTRODUCTION

3 Michele Mazzitelli (the appellant) was convicted on 17 October 2001 on a charge of being knowingly concerned in the importation into Australia of not less than a commercial quantity of a prohibited import, namely, cocaine, contrary to the provisions of s 233B(1)(d) of the Customs Act 1901 (Cth). The gross quantity involved was 28.174 kilograms which yielded 17.4927 kilograms of pure cocaine. A commercial quantity of cocaine is 2 kilograms. The estimated street value of the cocaine imported was $7 million. The maximum penalty for the offence is imprisonment for life or a fine not exceeding $750,000, or both (s 235(2)(c)).

4 On 20 November 2001 Judge McGuire of the District Court (the Trial Judge) sentenced the appellant to imprisonment for 19 years and 8 months with a non-parole period of 12 years and 4 months. The sentence was fixed to commence on 12 May 2000, the date on which the appellant was taken into custody, and to expire on 11 January…

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 Mazzitelli v The Queen

Details

AGLC: Mazzitelli v The Queen [2002] NSWCCA 436
Case: [2002] NSWCCA 436
Decision Date: 31 October 2002

CaseChat Overview and Summary

In the case of Mazzitelli v The Queen, the appellant faced charges for the importation of cocaine in commercial quantities. The High Court of Australia was tasked with reviewing the decision made by the trial judge, which included the handling of circumstantial evidence and the direction given to the jury. The appeal centred around whether the summing up of the trial was fair and whether the trial judge erred in giving an unreliability warning and allowing character evidence. Additionally, the severity of the sentence was contested, arguing that the appellant was not a principal but rather played a significant role in the criminal enterprise.

The court examined whether the trial judge's summing up was fair, considering the complexity of the evidence presented. The judge had directed the jury on the reliability of circumstantial evidence and issued an unreliability warning. The court also assessed whether the trial judge should have referenced character evidence presented on behalf of the accused. Furthermore, the appeal questioned whether the sentence imposed was excessive given the appellant's role in the importation scheme.

The High Court concluded that the trial judge's summing up was fair and did not result in unfairness to the appellant. The unreliability warning was deemed appropriate in light of the evidence, and the trial judge's decision to reference character evidence was upheld as correct. The court also determined that the sentence was appropriate, considering the significant role the appellant played in the criminal enterprise. The court found that the appellant was not a mere courier but was deeply involved, justifying the substantial sentence imposed.

Orders