R v Mazzilli

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Mazzilli [2001] NSWCCA 177

FILE NUMBER(S):
60355/00

HEARING DATE(S): 9.5.01

JUDGMENT DATE: 09/05/2001

PARTIES:
Regina
Maximillian Mazzilli

JUDGMENT OF: Carruthers AJ Badgery-Parker AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/0191
98/11/0740

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
L M B Lamprati (Crown)
P Stratton (Applicant)

SOLICITORS:
S E O'Connor (Crown)

CATCHWORDS:
Sentencing - appeal against severity - drug and firearm offences - whether Judge took into account the appellant's youth as a matter relevant to the interplay between general deterrence and rehabilitation - whether Judge applied principle of totality.

LEGISLATION CITED:
Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Drug Misuse and Trafficking Act 1985

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

- 13 -

CARRUTHERS AJ: Maximillian Mazzilli seeks leave to
appeal against sentences imposed upon him by his Honour Judge Woods QC at the Sydney District Court on 5 June 2000. The applicant had earlier pleaded guilty to an indictment containing one count of firing a firearm in a manner likely to endanger the safety of any other person, pursuant to s 93G(1)(c) of the Crimes Act 1900 (hereinafter referred as "the Act"). This offence carries a maximum penalty of imprisonment for ten years.
He had also pleaded guilty to a second indictment containing one count of supply a prohibited drug; namely, methylendioxymethylamphetamine (Ecstasy) pursuant to sections 25(1) and 29 of the Drug Misuse and Trafficking Act 1985. This offence carries a maximum penalty of imprisonment for fifteen years and/or a fine of 2000 penalty units. In relation to this offence, a Form 1, containing one count of possession of cannabis leaf, was to be taken into account.
The third indictment also contained two counts of discharging loaded arms with intent to do grievous bodily harm, pursuant to s33A of the Act. The applicant pleaded not guilty to these two counts, but guilty to two alternative counts of firing a firearm in a public place pursuant to s 93G(1)(b) of the Act. This offence carries a maximum penalty of imprisonment for ten years. The Crown accepted the pleas to the lesser counts in full satisfaction of the indictment.
In relation to the s 93G(1)(c) offence, his Honour sentenced the applicant to a fixed term of imprisonment for one year and six months, to commence on 21 April 1999 and to expire on 20 October 2000. In relation to the supply of prohibited drug offence, his Honour sentenced the applicant to imprisonment for a fixed term of one year, to commence on 21 October 2000 and to expire on 20 October 2001.
On each of the s 93G(1)(b) offences, his Honour sentenced the applicant to imprisonment for four years and six months, to commence on 21 October 2001 and to expire on 20 April 2006, with a non parole period of two years, to commence on 20 October 2003.
The s 93G(1)(c)offence and the supply of a prohibited drug offence, (as well as the Form 1 matter) were each committed on 21 February 1999, when the applicant was aged 18. The s 93G(1)(b) offences were committed on 9 September 1997, when he was aged 17.
The applicant is the elder in a family of two sons. His parents were born in Italy and apparently sought to provide him with a stable and supportive environment. However, as from a relatively early age he demonstrated violent and disruptive behaviour which resulted in school changes and attendance at various schools for behaviourally disturbed children.
Interestingly, he was a gifted soccer goal keeper and represented Australia at junior level. However, regrettably, in March 1997 he was the victim of a hit and run motor vehicle accident which, according to some medical evidence, resulted in a degree of brain damage.
Originally he was apprenticed as an electrician and later a mechanic. At the time of the accident he was working as a welder and, it would appear, working casually week nights and weekends delivering pizzas in his uncle's business.
There is medical evidence that the applicant's behavioural problems are associated with an attention deficit hyperactivity disorder. Medication has not been able to assist him in this regard.
He has a history of drug abuse up until the time of his incarceration for the current offences. He was examined by Ms Elizabeth Kusch, psychologist, on 12 April 2000. Psychometric tests placed his composite IQ score in the average range. However, there was a marked difference between his verbal and non verbal results on this test; his verbal skills falling in the well below average range, whilst his non verbal functioning is in the lower end of the above average range.
Ms Kusch expressed the view that it is possible that the changes in the applicant's behaviour following the accident were a result of his depressed state and the trauma of the accident. When examined by her the applicant demonstrated indications of depression. She said that he expressed regret and remorse over his offending behaviour. She thought that he had sought to come to terms with his drug abuse and offending behaviour.
The evidence before his Honour demonstrated a litany of serious criminal behaviour which presented his Honour with no alternative but to impose substantial custodial sentences, despite the relevant youth of the applicant.
I gratefully adopt, in so far as the recitation of the relevant facts are concerned, the summary prepared by Mr A P Cook of counsel, who was then representing the applicant. It should be noted that the matters as they are summarised by Mr Cook are not in chronological order but rather in the order in which the judge dealt with them:
“1. Discharge firearm in a manner likely to endanger the safety of any person on 21.4.99. (Per s93G(1)(c) Crimes Act). Supply prohibited drug.
The essential facts of this matter were that the applicant was firing a rifle out of a window of his family home in Belfield at about 2.20 pm. He was apparently firing at metal cans or birds. (See the terms of a handwritten note provided by the applicantfor the purposes of sentence).
A bullet penetrated a neighbour’s kitchen at a time when she was in that room preparing food. (See statement of Hilda McKay 6.5.99).
A friend of the applicant’s (Joseph Mansour) told police (per statement 21.4.99) that the applicant asked him to put a can on a brick ledge near the back fence. He saw the applicant at a rear window of the house holding a rifle.
Police were called. The house was searched and two firearms were found. Also located was a quantity of methlyenedioxymethylamphetamine (“ecstasy”) comprising some 60 separately packaged tablets. This formed the basis of a charge of supply prohibited drug, based on possession of an amount in excess of the trafficable quantity. In addition to the drugs there was found some cash, Tanita electronic scales and a piece of paper with names and amounts of money written on it.
At the time of his arrest on the above charges, 21.4.99, the applicant was on bail for, inter alia, earlier offences which will be described below, for which he was also sentenced by Woods DCJ on 5.6.2000. He was also subject to a good behaviour bond imposed by the District Court on 7.12.1998. The offence for which he was placed on that bond had been committed on 28.1.97 and involved the applicant assaulting a person. The assault had been triggered by some interaction whilst driving (see the Remarks on Sentence of Woods DCJ at pp 13-14).
The applicant pleaded guilty to the above mentioned firearms charge on 22.10.99. On 7.2.2000 he pleaded guilty to the drug supply matter.
2. The other set of charges dealt with by Woods DCJ were committed earlier in time. These were two offences committed on 9.9.97. They were offences of firing a firearm in a public place - per s93G(1)(b) Crimes Act. These offences were the most serious of those committed. The following summary is drawn from the “Statement of facts” prepared by the informant.
‘About 9.30 pm on Tuesday 9th September 1997 the young person was situated as the driver in a red Celica in the car park of Civic Video, Norton Street Leichhardt. Also present in this vehicle were three other persons, the young person and his passengers then became involved in an altercation with other persons present in the car park. This altercation consisted of punches being exchanged between the young person, his front seat passenger and members of the other group. As a result the front seat passenger received minor facial injuries and the young person and his passengers left the area. The other members involved in this altercation moved their position to outside the Leichhardt Town Hall near the intersection of Marion and Norton Streets. These persons were seated in two vehicles, one being a Charade contained five persons, the other a BMW contained four. These vehicles were stationary upon Norton Street facing Parramatta Road when the occupants noticed the same red Celica from the previous altercation driving south to north upon Norton Street towards them. They then observed the passenger of that vehicle level a double barrelled shot gun through the drivers window and aim. This firearm was then discharged with the shot striking the front driver’s door of the Charade which contained five persons. A second shot was then fired from the Celica at the BMW striking it on the front driver’s side guard. Again the shooter was seen to take aim and fired deliberately at the BMW then left at high speed.’
At the time of the two firearm offences referred to he was just 17 years old. (DOB 3.9.1989). He was also, at the time, on bail for the assault, with a baseball bat, offence referred to earlier.
He pleaded guilty to the Leichhardt matters on 28.2.2000.
The following is a further description of the events given by the applicant’s girlfriend at the time. Woods DCJ quoted extensively from her statement (13.9.99).
‘On 9 September 1997 during the evening I was out with my then boyfriend Max Mazzilli. We were driving around in Max’s Celica. Also with us was another couple. I wanted some ice cream so we drove to a gelato shop in Norton Street at Leichhardt as you can get the ice cream from Bar Italia.
Max drove into the car park of Civic Video. The other girls and I went into Bar Italia and bought some ice cream, leaving Max and the other man in the car. The other girl and I hopped back in the car, both of us hopping in the back seat. Max and the other man were in the front with Max driving. Max started to drive out of the car park when there was a verbal altercation between Max and the other man and some people that were standing in the car park. Max then drove off and went straight to his grandmother’s house in the street opposite Civic Video off Norton Street, that is, Macauley Street.
Max had become overwhelmed with anger and was not responsive to conversation. He pulled into his grandmother’s driveway and said “wait in the car”. Max then left the car and went straight to the garage which was at the end of the driveway and is separate from the house. He was not in there long and he then came back out to the car. I saw that he was carrying two shotguns. He put them in the car around the centre console. I spoke with him about what he was going to do with the guns. He was unresponsive but I thought he was going to scare the people he had argued with. We then drove straight back up the street to the car park at Civic Video but the people were no longer there. Max then became angrier and drove up Norton Street towards Marion Street but turned right in the street where the Leichhardt Police Station was, that is to say Carlisle Street, went around the block onto Marion Street and then back into Norton Street.
As we turned into Norton Street I saw the people who had argued with Max standing on the side of the road on our right. Max pulled on the side of the road on our right. Max pulled up and the front seat passenger had one of the guns and he positioned himself out the passenger side window while Max pointed the other gun out the driver’s window. The guns were pointed towards these people and I then heard two shots and Max then accelerated very quickly and he turned off back to his grandmother’s house and he took the guns back into garage. When he got out of the car he said something about the roof of his car being shot. After he put the guns back into the garage he has driven onto Flood Street and then drove me to my house and dropped the other girl and I off. He then said not to call him for a couple of days, I will call you’.”
The applicant's prior criminal record commenced when he was sixteen years of age. Thereafter he was constantly before the Children's Court or the Local Court or, by December 1998, the Sydney District Court, on driving offences. However, his prior record is not restricted to driving offences. It also includes malicious damage to property, assault an officer in the execution of duty and resist an officer in the execution of duty, goods in custody, assault occasioning actual bodily harm and larceny.
It should be noted, however, that a number of these offences post date the two s 93G(1)(b) offences.
The applicant was refused bail when he was arrested on 12 April 1999 in relation to the drug matters.
When the matter came before his Honour for sentence on 5 May 2000, Mr Green for the Crown informed his Honour that the applicant had been in custody since 12 April 1999, and having served a sentence of six months from 21 April 1999 to 20 October 1999 he was thereafter on remand, in relation to the subject drug matters.
The overall sentence of six months to which I have referred, was imposed at the Burwood Local Court in relation to three driving and one of possessing housebreaking implements and one of goods in custody. These are all matters which have no bearing whatsoever on the subject offences.
There was certainly evidence before the sentencing judge that at least the possibility existed that the applicant had sustained some brain damage as a result of the motor vehicle accident to which I have referred. However, there was also a concession by the applicant's counsel that the applicant had an MRI scan in 1998 which disclosed no abnormalities.
All the subject offences were committed in aggravating circumstances in that at all relevant times the applicant was in a position of conditional liberty. Realistically, the applicant does not complain that the sentencing judge dealt with the matters according to law, rather than in accordance with the sentencing regime available under the Children (Criminal Proceedings) Act 1987: see R v WKR (1993) 32 NSWLR 447.
Counsel for the applicant submitted that the sentencing Judge's approach was flawed in relation to significance to be attached to the applicant's youth. It was argued that although his Honour's remarks strongly emphasised the criminality of the applicant's conduct, nowhere did his Honour deal with the question of youth as a matter relevant to the interplay between general deterrence and rehabilitation.
It is, of course, well established that in sentencing young people the consideration of general deterrence is not as important as in the case of sentencing an adult: see R v C,S & T (Unreported, NSWCCA 12 October 1989), in which Gleeson CJ said:
"In sentencing young people the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed."
So one turns then to what his Honour in fact did say in his detailed remarks on sentence relevantly, his Honour said:
"Firstly, there is the plea of guilty which has a significant mitigating effect indicating contrition and assisting in the ordinary administration of justice.
Secondly, there is the matter of his youth, which is a most important concern. One sentences young men to imprisonment with a heavy heart, and only when no realistic alternative appears available, and this is such a case".
It is important to note that, at a later stage in his Honour’s remarks on sentence Mr Brennan, then appearing for the applicant, said:
“Perhaps I should say one thing, your Honour. The only factor you haven’t mentioned, not to say you’re not aware of it, is that there’s less emphasis on general deterrence given his age and that would remain the case even though he’s not being sentenced as a juvenile.”
His Honour replied:
"Yes. I should mention it in consideration of rehabilitation.
I intend to sentence on the basis that there are special circumstances in this case justifying a disparity between the head sentence and the non-parole period greater than normal. His youth is a particular concern. As the reports indicate he requires, and is going to require, considerable counselling and assistance when he gets out of gaol, and the need for counselling and his youth certainly justifies some variation of the usual relationship.”

It is perfectly true that his Honour did not specifically refer to the interplay between youth and general deterrence and the ameliorating effect that that can have upon sentence.
I am completely unable to accept, reading his Honour's remarks on sentence as a whole, and considering the sentencing regime which his Honour imposed, together with his Honour's vast experience both as a trial Judge and a senior public defender for many years, that he overlooked this well known principle as crystallised in R v C,S & T. I would reject this argument.
An argument which has been just recently embraced is concerned with another matter. It is submitted that in the sentencing regime imposed by his Honour, he overlooked the application of the principles enunciated by the High Court in R v Pearce (1998) 194 CLR 610 at 623 to 624 where McHugh, Hayne and Callinan JJ, (with whom Gummow J agreed), said:
"To the offender the only relevant question may be 'how long’ and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality."

In sentencing the applicant, his Honour said: -

"In this case I should say that I have given thought to each of the individual sentences which I intend to impose before I have approached the question of accumulation or concurrency."

And later: -

“The overall effect of these sentences which date from 21 April 1999 is that the offender must remain in custody until 20 October 2003 after which he will be eligible to be considered for parole. If he is granted parole it will be sometime after that date, either on that date or after that date, but he may be detained in custody no longer than 20 April 2005. That is the maximum limit of these sentences.”

His Honour made an error in that the last mentioned date and the figure should have been 20 April 2006 and counsel drew his attention to that matter. His Honour then concluded with the following passage:
"In each sentence three and sentence four, a sentence of imprisonment for four and a half years to date from the expiration of sentence two and to expire on 20 April 2006 in each case. The non-parole period remains the same in each case, of two years to date from the commencement of the sentence and to expire on 20 October 2003. The overall effect of these sentences, of course, is that there is an overall head sentence of seven years and a non-parole period of four years."
It would clearly appear that his Honour made a slip of the tongue, referring to a non parole period of four years, because the sentences that his Honour imposed contained a non parole period of four years and six months dating back to 21 April 1999. The effect of this back dating was that the applicant was to serve the first six months for the subject offences concurrently with the six months imposed by the Local Court, to which I have referred.

In this context Mr Stratton of counsel, who appeared for the applicant before this Court, submitted that his Honour failed to direct his mind to the question of totality, which, as the High Court made clear in Pearce is an essential element of the sentencing exercise where there are a number of offences.
It is submitted that the Judge must, first fix an appropriate sentence for each offence (stage one), then consider questions of accumulation or concurrence (stage two) and then as well address “questions of totality” (stage three). It is said that the sentencing Judge in the instant case undertook the first two stages of this exercise, but omitted the third stage. Nowhere, it is emphasised, can one find in the remarks on sentence any reference to the word totality.
It is true that his Honour did not use the word totality, but it is manifestly clear from the sentences which his Honour imposed and what he in fact said, that he did consider not only the first two stages, but the third and final stage of totality. That is manifestly clear, in my opinion, from the backdating to 21 April 1999, and the reference twice in the remarks on sentence to the phrase, "The overall effect of the sentences".
His Honour was, in my view - as an extremely experienced Judge - concerned to ensure that the totality of the sentences complied with the principles enunciated in Pearce and were appropriate to the overall criminality involved without imposing double counting upon the applicant. I would, likewise, reject this argument.
For the reasons which I have given, I would propose that in the circumstances leave be granted to the applicant to appeal against sentence but I would propose that the appeal be dismissed.
BADGERY-PARKER AJ: I agree.
CARRUTHERS AJ: The orders will, therefore, be as I have proposed.

LAST UPDATED: 17/05/2001

[2001] NSWCCA 177

9 May 2001