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R v Mezzadri

R v Mezzadri

Case [2011] NSWCCA 125 6 July 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Achilles MEZZADRI [2011] NSWCCA 125
Hearing dates: 2 March 2011
Decision date: 06 July 2011
Before: Hodgson JA at [1]
Adams J at [6]
Hall J at [39]
Decision:
Appeal dismissed.

Catchwords: Sentence appeal - firearm offences - relevance of reasons for possession of firearms - significance of inoperability - whether more extensive reasons are required for departing from standard non-parole period than for other discretionary decisions
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Firearms and Dangerous Weapons Act 1973
Cases Cited: Basedow [2010] NSWCCA 76
Cromarty [2004] NSWCCA 54; 144 A Crim R 515
El-Chammas v R [2009] NSWCCA 154
R v Miria [2009] NSWCCA 68
R v Tory and Tory (2006) NSWCCA 18
R v Wong & Leung (1999) 48 NSWLR 340
R v Zamagias [2002] NSWCCA 17
Thurgar (unreported, NSWCCA 17 December 1990)
Veen v The Queen (No 2) (1987-8) 164 CLR 465
Category: Principal judgment
Parties: Regina (Applicant)
Achilles Mezzadri (Respondent)
Representation: Counsel
J. Pickering (Applicant)
T. Gartelmann (Respondent)
Solicitors
Solicitor for Public Prosecutions (Applicant)
Bruce J Peters Criminal Lawyers (Respondent)

File Number(s): 2009/286828
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-10-28 00:00:00

Before:

Williams DCJ

File Number(s):

2009/286828

Judgment

HODGSON JA : I agree with the order proposed by Adams J and, subject to what I say below, I agree substantially with his reasons.

The sentencing judge's statement that the "objective evidence for the vague concept of general deterrence being in any way effective is sadly lacking" does, in my opinion, strongly suggest that he gave insufficient weight to this consideration. This would not of itself mean that the Crown appeal must be allowed, but it would at least lead this Court to give less weight to the sentencing judge's view as to the adequacy of the sentence.

The case of Basedow [2010] NSWCCA 76 was a pertinent case; but there are significant differences from this one. The offender in that case had a previous conviction for unauthorised possession of firearms, so that his current offending could be seen as showing greater disrespect for and defiance of the law than that of this respondent; there was no finding in that case, as in this, that the offender was "highly unlikely to re-offend"; and there was no finding in that case, as in this, that the weapons were not in working order when seized.

Because of those differences from this case, in my opinion it is not necessary to express a final view as to whether the sentence in Basedow of 3 years with a non-parole period of 2 years was severe, as Hidden J considered it to be, or very lenient, as McClellan CJ and Simpson J considered it to be; although I am inclined to the view that it was indeed lenient.

In my opinion, the sentence in the present case was certainly lenient, but (although near the borderline) it was not manifestly…

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 Mezzadri

Details

AGLC: R v Mezzadri [2011] NSWCCA 125
Case: [2011] NSWCCA 125
Decision Date: 06 July 2011

CaseChat Overview and Summary

In the case of R v Mezzadri, the appellant was convicted of various firearm offences and was sentenced to a term of imprisonment. The appellant appealed against the severity of the sentence imposed, arguing that the reasons provided for departing from the standard non-parole period were insufficient. The appeal was heard by the Court of Criminal Appeal in New South Wales, where the primary legal issue was the adequacy of the reasons provided by the trial judge for departing from the standard non-parole period. The court was required to determine whether the trial judge provided sufficient reasons for extending the non-parole period beyond the standard, and whether the reasons provided were more extensive than those required for other discretionary decisions.

The Court of Criminal Appeal held that the trial judge's reasons for departing from the standard non-parole period were insufficient. The court found that the reasons provided did not adequately address the specific factors that warranted an extended non-parole period in this case, particularly in relation to the reasons for the possession of the firearms and the significance of their inoperability. The court held that the reasons provided were not more extensive than those required for other discretionary decisions, and that the trial judge had failed to provide a clear and comprehensive explanation for the extended non-parole period. The appeal was allowed, and the case was remitted to the District Court for re-sentencing.

The Court of Criminal Appeal further held that the reasons provided by the trial judge were insufficient to justify the extended non-parole period imposed. The court found that the reasons did not adequately address the specific circumstances of the case, and that the trial judge had not provided a clear and comprehensive explanation for the extended non-parole period. The court held that the reasons provided were not more extensive than those required for other discretionary decisions, and that the trial judge had failed to adequately consider the specific factors that warranted an extended non-parole period in this case.

The final orders of the Court of Criminal Appeal were that the appeal be allowed, the conviction be upheld, and the case be remitted to the District Court for re-sentencing. The court held that the reasons provided by the trial judge for departing from the standard non-parole period were insufficient, and that the trial judge had failed to provide a clear and comprehensive explanation for the extended non-parole period imposed. The court further held that the reasons provided were not more extensive than those required for other discretionary decisions, and that the case should be remitted to the District Court for re-sentencing in light of the court's findings.

Orders