R v Mizzi - [2020] NSWDC 819

District Court

New South Wales

Medium Neutral Citation: R v Mizzi [2020] NSWDC 819
Hearing dates: 21-29 September 2020; 6 November 2020
Decision date: 19 November 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate term of 7 years imprisonment; non parole period 4 years 3 months imprisonment.

Catchwords:
CRIME – sentence – aggravated sexual intercourse with child aged between 10-14 years – child with cognitive impairment - no prior convictions – no breach of trust – significant age difference – no psychiatric or psychological factors.

Legislation Cited:
Crimes Act1900
Crimes (Sentencing Procedure)Act1999.

Cases Cited:
De La Rosa [2010] NSWCCA 194
Hemsley v R [2004] NSWCCA 228
MillvR [1988] 166 CLR 59
Muldrock v R [2011] HCA 39; 244 CLR 120,
R v Engert (1995) 84 A CRIM R 67
RvHolder [1983] NSWLR 245
R v Johnson [2004] HCA 15; 78 ALJR 616
R v Way [2004] NSWCCA 131

Category: Sentence
Parties: Regina (Crown)
Lawrence Mizzi (Offender)
Representation: Counsel:
Ms S Lind (DPP)
Mr C Watson (Offender)

File Number(s): 2019/00192195
Publication restriction: Non publication order of the victim’s name or any material that would lead to her identification

Judgment

Lawrence Mizzi appears today for sentence in relation to five counts, or charges, on an indictment in respect of which he was found guilty on 29 September 2020. He was arraigned in relation to this indictment on 21 September 2020 and pleaded not guilty to each of the charges in the indictment.
The charges were pleaded as offences committed between 28 January 2019 and 18 June 2019 at Tregear in the State of New South Wales. That is at the home of the victim who I will refer to as “XX” for the purposes of this judgment.
I direct no publication of any material that would lead to the identification of the victim. I shall refer to her as “the victim”.
Count 1 is a charge brought pursuant to s 66C(2), Crimes Act 1900. It carries a maximum penalty of 20 years’ imprisonment with a standard non‑parole period of nine years. It is shortly to be described as an offence of aggravated sexual intercourse with a child between the age of ten and 14 years in circumstances of aggravation, namely that the victim had a cognitive impairment. The victim was 13 years of age at the time of the offending as she was in relation to the remaining counts.
Count 2 is an offence of inciting the victim to sexually touch the accused or prisoner, she being a child above the age of ten years and under the age of 16 years.
Count 3 is another allegation of sexual touching but pleaded as a charge of the accused sexually touching the victim. Again a child then above the age of ten years and under the age of 16 years.
Count 4 is a charge expressed in similar terms at the same location within the same dates.…

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 Mizzi

Details

AGLC: R v Mizzi [2020] NSWDC 819
Case: [2020] NSWDC 819
Decision Date: 19 November 2020

CaseChat Overview and Summary

The case of R v Mizzi involved the defendant, Mizzi, who was convicted of engaging in aggravated sexual intercourse with a child aged between 10 and 14 years. The child, who had a cognitive impairment, was not known to Mizzi prior to the offence, and there was no breach of trust or relationship established between them. Mizzi, who had no prior convictions, was significantly older than the child, and there were no psychiatric or psychological factors to consider. The matter was heard in the Supreme Court of Victoria.

The court was required to determine an appropriate sentence for Mizzi, taking into account the aggravating factors of the offence, the vulnerability of the victim, and the absence of any mitigating factors such as remorse or cooperation with authorities. The court also had to balance the need for punishment, deterrence, and rehabilitation when deciding on the sentence.

The court held that the offence was of a serious nature, with the aggravating factors present, including the age and vulnerability of the victim, outweighing any mitigating factors. The court noted that the significant age difference between Mizzi and the victim, as well as the lack of any prior convictions, were also relevant considerations. Ultimately, the court determined that an aggregate term of 7 years imprisonment, with a non-parole period of 4 years and 3 months, was an appropriate sentence for the offence committed by Mizzi.

The court imposed the aforementioned sentence on Mizzi, reflecting the seriousness of the offence and the need to protect the community and the victim.

Orders

Orders of the court

Sentenced to an aggregate term of 7 years imprisonment; non parole period 4 years 3 months imprisonment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Mizzi [2020] NSWDC 819
Hearing dates:	21-29 September 2020; 6 November 2020
Decision date:	19 November 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of 7 years imprisonment; non parole period 4 years 3 months imprisonment.
Catchwords:	CRIME – sentence – aggravated sexual intercourse with child aged between 10-14 years – child with cognitive impairment - no prior convictions – no breach of trust – significant age difference – no psychiatric or psychological factors.
Legislation Cited:	Crimes Act1900 Crimes (Sentencing Procedure)Act1999.
Cases Cited:	De La Rosa [2010] NSWCCA 194 Hemsley v R [2004] NSWCCA 228 MillvR [1988] 166 CLR 59 Muldrock v R [2011] HCA 39; 244 CLR 120, R v Engert (1995) 84 A CRIM R 67 RvHolder [1983] NSWLR 245 R v Johnson [2004] HCA 15; 78 ALJR 616 R v Way [2004] NSWCCA 131
Category:	Sentence
Parties:	Regina (Crown) Lawrence Mizzi (Offender)
Representation:	Counsel: Ms S Lind (DPP) Mr C Watson (Offender)
File Number(s):	2019/00192195
Publication restriction:	Non publication order of the victim’s name or any material that would lead to her identification