R v Penza and DiMaria - [2010] NSWSC 16

CITATION: R v Penza and DiMaria [2010] NSWSC 16
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6,7, 8, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 27, 28, 29, 30, July; 4th September, 23 and 27 November 2009; 21 January, 2010

JUDGMENT DATE :
29 January 2010

JUDGMENT OF: Latham J

DECISION: Franco Penza - convicted of the murder of Christian Minotte. Sentenced to a non parole period of 13 years to date from 27 July 2007, expiring 26 July 2020, with a balance of term of five years, expiring 26 July 2025. You are eligible for release on 27 July 2020.
Joshua DiMaria - convicted of the murder of Christian Minotte. Sentenced to a non parole period of 13 years to date from 24 August 2007, expiring 23 August 2020, with a balance of term of five years expiring 23 August 2025. You are eligible for release on 24 August 2020.
Pursuant to s 167 of the Criminal Procedure Act 1986 Joshua DiMaria convicted of the following offences and the following sentences imposed:-
On each of three counts of Goods in Custody under s 527C(1)(a) of the Crimes Act 1900, I impose a sentence of 3 months imprisonment to date from 24 August 2007. On each of two counts of Use Instrument under s 300(2) of the Crimes Act 1900, I impose a fixed term of 2 years imprisonment to date from 24 August 2007. On one count of Knowingly make a false statement under s 307B of the Crimes Act 1900, I impose a sentence of 9 months imprisonment to date from 24 August 2007.

CATCHWORDS: CRIMINAL LAW - sentence after trial - felony murder - objective gravity assessed below mid range - victim shot at close range in the course of robbery - significant subjective circumstances suggesting that drug addiction was not a matter of personal choice - special circumstances.

CATEGORY: Sentence

CASES CITED: R v J B and R J H (1999) NSWCCA 93
Aslett v R [2006] NSWCCA 360
R v Smale [2005] NSWSC 903
R v Nguyen [2007] NSWSC 389
R v Silvano [2006] NSWSC 832
R v BH [2009] NSWSC 358
R v Henry & Ors. [1999] NSWCCA 111

PARTIES: Regina - Crown
Franco Penza - Offender
Joshua diMaria - Offender

FILE NUMBER(S): SC 2008/20054; 2008/20055

COUNSEL: Regina - J Pickering
Penza - G Brady
DiMaria - S Hanley

SOLICITORS: Regina - S Kavanagh Solicitor for Public Prosecutions
Penza - Benjamin & Leonardo Criminal Defence Laywers
DiMaria - Hardinlaw

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

29 JANUARY 2010

2008/20054 R v FRANCO PENZA
2008/20055 R v JOSHUA DIMARIA
SENTENCE

1 HER HONOUR : Franco Penza and Joshua DiMaria were found guilty by a jury on 30 July 2009 of the murder of Christian Minotte on 17 April 2006. The trial was conducted by the Crown on the basis that the offenders…

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 Penza and DiMaria

Details

AGLC: R v Penza and DiMaria [2010] NSWSC 16
Case: [2010] NSWSC 16
Decision Date: 29 JANUARY 2010

CaseChat Overview and Summary

The case of R v Penza and DiMaria involved two defendants who were convicted of felony murder following a trial. The defendants were involved in a robbery during which the victim was shot at close range. The court was tasked with determining an appropriate sentence for the defendants. The primary legal issue before the court was to assess the objective gravity of the crime and decide whether any special circumstances should be considered in sentencing.

The court considered the objective gravity of the crime, which involved the intentional killing of a person during the commission of a robbery. The court acknowledged that the act of shooting the victim at close range was a serious offense, warranting a significant penalty. However, the court also took into account the subjective circumstances of the case, including the significant role that drug addiction played in the defendants' actions. The court found that drug addiction was not a matter of personal choice for the defendants, which was a mitigating factor in their sentencing. The court also considered other special circumstances that could influence the sentence, such as the potential for rehabilitation and the impact on the victims' families.

After considering the objective gravity and special circumstances, the court determined that the appropriate sentence for the defendants would be assessed below the mid-range. This decision reflects a balanced approach that recognises the seriousness of the crime while also taking into account the mitigating factors present in the case. The court's reasoning and outcome ensure that justice is served in a manner that is proportionate to the crime committed and the individual circumstances of the defendants. The final orders of the court reflect this balanced approach, providing a sentence that is both fair and just in the context of the case.

Orders