R v Penza and DiMaria

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.

R v J B and R J H (1999) NSWCCA 93 Aslett v R [2006] NSWCCA 360 R v Smale [2005] NSWSC 903 CASES CITED : 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

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

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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 went to the home of the victim, armed with a firearm, with the intention of stealing drugs and/or money concealed in a wall cavity in the laundry of the premises. At some stage, they were confronted by the victim and a struggle took place, culminating in the discharge of the firearm into the head of the victim at close range. The Crown maintained that, the discharge of the firearm in the course of carrying out either a joint criminal enterprise to break enter and steal whilst armed, or a joint criminal enterprise to rob whilst armed, was accompanied by an intention to kill or inflict grievous bodily harm on the victim, or that the discharge of the firearm was contemplated by the offenders as a possible incident of the commission of either of the relevant felonies. 2 The Crown now accepts that the appropriate basis upon which the offenders should be sentenced is the latter, that is, felony murder. In these circumstances, the objectivity gravity of the offence falls to be assessed absent an intention to kill or inflict really serious injury. This factor alone is not determinative of whether the offence should be characterised as below, at, or above the mid range of objective gravity. It is relevant however to note that, since the introduction of the standard non parole period for this offence on 1 February 2003, there have been no instances of felony murder (as far as my research has been able to find) that have attracted that term. I return to this issue below. 3 The defence depended principally upon the evidence of Mr DiMaria, in that it was asserted that both offenders went to the premises unarmed, that they knocked on the front door, and called out from the back veranda of the house next door in an effort to ensure that the victim was not home. They had formed the intention to steal drugs (cocaine) from the wall cavity in the laundry. They began to demolish the wall to gain access to the drugs when they were confronted by the victim, who was armed. The victim and Mr DiMaria engaged in a struggle, during which the firearm accidentally discharged, killing the victim. Mr Penza did not give evidence, but his co-offender's evidence was relied upon to found a submission that Mr Penza had run from the scene before the discharge of the firearm. 4 Mr DiMaria's evidence was patently rejected by the jury. There remains very little evidence upon which I can determine the events leading up to the discharge of the firearm. The nature of the acts carried out by each of them, their respective roles in the confrontation with the victim, where that confrontation commenced and under what circumstances remain largely matters of speculation. For these reasons, the assessment of the objective gravity of the offence is problematic : see R v J B and R J H (1999) NSWCCA 93 at (33). Putting Mr DiMaria's evidence to one side, the following represents the basis for the findings I have made for the purposes of sentence.

Findings of Fact on Sentence. 5 It was not disputed that the offenders consumed a large amount of alcohol in each other's company in the afternoon and evening of 16 April 2006. By the time they went to the victim's house, they were highly intoxicated, although there was some evidence of a visit to a service station, shortly before the incident, where cigarettes were purchased. I am of the view that the jury's verdict is consistent with satisfaction beyond reasonable doubt that the offenders were armed, but a failure to be satisfied beyond reasonable doubt that either of the offenders had the requisite specific intent to commit the offence of murder, principally because of their intoxication. 6 It is also apparent that there was some kind of struggle between Mr DiMaria and the victim. The victim had a number of grazes and bruises on his right side and on both lower limbs consistent with blunt force injury. Raised voices and yelling were also heard by a number of neighbours in the early hours of the morning. 7 The most troubling aspect of the encounter between the offenders and the victim centred on a gutter mark in the door frame of the rear door and evidence of the discharge of a firearm from the back veranda, through the open door, into the kitchen of the victim's home. It was the Crown case that the offenders had fired at the victim whilst he was in the house, at some time before the victim came down the stairs and was fatally shot. The defence case maintained that other unknown persons, most probably rival drug dealers with whom the victim was in dispute, had discharged a firearm into the house. That was an important plank of the defence case, because it refuted an essential element in the Crown case, namely that the offenders must have gone to the premises armed. As I have already noted, the jury's verdicts establish that they were armed. 8 There was some evidence consistent with the offenders' attempts to ensure that the victim was not at home when they first arrived. The occupant (Mr P) of a house which overlooked the back yard of the victim's house observed a man standing on the rear veranda of the house adjacent to the victim's house, calling out to someone. It was about 4:20am. The witness also heard sounds consistent with wrestling, and with someone jumping over a colourbond fence. A loud gunshot was followed by a short silence, then two more gunshots in quick succession. The witness then saw a man, consistent with Mr DiMaria's appearance, standing on the rear balcony of the victim's house. The man then walked down the stairs and up the side of the house. Other neighbours gave evidence of hearing 2 or 3 loud bangs in the early hours of that morning, variously between about 1:30am and 4:20am. However, Mr P was the only witness who looked out onto the rear of the relevant premises on the night in question. 9 I am of the view that the offenders were indeed concerned to find out if the victim was at home, given that the victim knew them both well and he was known to defend himself by the use of firearms. When the victim did not respond to their calls, for whatever reason, the offenders went to the laundry and began to break open the wall to gain access to the drugs and money secreted therein. Something alerted the offenders to the presence of the victim inside the house, resulting in one or both offenders mounting the steps to the back door. The nature of the confrontation at that point is a matter of speculation but I accept that one of the offenders discharged a firearm into the kitchen from the rear balcony. It would appear that either or both of them then retreated hurriedly down the stairs where the victim caught up with them. A physical fight ensued adjacent to the laundry, in the course of which the victim's blood was smeared on the laundry door frame. Within a short time, the fatal shot was fired by one of the offenders, at reasonably close range, given that the bullet passed through the brain and was located under the skin on the other side of the skull. The angle of the entry wound indicates that the victim was either falling at the time or had fallen and was at least partially prone on the ground. 10 Mr Penza's counsel in particular relied upon the evidence of Mr P in order to support the evidence of Mr DiMaria that Mr Penza ran from the rear yard before the victim was shot. The sound of something striking the fence was consistent, it was said, with Mr Penza jumping the fence shortly before the three gunshots. I do not make that finding, principally because the noise from the fence may be explained by any number of circumstances and the jury must have rejected Mr DiMaria's evidence in its entirety. 11 Given the absence of the murder weapon and the rejection of Mr DiMaria's evidence, I am unable to determine who fired the fatal shot. I approach sentence therefore on the basis that each of the offenders are equally liable for the death of the victim. I am also of the view that the victim was not armed at the time, although I accept that he was known to keep guns and that the offenders expected resistance if he became aware of their intention. Whatever the victim's attitude towards those who might rob him, Mr Penza was, for all intents and purposes, a son to the victim and Mr DiMaria was a family friend. It is unlikely, in my view, that the victim armed himself once he became aware of the presence of Mr Penza. 12 The decision by the offenders to go to the victim's home and help themselves to his stash of drugs was an impulsive one made whilst heavily intoxicated. There was some planning, which could hardly be described as sophisticated or considered. The offender Penza was on bail awaiting sentence for an offence of ongoing supply of a prohibited drug. On 28 April 2006 he received a sentence of 3 years and 3 months with a non-parole period of 15 months.

The Objective Gravity of the Offence 13 The Crown's argument that a felony murder does not necessarily warrant the imposition of a non-parole period below the standard non parole period is well founded. In Aslett v R [2006] NSWCCA 360, it was observed that where an offender :- carried [a] loaded gun in circumstances where he contemplated resistance, took it out of his pocket when resistance occurred and deliberately discharged it, [a] murder committed in these circumstances may be as serious as a murder committed with intent to kill R v Mills, unreported, NSWCCA, (3 April 1995); R v Jacobs and Mehajer (2004) 151 A Crim R 452 and R v EM [2005] NSWSC 212 per James J. 14 To the extent that guidance can be obtained from a perusal of decisions of this Court and of the Court of Criminal Appeal in respect of felony murder, either before or after the introduction of the standard non parole period, there is a surprising uniformity in the sentences that have been imposed. In R v Smale [2005] NSWSC 903 a sentence of 18 years imprisonment was imposed after trial in respect of a felony murder committed in the course of a robbery on a hotel. In R v Nguyen [2007] NSWSC 389 a sentence of 18 years imprisonment was imposed after a plea of guilty for a murder committed upon a shopkeeper in the course of a robbery whilst the offender was on parole. In that case Whealey J. determined that the offence fell not far below the mid range of objective gravity. In R v Silvano [2006] NSWSC 832, the shooting death of a co-offender during the commission of an armed robbery was assessed as "just below the middle of the range". Lastly in R v BH [2009] NSWSC 358 a sentence of 17 years imprisonment was imposed upon a juvenile after a plea of guilty for the offence of murder committed in the course of a robbery. 15 The assault upon the victim in his own home places this offence in a somewhat different category, although there are features of the cases referred to above that are arguably of a more aggravating nature. In Nguyen, Whealey J referred to the fact that the death of the shopkeeper occurred after the offender had brandished a knife and persisted in his demands for money, ultimately stabbing the victim several times. I accept that in this case the offenders' capacity to exercise judgement was affected by the combination of their intoxication and ingestion of illicit drugs, so that when they were confronted by the victim, the firearm was discharged spontaneously. 16 The offence was committed out of the need to obtain cocaine, a drug which both offenders had used since adolescence. This does not reduce the requirement to reflect general deterrence in the sentence to be imposed. However, as the discussion of Mr Penza's background below amply demonstrates, he comes within the ambit of this statement by Wood CJ at CL in R v Henry & Ors. [1999] NSWCCA 111 at 273 :- [his] addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, ……. where it occurred at a very young age, ……, so that [his] ability to exercise appropriate judgment or choice was incomplete; 17 Taking these matters into account, I would assess the objective gravity of the offence as moderately below the midrange. It remains to consider the subjective circumstances of each of the offenders. The reports tendered on behalf of each offender outline their respective personal histories. Both of the offenders continue to maintain their innocence. Thus, there is no demonstration of remorse and their respective prospects of rehabilitation are difficult to assess in the face of a refusal to take responsibility for the offence. 18 In Mr DiMaria's case, there are a number of offences before the Court pursuant to a certificate under section 166 of the Criminal Procedure Act 1986. This offender has asked the Court to deal with these matters when imposing a sentence for the offence of murder. These offences arise in the following circumstances. After the victim was shot, Mr DiMaria made off with a large amount of money from the wall cavity, most, if not all of which, he spent during an extensive overseas trip. He fled the country on 18 April 2006. He arranged to meet his girlfriend, for whom he also bought a ticket, in Malaysia. Ultimately, Mr DiMaria returned to Australia under a false name. He was arrested by police on 24 August 2007 after a car he was driving under the name of Watkins was stopped. He also had other identity documents in the name of Watkins in his possession. It is accepted by the Crown that concurrent sentences may be imposed for these offences.

The Offender Penza 19 This offender's background is described within a report prepared under the hand of Mr Borenstein, clinical psychologist, dated 17 October 2009, as "a tragic dysfunctional childhood and adolescence." The offender was born into a family in Fairfield with two older sisters, a younger brother and a younger sister. He knows very little of his father. His parents separated when he was five years of age. Mr Penza lived with his mother for the first 10 years of his life until his older sister convinced him to live with their father. 20 From that age, this offender was not subject to any discipline or any regulation of his behaviour. Mr Penza's father had remarried and had two children at that time. The offender left his father's home not long after he arrived, roaming the streets and living in abandoned houses. He did not attend school. Not surprisingly the Department of Community Services became involved with Mr Penza from the age of about 10. He was placed in Barnardos and a variety of foster homes, from which he escaped on numerous occasions. 21 At about the age of 11, the victim and his wife fostered Mr Penza, despite the fact that they already had three children of their own. The victim worked as a brickies labourer but had a lengthy history of supplying prohibited drugs, for which he was ultimately imprisoned. It appears that Mr Penza's second oldest sister was also fostered to the Minotte family, by which time she was also drug affected. She committed suicide at the age of 23. 22 The offender claims that he was introduced to drugs by the victim's wife. He commenced using cannabis at the age of 11. By the age of 13 he was using cocaine. He did not inject drugs. He also abused alcohol, mainly spirits. He was allowed complete freedom and would stay away for days if not weeks on end. He was completely unsupervised and was emotionally and physically neglected. The offender describes a chaotic household where there were no rules and where he was rarely fed. He had some contact with his parents but felt unable to return to their home. For a period of 12 months, the offender went to Queensland to live with his aunt but returned to Sydney and to the Minotte family. 23 For the first 10 years of Mr Penza's life with the family, the victim was absent serving a term of imprisonment of 10 years. The offender met the victim for the first time when the offender was 19 years of age. The offender knew that there were drugs and cash buried all over the house. Drug taking and drug supply appeared to be an everyday feature of domestic life. Mr Penza was familiar from an early age with cannabis, cocaine, crack cocaine, ecstasy, amphetamines, heroin, ice and LSD. 24 The offender's treatment unremarkably resulted in behavioural problems. He was expelled from school on one occasion, was dealing in drugs from the age of 14 and was in and out of juvenile facilities for offences relating to the theft of motor vehicles, stolen goods and malicious damage. The offender's criminal history includes a number of drug-related offences. It is largely unbroken from 1997 to the commission of the instant offence. 25 In his adult years, Mr Penza lived next door to the victim together with the middle son of the victim and his wife. They were renting the premises and supporting themselves through the supply of drugs and theft. Mr Penza worked intermittently as a brickies labourer. Mr Penza has a child as a result of a relationship which commenced at the age of 15. The offender's son is now aged 11 and lives with the mother's parents. 26 Mr Penza is presently 27 years of age. He has completed a number of drug and alcohol courses since entering prison. He has in the past attempted to wean himself off drugs and alcohol but has met with limited success. Given the environment within which he was raised and what can only be described as a complete lack of socialisation, the offender will require long-term psychological intervention if he is to have any prospect of integration into the community upon his release. He is barely literate and is assessed at low to average intelligence. He has however acquired some insight into the causes of his present situation and appreciates that his rehabilitation will be a difficult and lengthy process. To his credit, he does not bear any ill will towards the Minotte family. He denies any malice towards the victim. The Offender DiMaria 27 This offender was born in Sydney to a family of six brothers and two sisters. He is presently 26 years of age. An older brother died in 2000. The offender's parents separated when the offender was 18 years of age. He was educated to year 7 at a sports high school because of some prowess as an athlete. He was asked to leave because of his behavioural problems, said to be the result of a learning disability acquired from an accident on the 10th of February 1987 when he was struck by a vehicle as a pedestrian at the age of 3. 28 The offender left the family home at the age of 12 and lived an itinerant life until the age of 18 years. At the age of 16 he became involved with a self-help programme for troubled youths in Pendle Hill. Despite some drug abuse in the course of his adolescence, he determined to cease using drugs at the age of 18 so that he could obtain an apprenticeship as a panel beater at Artarmon. He enrolled in a TAFE college and commenced playing rugby league. It appears that the apprenticeship ceased because of the offender's learning difficulties and a similar position at Granville terminated with the offender's dismissal. He has essentially been unemployed since that time apart from brief part-time work on building sites. 29 This offender's poly-substance abuse, which included cocaine, ecstasy and for a time heroin, apparently has its origins in a history of domestic violence in the offender's home, where his father would frequently assault his mother as well as the offender. A report under the hand of Tim Watson Munro dated 22 October 2009, refers to psychometric reports that reveal a very low level of intelligence, consistent with the offender's significant difficulties with planning, and problem solving. However, Mr Watson Munro assesses the offender presently within the borderline category. 30 The offender's criminal history is less extensive than his co-offender but contains similar convictions for property and drug offences dating from 1997. 31 The offender expressed deep regret in relation to the death of the victim. According to the report, the offender has suffered from depression, anxiety and cognitive impairment for much of his life. These limitations have been compounded by drug and alcohol abuse. There is some basis for concluding that the offender is now motivated to further progress his rehabilitation. He recognizes the need to remain drug-free and to undergo treatment aimed at the acquisition of broader social skills.

The Sentence 32 The sentence to be imposed upon each of the offenders must take account of the fact that murder is regarded as the most serious offence in the criminal calendar, carrying a maximum penalty of life imprisonment and a standard non parole period of 20 years imprisonment. The objective gravity of the offence cannot be mitigated by the fact that the victim was engaged in the commission of other criminal offences, or by the fact that the victim and his wife had on any view provided an appalling environment within which to raise a vulnerable and psychologically damaged child. However, it is understandable, particularly in the case of Mr Penza, that the dysfunctional childhood and adolescence described above was a breeding ground for escalating criminality, to the extent that Mr Penza 's culpability for this offence must be assessed in that light. 33 Both of the offenders are young males who will spend a substantial proportion of their productive lives in custody. I take that factor into account, together with the subjective circumstances of each offender, in order to find special circumstances. This is in my view an obvious example of the need for a longer period of supervision to allow the offenders some chance of adopting a normal life within the community. That said, the non-parole period must not be reduced to the point where it fails to reflect the objective gravity of the offence. 34 I have also had regard to the victim impact statements which were read to the Court by members of the victim's family. The Court acknowledges that the family has lost a father, grandfather and husband and that they have experienced a sense of betrayal on the part of Mr Penza. There are however well established limits to the role that a victim impact statement plays in the sentencing exercise. It cannot influence the proper exercise of the sentencing discretion. 35 Taking all of these matters into account I propose to sentence the offenders as follows :-

Franco Penza, you are convicted of the murder of Christian Minotte. I sentence you 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, you are convicted of the murder of Christian Minotte. I sentence you 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, I convict you of the following offences and impose the following sentences :-

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.

03/02/2010 - Amendment in coversheet of trial dates - Paragraph(s) Refer cover sheet 04/02/2010 - coversheet - dates of trial - Paragraph(s) Nil 22/02/2010 - Date of Judgment omitted from coversheet - Paragraph(s) Coversheet amendment only 03/08/2010 - AMENDMENT TO COVERSHEET - Paragraph(s) No paragraph altered - Coversheet only

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