R v Mazzilli [2001] NSWCCA 177

New South Wales Court of Criminal Appeal

CITATION : R v Mazzilli [2001] NSWCCA 177 FILE NUMBER(S) : CCA 60355/00 HEARING DATE(S) : 9.5.01 JUDGMENT DATE : 9 May 2001

PARTIES : Regina Maximillian Mazzilli JUDGMENT OF : Carruthers AJ at 1; Badgery-Parker AJ at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0191 98/11/0740 LOWER COURT JUDICIAL Woods DCJ OFFICER :

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. Crimes Act 1900 LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 Drug Misuse and Trafficking Act 1985 R v C, S & T (Unreported, NSWCCA 12 October 1989) CASES CITED: R v Pearce (1998) 194 CLR 610 R WKR (193) 42 NSWLR 447 DECISION : Leave to appeal granted. Appeal dismissed.

- 13 -1 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. 2 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. 3 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. 4 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. 5 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. 6 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. 7 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. 8 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. 9 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. 10 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. 11 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. 12 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. 13 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. 14 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'."