R v Penza and DiMaria [2010] NSWSC 16

R v Penza and DiMaria [2010] NSWSC 16

The offenders were to be sentenced on the basis of felony murder, with equal liability for the victim's death because the Court could not determine who fired the fatal shot. Although the murder occurred during an armed attempt to steal drugs and money from the victim's home and involved a firearm discharged at close range, the absence of proved intent to kill or inflict really serious injury, the spontaneous discharge in the context of intoxication, and the offenders' significant subjective circumstances meant the objective gravity was moderately below the midrange. Special circumstances were found because the young offenders would spend a substantial part of their productive lives in...

Jurisdiction
Australia
Judgment Date
29 January 2010
Procedural Posture
Criminal Sentence / Sentence After Jury Trial
Outcome
Both offenders were convicted of the murder of Christian Minotte and sentenced to imprisonment. Joshua DiMaria was also convicted and sentenced for additional offences under s 167 of the Criminal Procedure Act 1986.
Legal Topics
['felony Murder' 'murder' 'robbery Whilst Armed' 'break Enter and Steal Whilst Armed' 'objective Gravity' 'standard Non Parole Period' 'intoxication' 'drug Addiction' 'special Circumstances']
['criminal Law' 'sentencing'] ['felony Murder' 'murder' 'robbery Whilst Armed' 'break Enter and Steal Whilst Armed' 'objective Gravity' 'standard Non Parole Period' 'intoxication' 'drug Addiction' 'special Circumstances']

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Procedural Posture

Criminal Sentence / Sentence After Jury Trial

Legal Issues

  1. 1 ['What was the appropriate basis for sentencing the offenders for murder after the jury verdicts.' 'How the objective gravity of the felony murder should be assessed where intent to kill or inflict grievous bodily harm was not proved beyond reasonable doubt.' "What weight should be given to the offenders' intoxication, drug addiction, backgrounds, prospects of rehabilitation and absence of remorse." 'Whether special circumstances justified a longer balance of term for supervision after release.']

Ratio Decidendi

The offenders were to be sentenced on the basis of felony murder, with equal liability for the victim's death because the Court could not determine who fired the fatal shot. Although the murder occurred during an armed attempt to steal drugs and money from the victim's home and involved a firearm discharged at close range, the absence of proved intent to kill or inflict really serious injury, the spontaneous discharge in the context of intoxication, and the offenders' significant subjective circumstances meant the objective gravity was moderately below the midrange. Special circumstances were found because the young offenders would spend a substantial part of their productive lives in...

Court Disposition

Both offenders were convicted of the murder of Christian Minotte and sentenced to imprisonment. Joshua DiMaria was also convicted and sentenced for additional offences under s 167 of the Criminal Procedure Act 1986.

Orders

  • ['Franco Penza convicted of the murder of Christian Minotte and sentenced to a non-parole period of 13 years from 27 July 2007, expiring 26 July 2020, with a balance of term of five years, expiring 26 July 2025; eligible for release on 27 July 2020.' 'Joshua DiMaria convicted of the murder of Christian Minotte and...