Two men who have been in jail for over 5-years have been acquitted of the shooting murder of a drug dealer in Mount Pritchard, Sydney, after Benjamin & Leonardo faced the appeals court on their behalf. As a result, the appeals court found that there was not enough evidence that the two men had gone there with the premeditated idea of murdering the victim, but in fact could very well have been confronted by the gun themselves which fired during a scuffle with the victim on the 17th of April 2006.
In 2009 during the trial of Franco Michael Penza and Joshua Di Maria, the court heard that the pair went Mr Minotte’s (the victim) residence, already armed with a firearm with the intend to steal cash and drugs that he had kept concealed within the walls of his laundry.
A son of the victim stated to the court that his father stored at least $250,000 dollars in the wall and would break and repair as needed when he wanted to withdraw or store more cash.
The crown prosecutor for the case had alleged that both of the accused where involved in a “joint criminal enterprise” that would involve them robbing the victim with the known possibility of the need to fire the weapon.
Following the incident, Mr Di Maria travelled to various locations around the world with his girlfriend including Bankok, Malaysia, Milan, Rome and Sicily, paying for the trip in cash, while parting with another $4000 for liposuction surgery for his girlfriend. Upon his return to Australia in 2007, he was arrested.
Mr Di Maria stated during his trial that himself and Mr Penza went to the victim’s house and used a sledge hammer and chisel in order to break open the laundry wall containing the money.
He went on to state that Mr Minotte confronted the men whilst they were in the laundry, asking “What are you trying to steal from me?” whilst pointing the gun at him and then hitting him over the back of the skull with a hard object. In fear that Mr Minotte was about to shoot him, he then threw a brick at the victim and began to struggle with him at which stage the gun fired.
By the conclusion of their trial, the jury decided to dismiss the scenario presented by the defendants in favour of a murder charge for both men. Both men were then sentenced to a minimum of 13 years and a maximum of 18 years.
The two convicted men appealed their convictions for several different reasons. Their representatives, Benjamin & Leonardo gave several reasons for their appeals including an unreasonable verdict considering the evidence presented and that the judge had failed to give the jury a charge of ‘manslaughter by unlawful and dangerous act’ for the juries consideration.
After hearing the appeals presented by Benjamin & Leonardo on the defendant’s behalf, Justice Clifton Hoeben of the Court of Criminal Appeal stated that there was difficulty with the evidence presented about a range of factors including the weapon and bullet casings that were found on the floor of the house. Along with this he stated that no evidence had been presented to show that either of the men had ever owned or had a gun prior to the incident, nor where they would be able to procure such a weapon that late in the night.
The judge went on to state that the scenario was “consistent with innocence” and that was supported by the evidence that was available. “That scenario involves going to the deceased’s house to acquire drugs” continuing on he said that this was supported by them “shouting to him so as to indicate who they were” and as a result of this he acknowledged that after receiving no response, they continued, “opportunistically deciding to steal drugs and money from him.
“While doing so, the deceased confronted them and a scuffle ensued between him and one of the appellants leading to the discharge of the firearm and the deceased’s death.”
For the most part, both Justice Stephen Campbell and Justice Richard button agreed with Justice Hoebens findings. As a result, the convictions for both Mr Penza and Mr Di Maria were quashed.
The case of Mr. Penza and Mr. Di Maria has been intriguing, and has piqued the interest of several news outlets including the Sydney Morning Herald .