Ciantar v The Queen

[2010] VSCA 313

SUPREME COURT OF VICTORIA

COURT OF APPEAL

KRISTOPHER CIANTAR	S APCR 2009 0609
	Appellant
v
THE QUEEN	Respondent
- and -
	S APCR 2009 0618
CAMERON ROSE	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 November 2010
DATE OF JUDGMENT	29 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 313
JUDGMENT APPEALED FROM	R v Ciantar and Rose (Unreported, County Court of Victoria, Judge Parsons, 24 April 2009)

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CRIMINAL LAW – Sentencing – Burglary - Conduct endangering persons and possess explosives without lawful object – Rehabilitation prospects and plea of guilty – Whether judge allowed sufficient discount for guilty plea – Totality – Whether judge erred in making no allowance for ‘pre sentence’ detention – Appeal allowed in part – R v Renzella [1997] 2 VR 88 applied.

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Appearances:	Counsel	Solicitors
For the Appellant Rose	Mr D A Dann	Haines & Polites
For the Appellant Ciantar	Mr L C Carter	Melinda Walker
For the Respondent	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

BONGIORNO JA:

1. These are appeals against sentences of imprisonment imposed on the appellants on 24 April 2009 on pleading guilty to one count of conduct endangering persons, two counts of burglary and one count of possessing explosives without lawful object and, in the case of the appellant Ciantar, to a further count of possession of a drug of dependence.

1. The maximum penalty applicable to each offence, and the individual sentences and the orders for cumulation made in each case, were as follows:

ROSE		CIANTAR
CT.	DESCRIPTION	MAX	SENTENCE	CMLTN	SENTENCE	CMLTN
1	Conduct endangering persons	5y imp	1½y imp	1y	1½y imp	1y
2	Burglary	10y imp	2½y imp	BASE	2½y imp	BASE
3	Burglary	l0y imp	2½y imp	6m	2½y imp	6m
4	Possess explosives without lawful object	5y imp	2y imp	6m	2y imp	6m
5	Possess drug of dependence	1y imp or 3OPU	N/A	N/A	1m imp
Total effective sentence Non-parole period			ROSE TES: 4y 6m imp NPP: 3y		CIANTAR TES: 4y 7m imp NPP: 3y 1m

1. The circumstances of the offending are described in the judge’s sentencing remarks.  On Wednesday 15 October 2008, police began surveillance of both appellants which they continued on 16 and 17 October 2008.  On 16 October 2008, at approximately 11.50 pm Rose was observed driving a silver Mitsubishi with Ciantar in the passenger seat in Lexton Street, Coolaroo industrial estate.  Police watched the appellants park the vehicle and walk into the yard of MFJ Constructions, which contained two locked explosive magazines, before moving off again at about 12.00 am.

1. At 1.42 am on Friday 17 October 2008, they were seen parked on Fairways Boulevard, Craigieburn.  Police observed Rose open the boot and Ciantar looking off the bridge into the lake before returning to the vehicle and driving away.

1. At around midday, police attended the lake and retrieved a red wooden box marked ‘explosives’ from the water.  It contained a grey Nike…