R v Mastronardi

[2004] NSWCCA 273

CITATION:	R v MASTRONARDI [2004] NSWCCA 273
HEARING DATE(S):	7 July 2004
JUDGMENT DATE:	23 August 2004
JUDGMENT OF:	Sheller JA at 1; Sperling J at 41; Adams J at 42
DECISION:	1 Grant leave to appeal; 2 Appeal allowed; 3 Quash the sentences imposed by his Honour Acting Judge Kinchington on 5 August 2003; 4 In lieu thereof the applicant is sentenced as follows; (1) Armed robbery on 12 October 2002; a fixed term of three years imprisonment to commence on 18 January 2003, the date on which the applicant was taken into custody, and expire on 17 January 2006; (2) Aggravated take and drive conveyance (car-jacking) on 18 January 2003; a fixed term of three years imprisonment to commence on 18 January 2004 and to expire on 17 January 2007; (3) Aggravated robbery on 18 January 2003; a term of four years imprisonment to commence on 18 January 2005 and to expire on 17 January 2009 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007; (4) Use of offensive weapon to resist lawful apprehension on 18 January 2003; a term of imprisonment of two years and six months to commence on 18 January 2005 and expire on 17 July 2007 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007.
CATCHWORDS:	APPEAL AGAINST SENTENCE - four offences - questions of cumulation and concurrence - whether aggravated robbery sentence outside the range of a proper exercise of the sentencing discretion - effect on total sentence - special circumstances to be taken into account
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standing Minimum Sentencing) Act 2002 Crimes Act 1900
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Astill (No 2) (1992) 64 A Crim R 289 R v Davies; Gorman v R (1978) 68 Crim App R 319 R v Henry (1999) 46 NSWLR 346 R v Morgan (1993) 70 A Crim R 368
PARTIES :	Fabian Mark Mastronardi - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 60118/04
COUNSEL:	P Hamill - Applicant D Frearson - Respondent
SOLICITORS:	S O'Connor - Applicant S Kavanagh - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0189
LOWER COURT JUDICIAL OFFICER :	Kinchington ADCJ

60118/04

SHELLER JA
SPERLING J
ADAMS J

R v Fabian Mark MASTRONARDI

On 12 October 2002, the applicant committed a robbery, armed with a knife, at the Broadway Newsagency, Broadway. On 18 January 2003, the applicant carjacked a blue Toyota Corolla after threatening the driver of the vehicle with a syringe. On that same day, the applicant robbed a cashier of a change bag at Food for Less. While fleeing to the carpark the applicant fell. When approached by a trolley attendant of the shopping centre, the applicant used a syringe to resist apprehension.

The applicant pleaded guilty to these four offences and was sentenced by his Honour Acting Justice Kinchington on 5 August 2003. For the armed robbery on 12 October 2002, the applicant was sentenced to a fixed term of four years imprisonment to commence on 18 January 2003 and to expire on 17 January 2007. For the car jacking on 18 January 2003, a fixed term sentence of three years to commence on 18 January 2005 was imposed. In relation to the aggravated robbery on 18 January 2003, the applicant was sentenced to a non-parole period of six and a half years to commence on 18 January 2007 and a parole period of three and a half years to commence on 18 June 2013. For the use of an offensive weapon to resist lawful apprehension on 18 January 2003, a fixed term sentence of two and a half years to commence on 18 January 2007 was imposed. Consequently, there was a total effective sentence of fourteen years until 17 January 2017 with an effective non-parole period of ten and a half years until 17 July 2013, precisely three-quarters of the effective sentence.

The applicant seeks leave to appeal against the sentences imposed on him in the District Court. The principal grounds on which the applicant seeks leave to appeal are that the sentence imposed on the aggravated robbery of 18 January 2003 and the total sentence were manifestly excessive.

Held: Per Sheller JA, Sperling and Adams JJ agreeing

1. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality.

Pearce v Queen (1998) 194 CLR 610 at 624

2. The trial Judge fixed sentences he considered appropriate in regard to each of the criminal offences committed, to be served partially concurrently and partially cumulatively on each other.

3. It was striking that for the first offence of robbery armed with a knife the sentence imposed was for a fixed term of four years whereas for the third offence of robbery using corporal violence, described as a struggle for a few seconds which caused some minor injuries to the cashier, the applicant was sentenced to ten years imprisonment with a non-parole period of six and a half years. The difference was not explained in the trial Judge’s remarks on sentence.

4. A sentence of ten years imprisonment for the third offence was, giving full weight to the objective and subjective considerations identified by the trial Judge, outside the range of a proper exercise of the sentencing discretion and should be quashed. It follows, due to the way the overall sentence was structured that, at least to this extent, the total sentence was manifestly excessive.

5. The proper sentence for both the first and third counts was five years imprisonment with a non-parole period of three years. However in determining the full term sentence, the special circumstances of the applicant, namely the fact that the applicant needs to be kept in strict protection and suffers serious psychological sequelae as a result of a previous assault upon him in prison, have to be taken into account.

6. The sentencing Judge in imposing fixed terms did so as part of the process of imposing an appropriate sentence for each offence and at the same time producing an overall sentencing structure seen to meet the requirements of totality and producing an appropriate non-parole period to accord with section 44 of the Crimes (Sentencing Procedure) Act 1999, as it then was. This Court should take the same approach.

7. Accepting it as appropriate to impose a fixed term for the first charge, that fixed term should be three years. The three-year fixed sentence for the second charge and the two and a half year term for the fourth charge should not be interfered with. For the third charge a sentence should be imposed of four years with a non-parole period of two years.

8. The fixed term for the first charge should commence on 18 January 2003 and expire on 17 January 2006. The fixed term for the second charge should commence on 18 January 2004 and expire on 17 January 2007. The sentence on the third charge should commence on 18 January 2005 and expire on 17 January 2009 with a non-parole period of two years to expire on 17 January 2007. The sentence on the fourth charge should also commence on 18 January 2005 and expire on 17 July 2007 with a non-parole period of two years to expire on 17 January 2007. The total sentence, therefore, will be for a period of six years imprisonment with a non-parole period, which takes account of special circumstances, of four years expiring on 17 January 2007.

Legislation cited:

Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standing Minimum Sentencing) Act 2002
Crimes Act 1900

Cases cited:

Pearce v The Queen (1998) 194 CLR 610
R v Astill (No 2) (1992) 64 A Crim R 289
R v Davies; Gorman v R (1978) 68 Crim App R 319
R v Henry (1999) 46 NSWLR 346
R v Morgan (1993) 70 A Crim R 368

ORDERS

1. Grant leave to appeal;

2. Appeal allowed;

3. Quash the sentences imposed by his Honour Acting Judge Kinchington on 5 August 2003;

4. In lieu thereof the applicant is sentenced as follows:

(1) Armed robbery on 12 October 2002; a fixed term of three years imprisonment to commence on 18 January 2003, the date on which the applicant was taken into custody, and expire on 17 January 2006;
(2) Aggravated take and drive conveyance (car-jacking) on 18 January 2003; a fixed term of three years imprisonment to commence on 18 January 2004 and to expire on 17 January 2007;
(3) Aggravated robbery on 18 January 2003; a term of four years imprisonment to commence on 18 January 2005 and to expire on 17 January 2009 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007;
(4) Use of offensive weapon to resist lawful apprehension on 18 January 2003; a term of imprisonment of two years and six months to commence on 18 January 2005 and expire on 17 July 2007 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007.
**********

60118/04

SHELLER JA
SPERLING J
ADAMS J

Monday, 23 August 2004

R v Fabian Mark MASTRONARDI

Judgment

1 SHELLER JA: The applicant, Fabian Mark Mastronardi, seeks leave to appeal against sentences imposed on him in the District Court by his Honour Acting Judge Kinchington on 5 August 2003.

2 The applicant pleaded guilty to four offences for which he was sentenced as follows:

(1) Armed robbery on 12 October 2002; a fixed term of four years imprisonment to commence on 18 January 2003, the date on which he was taken into custody, and to expire on 17 January 2007;

(2) Aggravated take and drive conveyance (car jacking) on 18 January 2003; a fixed term of three years imprisonment to commence on 18 January 2005 and to expire on 17 January 2008;

(3) Aggravated robbery on 18 January 2003; a non-parole period of six and a half years to commence on 18 January 2007 and expire on 17 July 2013; a parole period of three and a half years to commence on 18 June 2013 and to expire on 17 January 2017;

(4) Use of offensive weapon to resist lawful apprehension on 18 January 2003; a fixed term of two and a half years imprisonment to commence on 18 January 2007 and to expire on 17 July 2009.

3 The maximum penalty for armed robbery was imprisonment for twenty years (s97(1) Crimes Act 1900); for take and drive conveyance armed with offensive weapon – imprisonment for fourteen years (s154C(2)); for aggravated robbery, use of corporal violence – imprisonment for twenty years (s95) and for use of offensive weapon to prevent lawful apprehension – imprisonment for twelve years (s33B(1)(a)).

4 The structure of the sentences was such that for the first offence the applicant was imprisoned until 17 January 2007, for the second, which was partly concurrent until 7 January 2008, for the third, which was partly concurrent with the second until 17 July 2013 and for the fourth, which was wholly concurrent with the third and hence partly concurrent with the second until 17 July 2009. In the result, there was an effective sentence of fourteen years until 17 January 2017 with an effective non-parole period of ten and a half years until 17 July 2013.

5 The facts can be briefly stated as follows:

Armed robbery on 12 October 2002

6 On 12 October 2002, the applicant entered the Broadway Newsagency at Broadway. He selected a magazine and took it to the counter where he stood next to the proprietor’s son, Gavin Fay, who was working at the newsagency, and produced a knife saying “Hand over the money”. He raised the knife and held it to the victim’s side. The applicant removed a plastic shopping bag from his trousers and told the victim to put the money in that bag. The victim opened the cash register and removed some cash, which he placed in the plastic bag. The applicant pointed out some further notes which were also placed in the plastic bag. The victim said in his statement that “the only reason that I handed over the money was because I feared for my life as I believed that if I did not I would have been stabbed”. The applicant ran from the store.

7 The incident was recorded on the store’s security camera and still photographs were taken from the videotape. Fingerprints matching those of the applicant were identified on the magazine selected by the applicant, which was on the counter when he left the store. Approximately $1,500 was stolen from the newsagency and has not been recovered.

Aggravated car jacking on 18 January 2003

8 At about 1.15 pm on 18 January 2003, Lorraine Perez parked her blue Toyota Corolla at Revesby. She left her car and was approached by the applicant who said “You have a flat tyre”. The applicant grabbed the victim’s wrist and said “Give me your keys. I’ve got a needle. You don’t want to die do you? I just want to drive to Panania.” The victim saw that the applicant was holding a syringe. The applicant took the keys from the victim, and entered the blue Toyota and drove away. In her statement the victim said “I was scared for my safety as the male was in possession of a syringe and I didn’t know what he was going to do”.

Aggravated robbery on 18 January 2003

9 At about 2.30 pm on the same day, the applicant arrived at Westfield Shopping Centre at Hurstville. He parked the Toyota in the carpark and entered the shopping centre. Marie Lahoud, a cashier at Food for Less at the Shopping Centre, placed a $20 note and a change order in a change bag. On her way to the service desk, she was approached by the applicant. He grabbed the bag from her and a struggle took place, during which the victim lost some fake fingernails. The victim then let go of the bag. The applicant ran towards the carpark. The victim called out to her supervisor.

Use of offensive weapon to resist apprehension on 18 January 2003

10 As the applicant was running towards the carpark, he stumbled and fell. The keys to the Toyota slid under a vending machine. Miss Lahoud told Mr Ameer Hassan, a trolley attendant at the Shopping Centre, that the applicant had stolen money from her. When Mr Hassan approached the applicant, the applicant produced a syringe which he held towards Mr Hassan’s stomach and said “Don’t touch me. I kill you.” Mr Hassan pushed the applicant’s hand away and grabbed the change bag.

11 When police arrived they retrieved the car keys from under the vending machine. The keys were found to belong to the Toyota Corolla which had been stolen from Miss Perez earlier that day.

Sentencing

12 On 4 March 2003 the applicant pleaded guilty in the Local Court to the charge of aggravated robbery and the charge of aggravated stealing of a motor vehicle. On 28 March 2003 he pleaded guilty before the Chief Judge of the District Court to the charge of resisting arrest by use of an offensive weapon. On 16 May 2003 the applicant appeared before the District Court and adhered to these pleas of guilty. The sentencing hearing was adjourned until 4 July 2003 when the applicant was charged with the offence of armed robbery, that is to say the first offence committed on 12 October 2002, and pleaded guilty to that charge.

13 In his remarks on sentence, Judge Kinchington noted that when the applicant was arrested on 17 April 2003 for the robbery of 12 October 2002 he denied participating in the robbery. Turning to a consideration of the subjective material placed before him on the applicant’s behalf, the sentencing Judge said:

“You are a single man now aged or about to turn thirty-two. You were born on 27 August 1971. You are no stranger to the criminal justice system, first having come under notice in about November 1998 when you were charged with the offence of robbery being armed with an offensive weapon and a further charge of concealing a serious offence. Initially you were dealt with by a judge of this Court but on appeal the sentence he submitted you to was increased to a sentence of three years’ imprisonment in respect of the robbery charge and I think, two years’ imprisonment in respect of the other charge and it was directed that these sentences be served by way of periodic detention.
You also have a conviction for possessing a prohibited drug and two driving offences. At the time you committed the first of these offences in October 2002 you were still serving the three year periodic detention sentence in respect of the previous robbery charge.
You are the second youngest of seven children, all of whom got on well together. However, it would seem that although a good provider your father was prone to be violent both towards you and your brothers and sisters and also you mother, until in your mid teens you confronted your father and his conduct in that regard stopped.
You had a reasonable education and completed your Higher School Certificate. During your school days you worked in the family business and after leaving school it would seem you first of all gained employment as a labourer for about twelve months before obtaining a licence to work as a security officer where you stayed for approximately six years before leaving as you found that job too stressful.
You had begun experimenting with cannabis in your mid teens. Thereafter you experimented with other drugs and ultimately tried heroin and by the time you committed your offences in October 2002 you were well addicted to that illicit drug. You had commenced using heroin when aged eighteen and by the time you were twenty-five you were a habitual user thereof. As I have said earlier you had been a poly-drug user for many years up to the time of your arrest in both October and subsequently in January this year. Over the years you have made a number of attempts to get off your dependency on drugs and you entered rehabilitation programmes. One you stayed in for eight months, I think the others only a matter of days. You were unsuccessful in combating your drug problems. In the course of your evidence you have indicated you wish to get off drugs and that you have made a resolution to do so. both while in gaol and following your release from gaol. You have the support, you say, of your brothers and sisters and you certainly you have the support of your mother because she has been in court every day during the sentencing proceedings and your father is also here today, so you obviously have the support of both of them and I have no doubt you have the support of your brothers and sisters. They will help you maintain your resolve, I anticipate, to change your life around.
You have shown in your past endeavours, first of all as a security officer, and secondly, while you were serving your periodic detention sentence, that you can do something for yourself because in 2002 you had been working as a security officer for a large insurance company. Unfortunately for you, you had to give that job up for a combination of reasons, one of which was stress; another was because you had broken up with your girlfriend whom you had been associated with for some time through her ill-health and her family’s opposition to you and this put you under a further stress. As a result it would seem you returned to the use of illicit drugs and ultimately became a heroin user again. It would seem you have been making some progress towards your own rehabilitation and may have been successful if you had been able to hold down that job for a longer period and if your girlfriend had not become ill, so it would seem you do have the capacity to do something towards your own rehabilitation if you can maintain your will to achieve that objective.
You have told me in the course of your evidence that each of these offences, that is, the offences in October and the three offences in January this year, were all as a result of impulsive conduct on your part. To some extent I find that hard to believe because in regard to the first offence you had a plastic bag in your possession and you had a knife in your possession which, according to you, was not a real knife, but an imitation knife that you carried to protect yourself if the need arose. That need apparently had arisen because you were getting into trouble with loan sharks from whom you had borrowed money to support your drug habit. I am unable to say whether the explanation you have given for the possession of that knife, or whether the knife was not a real knife, is true or not.

As I have indicated, your actions in committing all of these criminal offences do not look to me to be impulsive, and although to some extent the events of 18 January 2003 do have the hallmarks of being somewhat impulsive, I do not think your first offence was an impulsive one. I think it might have been brought about by desperation by you needing money at that time. In any event, you have pleaded guilty to each of those four charges, although I hasten to add it would seem you had little alternative because in each case the Crown had a strong case against you. However, I accept your pleas of guilty as some sign of your remorse and contrition for your criminal conduct on those four occasions and I propose to discount the sentence I must subject you to, in this case by twenty per cent, not only because of your guilty pleas herein but because of the utilitarian value of those pleas.
In arriving at that discount I acknowledge that you have been in custody since 18 January this year and that during that time you seemed to have taken on your own initiative steps towards your own rehabilitation. You have told me you now want to put your dependence on illicit drugs behind you once and for all and to do everything you can to lead a law-abiding life following your release from prison.
I also note from what you have told me that the material that has been placed before me that life in gaol has not been good to you. You are presently in protective custody as a result of an incident that occurred following your arrest for the robbery charge in respect of which you were sentenced to periodic detention. You were apparently assaulted by a number of inmates and you presently have an action against the Department of Corrective Services seeking compensation for the injuries you sustained in that assault. That action is presently pending in this court. Anyone who has to serve a sentence in protective custody certainly does it harder than those who are in the general prison population and I will take this factor into consideration because it is clear from what you have said you will remain in protective custody for some years to come, if not for the whole of the period you will be in prison.”

14 The sentencing Judge turned to consider the sentences to be imposed and said:

“You have committed in all four serious criminal offences on two separate occasions. In those circumstances, the concepts of totality of sentencing, specific and general deterrence and the question of whether I should direct that the sentences I propose to subject you to should be served concurrently or partially cumulatively or totally cumulatively, have to be considered. As I have said, all of these offences were serious criminal offences. In the first you used a knife, or what your victim thought to be a knife, and was put in great fear. When you took the car from Mrs Perez you produced a syringe which must have caused her a great deal of fear and trepidation. When you robbed Ms Lahoud of the $20 in the cash bag a struggle ensued and she lost some artificial fingernails that were attached to her fingernails. No doubt a degree of violence was imposed upon her by you in getting that cash bag off her, and finally in regard to the struggle you had with Mr Hassan, you again produced a syringe. He was very quick minded. The production of the syringe did not deter him from taking action to subdue you until security people arrived.
In addition, the first offence was in no way connected to the last three offences and one of the last three offences was in no way connected to the other two offences, so you have caused me a great deal of concern as to what I should do with you from the point of view of concurrent sentences, cumulative sentences and the total period that I should ensure you remain in gaol.
In addition, all of these offences were committed in he circumstances of aggravation which, as I previously indicated, would have caused a great deal of fear and apprehension to each of your victims. In addition, you were serving a sentence of periodic detention at the time you committed the first robbery. That sentence, I am told, has been revoked and you are now subject to serving the balance of it in a full time manner. In all of these circumstances it seems to me that the objective criminality displayed by you in each case, even bearing in mind the explanations you have given to me, results in me coming to the conclusion that the criminality was between the mid to high range of criminality in regard to these offences. I cannot overlook the fact that the periodic detention sentence was imposed in regard to a robbery charge offence which had been committed a short time before these offences were committed, that is, in 1998 or thereabouts.
Your criminal actions are becoming far too common in this State. The community has an abhorrence to those persons who commit criminal actions using syringes, particularly in this day and age, and the possible consequences of someone receiving a needlestick injury.
Bearing in mind the provisions of s21A of the Crimes (Sentencing Procedure) Act [which lists under the headings General, Aggravating factors and Mitigating factors the matters to be taken into account in determining the appropriate sentence for an offence] and bearing in mind the subjective material to which I have been referred, it seems to me I must impose an overall salutary sentence on the offender. In saying that I do not mean that I have started in fixing an overall term; I have not. What I have done, in accordance with the law, is fix sentences which I think are appropriate in regard to each of the criminal offences committed by the offender. I have regard of what the Court of Criminal Appeal said in Regina v Tozer (2003) NSWCCA 72 and as a result I have fixed on sentences which will be served partially concurrently and partially cumulatively on each other.”

15 His Honour stated the sentences and continued:

“I have fixed all of those sentences to be served by way of a fixed term because they will, in effect, run concurrently and be subsumed by the sentence of ten years for the robbery charge. I have done so bearing in mind the concepts of totality, the fact that the offender will be required to serve those sentences while in protective custody and after allowing for that fact, together with a discount on sentence of some twenty-five per cent for his pleas of guilty herein and for the other reasons I have previously indicated. I have fixed a non-parole period because it seems to me an appropriate one in the circumstances for these offences and particularly because the offender will need professional help and guidance following his release from custody if he is to have a real chance of becoming a law-abiding citizen.
Finally, I note the effect of these sentences will mean the offender will be incarcerated in prison for a period just in excess of ten and a half years before he will be eligible for release on parole. He will obviously have to earn his parole and that will depend upon the way he behaves while in gaol.”

16 The principal grounds upon which the applicant seeks leave to appeal are, as numbered in the notice of appeal, that (2) the sentence imposed on the aggravated robbery of 18 January 2003 and (3) the total sentence imposed were manifestly excessive.

17 In Pearce v The Queen (1998) 194 CLR 610 at 624 the High Court emphasised that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. In the present case, it is striking that for the first offence of robbery armed with a knife the sentence imposed was for a fixed term of four years whereas for the third offence of robbery using corporal violence, described by his Honour as a struggle for a few seconds which caused some minor injuries to Ms Lahoud, the applicant was sentenced to ten years imprisonment with a non-parole period of six and a half years. The difference is not explained in the remarks on sentence. Judge Kinchington said, rightly, that all four charges were for serious criminal offences. In the first the applicant used a knife and the victim was put in great fear. Of the third, his Honour referred to the robbery of $20, the struggle and a degree of violence to Ms Lahoud. Looked at alone the two sentences were cumulative and together resulted in an effective sentence of fourteen years and a non-parole period of ten and a half years.

18 In careful written submissions, Mr Hamill of counsel for the applicant referred to the guideline judgment R v Henry (1999) 46 NSWLR 346 at 380. In a case of an offence of armed robbery characterised by a young offender with no or little criminal history, a weapon like a knife capable of killing or inflicting serious injury, a limited degree of planning, limited, if any, actual violence but a real threat thereof, a victim in a vulnerable position such as a shopkeeper, a small amount taken, and a plea of guilty, the significance of which was limited by a strong case, the sentence imposed should fall within the range of four to five years imprisonment for the full term. Of course, in the present case, the applicant was not a young offender and had a criminal history including a previous conviction for the offence of robbery while armed with an offensive weapon. Mr Hamill referred to several comparable cases decided since Henry.

19 The Crown correctly made the point articulated by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371 that it is wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. As Hunt CJ at CL stated:

“What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.”

20 The maximum penalty for the offence charged in the third count is twenty years and within the meaning of s95 a robbery in circumstances of aggravation means the circumstances, immediately before or at the time of or immediately after the robbery, involved the alleged offender using corporal violence on any person however minor the injuries inflicted may be. I am persuaded however, that a sentence of ten years imprisonment for this offence was, giving full weight to the objective and subjective considerations I have quoted from the remarks on sentence, outside the range of a proper exercise of the sentencing discretion. In my opinion, the sentence for the third count must be quashed. It follows due to the way the overall sentence was structured that, at least to this extent, the total sentence was manifestly excessive.

21 In coming to that conclusion, I have accepted the objective and subjective findings made by the sentencing Judge. Mr Hamill did not challenge these findings. However, further material has been put before the Court, without objection, to be considered on re-sentencing.

22 The applicant’s first ground of appeal is to suggest that the sentencing Judge failed to give effect to a remark which I have quoted, namely that he had fixed all the sentences to be served by fixed term because they would in effect run concurrently and be subsumed by the sentence of ten years for the robbery charge. While perhaps not clearly expressed, I am satisfied that his Honour did what earlier he had said he intended to do, namely, fix sentences he considered appropriate in regard to each of the criminal offences committed, to be served partially concurrently and partially cumulatively on each other.

23 The third ground of appeal which necessarily succeeds, leaves it open to this Court to consider in re-sentencing each sentence to determine whether it should be reduced. Except for one matter to which I will return, nothing need be said further about the fourth and fifth grounds that the sentencing Judge erred in failing to give any adequate weight to the subjective and mitigating circumstances including the pleas of guilty and that his Honour erred in his approach to the questions of totality and accumulation by failing to apply the High Court’s decision in Pearce v The Queen.

24 In working out the degree of partial cumulation, his Honour broke the offences into three groups; the first being the charge for the October 2002 offence, the second being the charge of car jacking on 18 January 2003 and the third being the charges for the other offences committed on 18 January 2003. For those last two charges the sentences were cumulative. The sentence on the second charge was cumulative partly on the sentence for the first charge and partly on the sentences for the third and fourth charges.

Re-sentencing

25 I need not repeat the objective and subjective matters described by the sentencing Judge. Clearly enough the offences were serious. Three of them involved the use of a weapon, in one case a knife and in the other two a syringe. The applicant had a history of committing armed robbery in 1998. The sentencing Judge described fully the applicant’s history and his attempts to rehabilitate himself from drug use which had interrupted what appeared to be a useful working life.

26 On re-sentencing there was read, without objection, an affidavit by the applicant of 30 June 2004 where he referred to the time he has spent in custody, first in Parklea Correctional Centre and later in Lithgow Correctional Centre. While in Parklea he held a position of responsibility as a head sweeper and completed anger management courses in a situation where opportunities were limited. He says that he was in protection in Parklea because when he first went to gaol in 1998 he was attacked by a few inmates and ended up in hospital for three to four weeks. He states that he was attacked by ten inmates because he would not let one of them take his cigarettes. He sustained a fractured cheekbone, bruises and cuts. Most of the damage was psychological. He was diagnosed with post traumatic stress disorder and continues to get flashbacks. He has been on medication ever since. He describes the medication which is anti-psychotic/sedative and anti-depressant. He says that protection is restrictive because he is unable to get access to education. He is regularly locked in. “Protection” is full of dangerous people. He complains about being always a target and seen as a “dog”. He has regularly seen the psychologist but says that since the assault his life has been in a mess.

27 After transfer to Lithgow, where he was also placed in protection, he commenced work in the textiles centre as a clipper. He works five days a week from 8 am to 1.30 pm and weight trains every afternoon. On Wednesdays and Fridays, he is fully involved in doing courses in art, leather work and learning Italian. He sees the psychologist now and then. He deposes: “I plan on having a life when I leave here. Gaol isn’t going to be my life even if it takes a few years before I get out.”

28 He is a regular attender at chapel services and takes part in church activities. He has family support. His physical health is good. He has been on the methadone programme and is now on a reduction programme. The plan is that he will be completely off methadone within four to six months.

29 He describes protection in Lithgow Correctional Centre as adequate but not as good as Parklea. He concludes his affidavit by saying:

“I feel terrible about the offences. I’m very ashamed. I feel terrible about what I did to those people even though I never intended to hurt them nor did I hurt them physically. All I can say is sorry. Because that’s all I can do. I was brought up better than that.”

30 In support of his application an affidavit of 2 July 2004 has been filed by Stella Calomeris, the solicitor employed by the Legal Aid Commission, having the conduct of the matter on behalf of the applicant. She includes supportive material from the Chaplaincy service and the Department of Corrective Service relating to the applicant’s progress in various courses. Also included is the applicant’s prison medical file of clinical notes.

31 Although the sentencing Judge said that at the time the applicant committed the first robbery he was serving a sentence of periodic detention for the earlier robbery, the Crown had made it clear that at least the January 2003 offences were not committed at a time when the applicant was serving periodic detention.

32 It was submitted on behalf of the applicant that the assault in prison had had serious psychological sequelae for him, that he had received a discount of 25 per cent for his pleas of guilty, that he was at the time of sentencing in debt and had been threatened. He had not used heroin for some years until he broke up with his girlfriend a short time before the offences. He had had periods during which he was drug free and in worthwhile employment. None of the offences was well organised or pre-planned to any significant degree. Some, at least, may have been the result of impulse.

33 Mr Hamill did not seek to suggest that the trial Judge had wrongly stated the objective or subjective features of the case. Properly understood, the imposition of a fixed term of three years for the second serious offence, which involved stealing a motor vehicle from its owner under threat of using a syringe, was a significant part of the sentencing process.

34 Since the four offences to which the applicant pleaded guilty were committed before 1 February 2003 the manner of pronouncing sentence is set by s44 of the Crimes (Sentencing Procedure) Act 1999 before it was omitted and replaced by a new s44 by the Crimes (Sentencing Procedure) Amendment (Standing Minimum Sentencing) Act 2002; s30 of the Interpretation Act 1987. Under the old section:

“(1) When sentencing an offender to imprisonment for an offence, a court is required:
(a) firstly, to set the term of the sentence, and
(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).”

According to sub-section (2) the non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

35 In the present case, the total effective sentence was fourteen years with an effective non-parole period of ten and a half years, precisely three-quarters of the effective sentence. The sentencing Judge made no mention of special circumstances and accordingly must be presumed not to have found any. This conclusion was not directly the subject of appeal though probably embraced by ground 4. With due respect, I find it difficult to distinguish the seriousness of the first and second offences though the maximum sentence for the second charge was fourteen years as compared with twenty years for the first and third. The sentencing Judge in imposing fixed terms did so as part of the process of imposing an appropriate sentence for each offence and at the same time producing an overall sentencing structure seen to meet the requirements of totality and producing an appropriate non-parole period. I shall take the same approach.

36 The guideline judgment in Henry suggests a full time term of five years would be close to the top of the range for the first offence. However the applicant had a recent previous conviction and was aged over thirty at the time of the offences. On the other hand his need for protective custody means that any time he spends in prison will be significantly more onerous than otherwise would be the case. There are, it seems to me, special circumstances in that the applicant needs to be kept in strict protection; R v Astill(No 2) (1992) 64 A Crim R 289 at 293, 301 and 304 and suffers serious psychological sequelae as a result of the assault upon him in prison. In Astill at 294 Kirby P, after referring to the judgment of Lord Lane CJ in R v Davies; Gorman v R (1978) 68 Crim App R 319 at 322, said:

“But is it clear (and really a matter of ‘common sense’ as the Lord Chief Justice declared) that ordinary sentencing principles would require consideration to be given to the disparity between arduous sentencing conditions and ordinary sentencing conditions.”

Logically, this factor should be brought into account in determining the full term sentence as well as a special circumstance in determining the non-parole period.

37 Sadly, the past history of the applicant does not support his confidence in rehabilitation to the point where a longer than usual period of rehabilitation for this reason is likely to be justified. In my opinion, an appropriate non-parole period for these charges would be three years.

38 Thus, ignoring for present purposes the question of totality and accepting it as appropriate to impose a fixed term for the first charge, that fixed term should be three years. I would not interfere with the three year fixed sentence for the second charge, nor with the two and a half year term for the fourth charge. However, as will be seen when it comes to determine questions of cumulation and totality the sentence for the fourth charge should be for a term of two and a half years with a non-parole period of two years. For the third charge I would impose a sentence of four years with a non-parole period of two years.

39 I turn then to consider the totality of sentence appropriate and the question of cumulation. In my opinion, the fixed term for the first charge should commence on 18 January 2003 and expire on 17 January 2006. The fixed term on the second charge should commence on 18 January 2004 and expire on 17 January 2007. The sentence on the third charge should commence on 18 January 2005 and expire on 17 January 2009 with a non-parole period of two years to expire on 17 January 2007. The sentence on the fourth charge should also commence on 18 January 2005 and expire on 17 July 2007 with a non-parole period of two years to expire on 17 January 2007. Thus, the total sentence will be for a period of six years imprisonment with a non-parole period of four years expiring on 17 January 2007.

Orders

1. Grant leave to appeal;

2. Appeal allowed;

3. Quash the sentences imposed by his Honour Acting Judge Kinchington on 5 August 2003;

4. In lieu thereof the applicant is sentenced as follows:

(1) Armed robbery on 12 October 2002; a fixed term of three years imprisonment to commence on 18 January 2003, the date on which the applicant was taken into custody, and expire on 17 January 2006;
(2) Aggravated take and drive conveyance (car-jacking) on 18 January 2003; a fixed term of three years imprisonment to commence on 18 January 2004 and to expire on 17 January 2007;
(3) Aggravated robbery on 18 January 2003; a term of four years imprisonment to commence on 18 January 2005 and to expire on 17 January 2009 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007;
(4) Use of offensive weapon to resist lawful apprehension on 18 January 2003; a term of imprisonment of two years and six months to commence on 18 January 2005 and expire on 17 July 2007 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007.

40 As I have said this produced an effective sentence of six years with a non-parole period of four years which takes account of special circumstances.

41 SPERLING J: I agree with Sheller JA.

42 ADAMS J: I agree with Sheller JA.

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Last Modified: 09/02/2004