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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mastronardi

Details

AGLC: R v Mastronardi [2004] NSWCCA 273
Case: [2004] NSWCCA 273
Decision Date: 23 August 2004

CaseChat Overview and Summary

In the case of R v Mastronardi, the appellant was convicted of four offences and sentenced by the trial judge. The appeal against sentence raised questions regarding the appropriate cumulation and concurrence of the sentences for each offence. The appellant contested whether the sentence imposed for aggravated robbery was outside the range of a proper exercise of sentencing discretion, and if so, how this would affect the total sentence. Additionally, the appellant argued for the consideration of special circumstances to be taken into account in the sentencing process.

The court considered whether the trial judge had correctly applied the principles of sentencing in relation to the cumulation and concurrence of sentences. The key legal issue was whether the sentence for aggravated robbery was excessive and not reflective of the principles of justice and fairness. The court was required to determine if the total sentence was appropriate, taking into account the special circumstances presented by the appellant.

The court found that the trial judge had correctly applied the principles of sentencing and that the sentences for each offence were within the appropriate range of a proper exercise of sentencing discretion. The court held that the special circumstances presented by the appellant did not warrant a departure from the sentences imposed by the trial judge. The appeal against sentence was dismissed, and the original sentences were upheld.

No additional orders were made by the court beyond the dismissal of the appeal against sentence. The original sentences imposed by the trial judge were confirmed as appropriate, and the special circumstances raised by the appellant were found not to warrant any alteration to the sentences.

Orders