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8
Court of Criminal Appeal 16 February 2000

Regina v Fabian MASTRONARDI

[2000] NSWCCA 12

Also reported as (2000) 111 A Crim R 306
Assault & violenceTheft & propertyFirearms & weapons

Citation: Regina v Fabian MASTRONARDI [2000] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 16 February 2000
Judge(s): Grove J, Sully J, Simpson J

Background

The respondent pleaded guilty in the District Court at Campbelltown to two offences: armed robbery (carrying a maximum of 20 years penal servitude) and concealing a serious offence (carrying a maximum of 2 years imprisonment). Both charges arose from incidents in August 1998 involving the robbery of taxi drivers in Cabramatta.

In the first incident, the respondent was present in a taxi when his two companions robbed the driver at knifepoint, threatening him with a syringe. The respondent did not report this offence to police. The following night, after his companions persuaded him of the ease of the enterprise, the respondent joined them in robbing a second taxi driver. He participated in exchange for money to purchase heroin, though he did not personally carry or use a weapon.

At first instance, Judge Moore sentenced the respondent by granting recognisances (a form of conditional release requiring good behaviour, not a term of imprisonment) in the sum of $1,000 for three years, conditioned on supervision by the Probation and Parole Service and participation in a Salvation Army rehabilitation programme. The Crown appealed, contending those sentences were manifestly inadequate.

  • Whether the recognisance sentences imposed by Judge Moore were manifestly inadequate for offences of armed robbery and concealing a serious offence, having regard to established sentencing principles.
  • What sentence, if any, should be substituted on a Crown appeal, taking into account the respondent's personal circumstances, the passage of time since original sentencing, and the limitations that apply to Crown appeals.

Decision

The Court of Criminal Appeal allowed the Crown appeal. Sully J, with whom Grove J and Simpson J agreed, held that the recognisance sentences fell well below the range that could properly be imposed for offences of this nature. The Court noted that armed robbery is a serious offence attracting a maximum of 20 years, and that the guideline principles established in Reg v Henry & ors (1999) 46 NSWLR 346 had not been correctly applied at first instance.

Despite finding the original sentences inadequate, the Court declined to impose full-time custodial sentences. Several factors weighed in that direction: approximately six months had elapsed since the original sentencing; the respondent had psychiatric difficulties; he had been the victim of a serious unprovoked assault while previously in custody; and he was engaged in ongoing treatment with a consultant psychiatrist. The Court considered it appropriate to impose imprisonment to be served by way of periodic detention rather than full-time custody, in order to allow the respondent to maintain his therapeutic relationships and continue rehabilitation.

Sully J was careful to emphasise that this outcome did not dilute the guideline principles in Henry. The Court's approach was expressly conditioned on the particular circumstances of the case, including the need to address what was described as a failure at the primary sentencing level to apply well-settled principles.

Orders Made

  • The Crown appeal against sentence was allowed.
  • The recognisances granted on 12 August 1999 were set aside.
  • The respondent was re-sentenced for armed robbery to 3 years imprisonment, to be served by way of periodic detention.
  • The respondent was re-sentenced for concealing a serious offence to 1 year imprisonment, to be served by way of periodic detention.
  • The respondent was ordered to report to the Periodic Detention Centre at Parramatta no later than 5.00 p.m. on Friday 25 February 2000 to commence serving the sentences.

Key Takeaways

  • Recognisance sentences (conditional release bonds) for armed robbery were held to be manifestly inadequate, falling outside the range permissible under the Henry guidelines for that offence.
  • Where a primary sentencing court fails to correctly apply established guideline principles for serious offences, the Court of Criminal Appeal will intervene on a Crown appeal, even where the sentencing judge was impressed by compelling subjective material.
  • A sentence of imprisonment served by way of periodic detention may be substituted on a Crown appeal in place of full-time custody where, by the time of the appeal, significant time has passed and the offender's psychiatric condition, prior experience of custodial violence, and ongoing rehabilitation efforts make full-time imprisonment inappropriate.
  • The Court of Criminal Appeal confirmed that the well-established limitations on Crown appeals remain operative, even when the appeal is allowed and a more severe sentence is imposed.
  • Under s.97(1) and s.316(1) of the Crimes Act 1900, the gravity of offences such as armed robbery and concealing a serious offence must be reflected in the sentence, notwithstanding favourable psychiatric reports and the absence of prior convictions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s.97(1) (armed robbery) and s.316(1) (concealing a serious offence)

Cases:
- Reg v Henry & ors (1999) 46 NSWLR 346 (sentencing guideline judgment for armed robbery)
- GDP (1991) 53 A Crim R 112
- Lattouf (unreported, 12 December 1996, NSW Court of Criminal Appeal)
- Reg v Crotty (unreported, 28 February 1994, NSW Court of Criminal Appeal)