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Court of Criminal Appeal 9 May 2002

R v Ghisolfi

[2002] NSWCCA 166

Theft & propertyPublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SEVERITY OF SENTENCE ARMED ROBBERIES BREACH OF PAROLE WHETHER SENTENCE WITHIN DISCRETION

Citation: R v Ghisolfi [2002] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 9 May 2002
Judge(s): Kirby J; Smart AJ

Background

The appellant pleaded guilty in the District Court to two charges of armed robbery using a knife, and asked the sentencing judge to take into account two further armed robbery charges on a Form 1 (a procedure by which additional charges are noted and considered without separate conviction). All four offences followed the same pattern: the appellant entered small businesses operated by women, produced a large knife, and demanded money.

All four robberies were committed within a single week in January 2001, less than a month after the appellant was released on parole. The parole had been granted in respect of earlier similar offences and had more than two years still to run. The appellant was arrested hours after the fourth robbery.

Keleman DCJ sentenced the appellant to 10 years imprisonment (non-parole period of 7.5 years) on the first count, and 12 years imprisonment (non-parole period of 9 years) on the second count, with both sentences running concurrently. The appellant sought leave to appeal, arguing the sentence was excessive.

  • Whether the aggregate sentence of 12 years with a 9-year non-parole period was within the sentencing judge's proper discretion for four armed robberies committed with a knife.
  • Whether the sentence impermissibly incorporated an element of preventative detention.
  • Whether the objective seriousness of the specific offences justified sentences of this magnitude, given the maximum penalty of 20 years under s 97(1) of the Crimes Act 1900.

Decision

The appellant's counsel conceded that the sentencing judge's remarks were comprehensive and careful, and that the principles applied were correct. The sole ground of appeal was that the resulting sentence was simply too long, described in written submissions as "out of proportion to the objective seriousness of the offences."

Kirby J rejected the argument that the sentence was outside the available discretion. The appellant's extensive criminal history was a central factor. He had been sentenced in 1981 for six armed robberies, and in 1994 for five counts of armed robbery, one robbery with wounding, one attempted robbery, and seventeen further similar matters taken into account. Each time, he had reoffended shortly after release. The sentencing judge was entitled to treat this persistent pattern as a significant aggravating feature.

On the question of preventative detention, Kirby J acknowledged that a sentence cannot be inflated purely to protect the public, citing the principle from Veen [No 2] v The Queen. However, his Honour found that the sentence here reflected the objective gravity of the offences and the appellant's antecedents, and did not impermissibly exceed what those factors warranted.

Smart AJ agreed with the outcome, though his individual assessment of the appropriate sentence on each count differed slightly. On count 2 (with the Form 1 matters), Smart AJ considered the correct sentence was 10 years with a 7.5-year non-parole period; on count 1, he assessed the correct sentence as 8 years with a 6-year non-parole period. Applying partial concurrency and partial accumulation to reflect the totality of criminality, Smart AJ arrived at the same overall result: 12 years imprisonment with a 9-year non-parole period. He ultimately withdrew his separate reasons and agreed with the orders proposed by Kirby J.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence for armed robbery need not fall at the lower end of the range simply because the individual offences did not involve physical violence to victims; the use of a large knife, the targeting of women alone in small businesses, and the terror caused were all properly weighed.
  • A persistent history of similar offending, including prior convictions for multiple armed robberies and reoffending shortly after each release, is a weighty aggravating factor that can support a severe sentence without that sentence becoming impermissibly preventative.
  • The principle against preventative detention, affirmed in Veen [No 2] v The Queen, does not preclude a substantial sentence where the length is independently justified by objective seriousness and criminal antecedents.
  • Committing multiple offences within days of release on parole, and while parole still had years to run, was treated as a significant factor in assessing the overall sentencing response.
  • Where two judges on an appeal panel reach the same aggregate outcome by slightly different routes on individual counts, the result is the same: if the overall sentence falls within the available discretion, the appeal will be dismissed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery with offensive weapon; maximum penalty 20 years imprisonment)

Cases:
- Veen [No 2] v The Queen (1987-88) 164 CLR 465 (High Court; principles on preventative detention in sentencing)
- R v AEM Snr & Ors [2002] NSWCCA 58