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Court of Criminal Appeal 23 August 2004

R v MASTRONARDI

[2004] NSWCCA 273

Assault & violenceTheft & property
APPEAL AGAINST SENTENCE FOUR OFFENCES QUESTIONS OF CUMULATION AND CONCURRENCE EFFECT ON TOTAL SENTENCE

Citation: Mastronardi v R [2004] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 23 August 2004
Judge(s): Sheller JA, Sperling J, Adams J

Background

The applicant pleaded guilty to four offences committed across two separate occasions. On 12 October 2002, he robbed a newsagency armed with a knife. On 18 January 2003, he carjacked a vehicle by threatening the driver with a syringe, robbed a cashier at a supermarket, and then used a syringe to resist apprehension by a trolley attendant after falling while fleeing.

The applicant was sentenced in the District Court on 5 August 2003 by Acting Judge Kinchington. The sentences were structured with partial concurrency and partial cumulation, producing a total effective sentence of fourteen years with an effective non-parole period of ten and a half years, representing exactly three-quarters of the total term.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentence imposed for the aggravated robbery on 18 January 2003 and the overall total sentence were manifestly excessive.

  • Whether the sentence of ten years imprisonment (with a six-and-a-half-year non-parole period) for the aggravated robbery of 18 January 2003 was outside the proper range of the sentencing discretion.
  • Whether the total effective sentence of fourteen years was manifestly excessive, having regard to questions of cumulation, concurrence, and totality.
  • What role special circumstances (specifically the applicant's need for strict protection in custody and serious psychological sequelae from a prior prison assault) should play in setting the non-parole period.

Decision

The Court confirmed the principle, drawn from Pearce v The Queen, that when sentencing for multiple offences a judge must fix an appropriate sentence for each offence individually and then address cumulation, concurrence, and totality as separate steps. The sentencing judge had followed that process, but the Court found a significant unexplained disparity in the result.

The Court noted that the armed knife robbery attracted a fixed term of four years, yet the aggravated robbery involving a brief struggle causing only minor injuries was sentenced at ten years imprisonment with a six-and-a-half-year non-parole period. The sentencing remarks did not explain the difference. The Court held that the ten-year sentence for the third offence was, even allowing full weight to both the objective and subjective factors the sentencing judge had identified, outside the range of a proper exercise of the discretion and had to be quashed. That error infected the total sentence, rendering it manifestly excessive.

The Court determined that five years imprisonment with a three-year non-parole period was the appropriate starting point for both the first and third counts. However, the applicant's particular circumstances, namely his need for strict protection and serious psychological harm flowing from a previous assault in prison, constituted special circumstances justifying adjustment of the non-parole period below the statutory default proportion. Taking those factors into account, the Court resentenced the applicant by restructuring the commencement dates of each sentence to produce appropriate partial cumulation, resulting in a total effective sentence of six years with a non-parole period of four years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Acting Judge Kinchington on 5 August 2003 quashed.
  • In substitution, the applicant was resentenced as follows:
  • Armed robbery (12 October 2002): Fixed term of three years, commencing 18 January 2003, expiring 17 January 2006.
  • Aggravated take and drive conveyance/car-jacking (18 January 2003): Fixed term of three years, commencing 18 January 2004, expiring 17 January 2007.
  • Aggravated robbery (18 January 2003): Four years imprisonment commencing 18 January 2005, expiring 17 January 2009, with a two-year non-parole period expiring 17 January 2007.
  • Use of offensive weapon to resist lawful apprehension (18 January 2003): Two years and six months commencing 18 January 2005, expiring 17 July 2007, with a two-year non-parole period expiring 17 January 2007.
  • Total effective sentence: six years imprisonment with a non-parole period of four years.

Key Takeaways

  • A sentencing judge dealing with multiple offences must fix an appropriate individual sentence for each offence before addressing cumulation, concurrence, and totality as distinct considerations, consistent with Pearce v The Queen (1998) 194 CLR 610.
  • Where sentences for separate offences of comparable gravity are dramatically different, and the sentencing remarks offer no explanation for that disparity, an appellate court may find the higher sentence falls outside the proper range of discretion.
  • Special circumstances affecting an offender's experience of custody, such as a need for strict protection and psychological harm from a prior prison assault, are relevant to the proportion between the non-parole period and the head sentence.
  • In allowing a sentence appeal, the Court of Criminal Appeal will itself resentence the offender, applying the same principles of totality and cumulation that the original sentencing court was required to apply.
  • An effective non-parole period set at exactly three-quarters of the total effective sentence does not automatically satisfy the statutory requirements; the court must actively consider whether special circumstances warrant a different proportion.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 44
- Crimes (Sentencing Procedure) Amendment (Standing Minimum Sentencing) Act 2002 (NSW)
- Crimes Act 1900 (NSW)

Cases
- 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