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District Court 19 August 2011

R v MAZZITELLI

[2011] NSWDC 129

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE PLEAS OF GUILTY ESCAPEE FROM MINIMUM SECURITY LIMITED PLANNING ARRESTED COMMITTING LAST OFFENCE

Citation: R v Mazzitelli [2011] NSWDC 129
Court: District Court of New South Wales
Date: 19 August 2011
Judge: Tupman DCJ

Background

The offender, a sentenced prisoner at Long Bay Correctional Centre, escaped from minimum security custody in April 2010 by scaling two perimeter fences using a discarded mattress to negotiate razor wire, then stealing a car. He was serving a sentence for robbery in company at the time. The escape was unplanned and arose partly from fear after prison doctors discovered a lump on his chest, which he feared was cancer.

While at large, the offender committed a series of armed robberies targeting convenience stores, pharmacies, and newsagencies across Sydney between June and July 2010. He carried a toy or replica firearm (which victims believed to be real) and, in some instances, a knife. He was arrested while committing the last offence. He committed the robberies to fund a serious drug addiction and acted in company with co-offenders.

The offender was committed for sentence on four substantive charges of aggravated armed robbery under s 97(2) of the Crimes Act, each accompanied by two further robbery-related offences on Form 1 documents, as well as one charge of escape from lawful prison custody under s 310B of the Crimes Act.

  • What aggregate sentence was appropriate under s 53A of the Crimes (Sentencing Procedure) Act for the four substantive aggravated armed robbery offences and associated Form 1 matters?
  • What individual notional sentences should be found for each robbery offence in the absence of an aggregate sentence, as required by s 53A(2)(b)?
  • What sentence was appropriate for the escape from custody charge, and how should it be structured given the mandatory accumulation requirement under s 57 of the Crimes (Sentencing Procedure) Act?
  • What discount applied for early pleas of guilty, including under the Criminal Case Conferencing Trial Act?
  • Did a special circumstance exist justifying a departure from the standard ratio between the non-parole period and the overall sentence?

Decision

Tupman DCJ found that all four armed robbery offences were serious. The aggravating features included: commission while on escape from prison; offending in company; use of both a replica firearm and a knife; targeting vulnerable retail workers; causing real fear to multiple victims; a lengthy prior criminal history including prior imprisonment for armed robbery; and the fact that the offender was arrested committing the last offence. Mitigating factors included the early guilty pleas, the utilitarian value of those pleas, the offender's drug addiction as context (though not excuse), some remorse, and rehabilitation prospects.

Her Honour applied a 25% discount for the early pleas, attributable both to the Criminal Case Conferencing Trial Act provisions and the general utilitarian value of early admissions. She identified notional individual sentences for each of the four substantive robbery charges as required by s 53A(2)(b), then imposed a single aggregate sentence for all four. The aggregate sentence was 10 years, comprising a non-parole period of 6 years and a parole period of 4 years. A finding of special circumstance was made, which justified the extended parole period to assist rehabilitation given the length of the total sentence.

The escape charge was treated separately. Her Honour characterised it as a less serious example of its kind: there was no planning, no sophisticated method, no threats to prison officers, and no risk to the prison population. However, general deterrence remained a significant consideration because minimum security prisoners exploit the particular trust placed in them. The sentence for escape was fixed at 2 years, with a non-parole period of 12 months. Pursuant to s 57 of the Crimes (Sentencing Procedure) Act, this sentence was fully accumulated, commencing at the expiration of the non-parole period for the robbery aggregate sentence.

The overall effect was a total period in custody of 7 years, with an overall parole exposure of 3 years across both sets of sentences. All sentences were backdated to commence on 26 January 2012.

Orders Made

  • The offender was convicted of all offences.
  • Aggregate sentence for the four substantive aggravated armed robbery offences (Sequences 7, 10, 11, and 14, each with two Form 1 offences): non-parole period of 6 years commencing 26 January 2012 and expiring 25 January 2018; parole period of 4 years commencing 26 January 2018 and expiring 25 January 2022; total aggregate term of 10 years.
  • Separate sentence for escape from lawful custody (Sequence 2): non-parole period of 12 months commencing 26 January 2018 and expiring 25 January 2019; parole period of 12 months commencing 26 January 2019 and expiring 25 January 2020; total term of 2 years.
  • The escape sentence was fully accumulated on the armed robbery non-parole period pursuant to s 57 of the Crimes (Sentencing Procedure) Act.
  • The offender was directed to be released to parole at the expiration of the non-parole period for the escape sentence.

Key Takeaways

  • Under s 57 of the Crimes (Sentencing Procedure) Act, a sentence for escape from lawful prison custody must commence at the expiration of the non-parole period for any other offences being sentenced at the same time, making full accumulation mandatory rather than discretionary.
  • Escape from minimum security custody is treated as a serious category of offending because it exploits the trust that underpins the prison classification system, meaning general deterrence carries significant weight even where the individual escape involved no planning or violence.
  • The District Court confirmed that s 53A requires the sentencing judge to make findings about the notional sentence that would have been imposed for each individual offence in the absence of an aggregate sentence, even where an aggregate is ultimately imposed.
  • A finding of special circumstance is available to extend the parole component of an aggregate sentence where the cumulative length of the total sentence makes a longer period of supervised reintegration appropriate.
  • A 25% discount for early guilty pleas was available where both the Criminal Case Conferencing Trial Act applied and the pleas carried general utilitarian value, with her Honour treating the two bases as complementary rather than separate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 97(1), 97(2), 310B
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(2), 53A, 57
- Criminal Case Conferencing Trial Act (NSW)

Cases: No cases were cited in the judgment.