Regina v Fabrizio Calderoni [2000] NSWCCA 511

New South Wales Court of Criminal Appeal

CITATION : Regina v Fabrizio Calderoni [2000] NSWCCA 511 FILE NUMBER(S) : CCA 60498/2000 HEARING DATE(S) : 22 November 2000 JUDGMENT DATE : 22 November 2000

PARTIES : Regina Fabrizio Calderoni JUDGMENT OF : Sully J at 1; Bell J at 30; Whealy J at 31

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70034/97 LOWER COURT JUDICIAL Greg James J OFFICER :

COUNSEL : R. Cogswell SC - Crown P. Hamill - Respondent SOLICITORS : S. E. O'Connor - Crown Russo & Coburn - Respondent

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 DECISION : Crown appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60498/00

SULLY J BELL J WHEALY J

22 November 2000

REGINA v Fabrizio CALDERONI

JUDGMENT

1 SULLY J:: This is a Crown appeal against sentence. It challenges a sentence passed upon Mr Fabrizio Calderoni ("the respondent") by his Honour Greg James J of this Court on 16 June last year. 2 The material facts are these. The respondent was tried and acquitted on a charge of murder. During the course of his trial he gave sworn evidence. Some of the evidence thus given was capable of amounting to admission evidence of his inculpation in a robbery in company. 3 Following his acquittal on the murder charge, that acquittal having occurred on 24 March last, an ex officio indictment charging robbery in company was preferred by the Attorney General against the respondent; and in due course the respondent pleaded guilty before James J to that charge. 4 Such an offence contravenes section 97 of the Crimes Act 1900; and it attracts upon conviction a statutory maximum penalty of imprisonment for twenty years. His Honour dealt with the respondent, effectively, by sentencing him to two years' imprisonment without a non-parole period, and by thereupon suspending in manner provided by the recently enacted Crimes (Sentencing Procedure) Act 1999, the operation of the whole of that two year sentence. That is the essential background against which the present Crown appeal is brought. 5 So far as concerns the relevant objective facts surrounding the robbery in company, they are sufficiently stated in the following extracts from his Honour's remarks on sentence. "The offender met Graeme Brown in Alice Springs about the end of 1986 when he and his then partner, Sandy Hamilton, stayed at a house occupied by Brown and one 'Roslyn Rogers ('Ros') also known as 'Patricia Adams'. He returned to Brisbane in November 1987 and his relationship with Ms Hamilton ceased in late 1990. The offender started seeing a Karen Skinner. At the beginning of 1991, he and Ms Skinner went to Long Jetty and stayed with 'Ros' for a while before renting a place next door. About June 1991, Brown visited 'Ros' a couple of times. The offender saw him about three to four days prior to 11 June 1991 and again on 11 June 1991. At the earlier meeting, Brown told the offender that 'someone had ripped him off ... he wanted it back ... and might want me to help'. Further, 'Ros' had lent him $7,000 and she wanted it back. The offender said he understood Brown to mean that, 'I would go along with him, just to see him get his money back - there could be a fight or anything'. The offender knew he might have to be involved in violence on someone to get money. If they were going to beat (Brown) up or something, 'I probably would have stepped in'. Brown mentioned to the offender that a drug dealer was going to buy some drugs, or that is what he had been given to think. Brown had told him he had grass for sale. Brown had arranged for the drug dealer to come to Wyong. The victim, Marneros, apparently came to Wyong to fulfil that role. About 8.00 pm on 11 June 1991, Brown turned up at the offender's residence and about an hour later left with the offender and Skinner in the offender's car. Brown dropped the offender and Skinner off at a street near the railway line at Wyong saying, 'wait here, I'll turn up later on with this guy'. The offender and Skinner waited in the dark for about two hours. A car they did not recognise came up the road and stopped nearly opposite their position. The offender saw two people in the car.