Reported Decision : 111 A Crim R 306 New South Wales Court of Criminal Appeal CITATION : Regina v Fabian MASTRONARDI [2000] NSWCCA 12 FILE NUMBER(S) : CCA 60490/99 HEARING DATE(S) : 9 February 2000 JUDGMENT DATE : 16 February 2000 PARTIES : Regina Fabian Mastronardi JUDGMENT OF : Grove J at 1; Sully J at 2; Simpson J at 33 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/3020 LOWER COURT JUDICIAL Moore DCJ OFFICER : COUNSEL : L.M.B. Lamprati - Crown R.A. Johnson - Respondent SOLICITORS : S. E. O'Connor - Crown Mark Hodges - Respondent LEGISLATION CITED : Crimes Act 1900 GDP (1991) 53 A Crim R 112 CASES CITED: Lattouf: unreported, 12 December 1996, CCA Reg v Crotty: unreported, 28 February 1994, CCA Reg v Henry & ors (1999) 46 NSWLR 346 DECISION : Crown appeal against sentence allowed; recognisances granted on 12 August 1999 set aside; respondent re-sentenced for offence of armed robbery to imprisonment for 3 years to be served by way of periodic detention; respondent re-sentenced for offence of concealing a serious offence to imprisonment for 1 year to be served by way of periodic detention; respondent to report to the Periodic Detention Centre at Parramatta not later than 5.00 p.m. on Friday 25/2/2000 to commence the serving of aforesaid sentences. IN THE COURT OF CRIMINAL APPEAL 60490/99 GROVE J SULLY J SIMPSON J 16 February 2000 REGINA v Fabian MASTRONARDI JUDGMENT 1 GROVE J: I agree with Sully J. IN THE COURT OF CRIMINAL APPEAL 60490/99 GROVE J SULLY J SIMPSON J 16 February 2000 REGINA v Fabian MASTRONARDI JUDGMENT 2 SULLY J: This is a Crown appeal against the alleged inadequacy of a penalty imposed on Mr. Fabian Mark Mastronardi, ["the respondent"], on 12 August 1999, by his Honour Judge Moore sitting in the District Court at Campbelltown. 3 The respondent pleaded guilty before his Honour to two charges. One charge was a charge of armed robbery, a contravention of s.97(1) of Crimes Act 1900, attracting upon conviction a maximum penalty of penal servitude for 20 years. The other charge was a charge of concealing a serious offence, a contravention of s.316(1) of the Crimes Act 1900, attracting on conviction a maximum penalty of imprisonment for 2 years. In respect of each matter his Honour dealt with the respondent by granting him a recognisance, himself in the sum of $1,000, to be of good behaviour for a period of 3 years dating from 12 August 1999. The recognisance was conditioned upon the respondent's accepting the supervision of the Probation and Parole Service; and it was further conditioned upon the respondent's entering what is called the Bridge Programme at the William Booth Institute, an institution operated by the Salvation Army. 4 The facts concerning the s.316 matter are as follows. 5 On Sunday 23 August 1999 the respondent met up with two other men at Cabramatta. The respondent had at that time no place of abode, and he was offered accommodation by the other two men. The three of them, in company, entered a taxi driven by a Mr. Kenneth Page. One of the respondent's companions sat in the front passenger seat of the taxi; and the respondent and third man sat in the back seat. It seems that the respondent believed, at this particular time, that his two companions had sufficient money to pay for the proposed taxi journey that they were undertaking, and that they were in fact proposing to proceed to the accommodation that they had suggested they could make available to the respondent. Soon after the journey commenced, however, the man sitting in the front seat beside the driver produced a knife and demanded money from the driver. He told the driver that one of the other passengers had AIDS and was carrying a syringe. At that moment the man seated beside the respondent in the rear of the taxi produced, in fact, a syringe. Mr. Page thereupon handed over some $95 in cash. The man seated beside him took a further $16 in change and, as well, Mr. Page's mobile phone. Mr. Page was directed to stop the taxi at a particular point near a street in Cabramatta; and the respondent and his two companions fled thereupon from the taxi. 6 On 9 November 1998 the respondent was interviewed by police in connection with this incident. The respondent admitted that he had been present during the robbery. The respondent said that he had not himself participated in any way in the robbery; and Judge Moore dealt with the respondent upon the basis that such was the fact. It was, of course, incontestable that the respondent had not reported to the police, or to any other proper authority, his knowledge of this very serious criminal offence. 7 The charge of armed robbery to which the respondent pleaded guilty related to an incident that occurred on 24 August 1999, that is to say the very day after the robbery of Mr. Page on 23 August. The relevant facts are as follows. 8 On the evening of 24 August 1998 the respondent again met with the other two men. They discussed the robbery of 23 August. The other two men impressed upon the respondent the ease with which that earlier robbery had been accomplished. They invited the respondent to join them in carrying out a further robbery. The respondent agreed to do so upon the basis of a promise that he would receive, for his part in that projected enterprise, sufficient money to purchase a shot of heroin. 9 At about 8.20 p.m. on that evening the respondent and his two companions entered a taxi driven by a Mr. Ratry So. The three men took up positions identical with those that they had occupied in Mr. Page's taxi on the preceding evening. In due course the man seated in the front seat of the taxi produced a large knife, threatened Mr. So, and robbed him of $120. As on the previous evening, the taxi driver was directed to a particular point at which the taxi was stopped; and the respondent and his two companions decamped. 10 The respondent was interviewed by the police on 9 November 1998 in connection with this matter. He made full admissions of his part in the offence. In explanation of his having taken part in the carrying out of the robbery, the respondent told the police that he had done it only because he wanted drugs. He said that he had been sick; and he stressed that he had at no time carried, or intended to use, a weapon of any kind. 11 The respondent was born on 27 August 1971. He was, therefore, within a couple of weeks of his 29th birthday when he stood for sentence before Judge Moore. He is now aged 29 years and some 6 months. The respondent, when he stood for sentence, had no prior criminal convictions. He had a history of drug abuse; but he had, also, a history of having made at least some attempt to overcome that problem. There is evidence that the respondent had, in many ways, had a sad and unstable personal history. 12 There was evidence before Judge Moore that the respondent, while in custody awaiting sentence, had been the subject of what his Honour described as having been "an extremely vicious attack by a number of men which resulted in his spending three to four weeks in the gaol hospital". The relevant medical records were available to his Honour; and there is no denying that the injuries which were occasioned to the respondent by this assault were substantial. 13 His Honour had before him a report dated 7 August 1999 from Dr. Sydney Oen. His Honour accepted the opinions expressed by Dr. Oen, who is a Consultant Psychiatrist. Dr. Oen's report was, to speak generally, optimistic in its assessment of the respondent's psychiatric and personal prognoses. The report concluded as follows: "Mr. Mastronardi told me that he had a good relationship with his Probation and Parole Officer and that with the appropriate support he thought he could avoid getting back into a cycle of escalating drug taking and criminal behaviour. In my opinion the advantages to Mr. Mastronardi of serving his term of imprisonment by way of periodic detention would include the ongoing support of his family which clearly has impacted upon his sense of responsibility towards them; his ability to be productively engaged in the pursuit of the stable and constructive life that he is attempting to achieve; and his demonstration of his intention to do this by regular attendance at appointments with his Probation and Parole Officer and myself." 14 His Honour was impressed, also, by evidence that was given before his Honour by Major Hindle of the Salvation Army. Major Hindle told his Honour that he had made an assessment of the respondent from the point of view of the respondent's suitability for admission into the Bridge Programme at the William Booth Institute; and that he had concluded that the respondent was suitable to be admitted to that particular programme. Major Hindle described as follows the structure of the particular programme: "…………….the program itself, four weeks in the first stage and that's the stabilising stage for the program detoxification included and there's other things like that which brings them to a complete substance- free setting in their own life for the main rehabilitation stage at Miracle Haven. And that's six months up there at the farm and fortunately Mr. Mastronardi knows all about that, Mastronardi knows all about that. Three months back at the bridge program back in the city where we assimilate them back to the community, their families, work, employment, other things, accommodation. And then graduate them with a $500 donation to help them get on with their lives." 15 This evidence of Major Hindle carried great, and if I may respectfully say so understandable, weight with his Honour, as is apparent from the following extract from his Honour's remarks on sentence: "Major Hindle's opinions carry a great deal of weight, not just because of his expertise, but because of his record, that is, an extremely high percentage of those whom he assesses as suitable for the Bridge program complete it. In some years none of the persons whom he has accepted into the program have failed and in other years only a handful. And he had made the assessment in Mastronardi's case with the full knowledge of all the factors in this matter including his earlier failure at the same program." 16 In the opening paragraph of his Honour's remarks on sentence, his Honour summarises conveniently the considerations which, in combination, had persuaded his Honour to the view that a non-custodial sentence of any kind was the appropriate way of dealing with the respondent. His Honour refers to: "……………….the time that you have already spent in gaol and the hard time that you've spent in gaol, and the peculiar factors of your case and your good record right up until the age of 27,………………" 17 The first question to be considered by this Court is whether the Crown has demonstrated error in the learned primary Judge's process of reasoning. In my opinion, error both patent and latent has been demonstrated. 18 So far as patent error is concerned, I am of the opinion that two such errors are identifiable. 19 First, his Honour dealt with the respondent upon the basis that "(a)lthough he is 27 years of age his case attracts the principles which apply to young people. With his new found maturity of 27 years of age and with a clear record, his case should be regarded analogously with the case of young people, …………". 20 In my opinion, and with respect to his Honour, that assessment was fundamentally misconceived. There was, so far as I can see, no evidence that the respondent was, in a precise sense, mentally deficient or retarded. I do not believe that the evidence shows, in any credibly particular sense, that the respondent was notably immature for his age; but, even if the contrary be accepted, there is a world of difference between the proposition that a 27 year old man is immature, and the proposition that the same man is so emotionally retarded that he is fairly to be regarded as a young person in the sense contemplated by the particular authorities, - GDP (1991) 53 A Crim R 112, and Lattouf; unreported, 12 December 1996, Court of Criminal Appeal, - to which his Honour expressly refers. Even were the contrary to be supposed, deliberate participation in an armed robbery is, in the sense discussed by the relevant authorities, an adult crime even when committed by comparatively young people. In my opinion, it is timely to make plain, yet again, that youth, - whether it is real, or merely comparative, or defined with a generous elasticity, - is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of their conduct. 21 Secondly, his Honour erred, in my respectful opinion, by failing to give any, or any sufficient, consideration to the appropriateness of imposing upon the respondent a sentence of imprisonment to be served by way of periodic detention. It is plain, on the face of Dr. Oen's report and to look no further, that the respondent's own consultant psychiatrist regarded periodic detention as an appropriate, - although, of course, not necessarily the only appropriate, - way of dealing with the present respondent. I acknowledge respectfully his Honour's undoubted experience as a sentencing Judge; and I acknowledge that it ought not lightly to be inferred that an experienced sentencing Judge has not considered, either sufficiently or at all, the periodic detention option. I think, however, that in a case of the present kind, it is reasonable to expect that a sentencing Judge, if he or she considers and rejects the periodic detention option, ought to explain, if only in brief terms, why that option has been seen as inappropriate. In the absence of any such explanation, I do not think that it is unreasonable to infer that the option has either not been considered at all, or has been insufficiently considered. 22 In addition to the foregoing patent errors, there is, as I respectfully think, apparent latent error in his Honour's approach. The penalty imposed by his Honour is, in my respectful opinion, on its face manifestly inadequate to the gravity of the offences with which his Honour was dealing. 23 It is not necessary now to denounce in any extended way the gravity of the crime of armed robbery; or to re-state in any extended way the added seriousness with which that crime is regarded by the Courts when the victim is a taxi driver or some similar, and potentially vulnerable, service provider. There are plenty of reported decisions of variously constituted Benches of this Court that say all that needs to be said in those respects. It is, perhaps, timely to recall, - but a general reference only will be sufficient for present purposes, - the principles approved by this Court in Reg v Crotty: unreported, Court of Criminal Appeal, 28 February 1994. The relevant statements of principle appear in five numbered paragraphs at pages 4, 5 and 6 of my own judgment, with which Gleeson CJ and Newman J expressly concurred. In my opinion, to grant a recognisance in a case such as the present one simply flies in the face of the principles that are there stated by this Court. A fortiori in the light of the subsequent guideline judgment in Reg v Henry & ors. (1999) 46 NSWLR 346. 24 At page 9 of the judgment which I delivered in Crotty, I made some observations, - with which, I observe, Gleeson CJ and Newman J expressly concurred, - concerning some aspects of the problem which arises when it is left to this Court, in the context of a Crown appeal against sentence, to do what should have been done at first instance by the particular primary sentencing Judge. It is not, I think, necessary to re-state those comments in full; but they are certainly relevant to the present matter; and, accordingly, I draw attention to them. 25 For the whole of the foregoing reasons, I have come to the conclusion that such error has been demonstrated in the primary sentencing process as calls for the intervention of this Court. 26 In that connection, two further pieces of evidence were placed before this Court. One is a report, dated 8 February 2000, from Dr. Oen. The other is a report from the Programme Director of the Bridge Programme at the William Booth Institute. 27 Dr. Oen's up-dated report is fairly brief, and it is convenient to quote the salient parts of it: "I have seen Fabian on three occasions in the last few months. He told me that he had withdrawn from his drug rehabilitation program as he felt that the rate at which they were requesting him to reduce his Methadone was faster than he felt he could manage. He indicated that he felt that if this went on for too long he would ultimately reuse the illicit drugs that he had originally been troubled with. He indicated that he had an alternative plan to move to Gosford and commence study. He indicated that he thought that he should maintain his Methadone usage at its current level to try and maintain some stability whilst these other changes were put into place. We discussed appropriate psychiatric follow-up for him in Gosford and I will be assisting him with this in the future. I do not have another appointment to see him at this stage. At the present time he is occasionally troubled by depressed mood and negative thinking but has developed strategies to combat these. He is hopeful that he will be able to maintain a reasonably positive frame of mind in order to successfully complete his studies." 28 The document from the William Booth Institute is, in my opinion, very significant. It was obtained on the morning of the hearing of the appeal, and in response to an indication by the Court that it would be of assistance to have some up-dated view-point of the Programme Director of the programme into which it was being proposed that the applicant might be admitted. Once again, it is, I think, better to quote, rather than to paraphrase, the relevant material. It is in the following terms: "This letter follows a conversation this morning with ………, Barrister for Fabian Mastronardi. I have know Fabian since September 1996 when he first entered the Salvation Army's Bridge Programme. He only stayed 17 days before leaving of his own choice. I was able to know Fabian better in the course of his second admission from July 1997 to February 1998. He does have many good qualities. Yet I must also say that he seems determined to return to his self-sabotaging ways. On that occasion he almost completed the programme, but finally had to be discharged for disciplinary reasons not long before he would have formally completed it. In August 1998 and again in September 1999 Fabian re-entered the programme but only stayed a few days before absconding or discharging himself. Although we in the Bridge Programme believe everyone deserves more than one chance, Fabian has had several. In these days of having long waiting lists we are reluctant to give the same client several opportunities while other persons may be denied their first chance. Nonetheless, we will give Fabian one more chance. I must respectfully tell the Court, and Fabian, that he will have no further opportunity to access the Bridge Programme while legal matters are outstanding, if on this occasion he either leaves of his own choice prematurely or does something requiring us to discharge him. Turning to practical matters, there will be some time before Fabian's turn would come up on our waiting list. We would prefer that he remain in custody until his turn is reached, which on present estimates would be some weeks. However, if the Court wishes (and we are so informed) we would admit him ahead of others, in which case we could do so within the next day or so" 29 It is, in my opinion, a real question whether this Court ought not now to re-sentence the respondent by imposing upon him a sentence of full time custody. Not without some hesitation, - for, as I stress again, any offence of armed robbery is, in my opinion, a serious breach of the criminal law ordinarily calling for such a sentence, - I have come to the conclusion that it would be just, in the circumstances of this case and in the events that have happened, to impose, instead of a sentence of full-time custody, a sentence of imprisonment to be served by way of periodic detention. 30 There are several considerations that have brought me to that conclusion. First, six months have now passed since the respondent was dealt with by Judge Moore. To send now into full-time custody a person with the respondent's psychiatric problems, who is attempting, however fitfully, to deal with a drug problem, and who has been undoubtedly the subject of unprovoked physical violence while previously in custody, is not appropriate. Secondly, I think that it is fair to do whatever can be done properly in order to give the respondent an opportunity of continuing his contacts with Dr. Oen. Thirdly, it is at least on the cards, (to borrow from Gibbs CJ), that the discipline of periodic detention, combined with on-going assistance from Dr. Oen, will settle the respondent down to the point where he can undertake realistically such further rehabilitation as is appropriate. 31 I wish to emphasise that nothing that I have said should be understood as detracting in any way from the guideline principles established by the decision in Henry. My approach in the present case is very much conditioned by what I see as the need for this Court to pick up, once again, the pieces left after a failure at the primary sentencing level to apply correctly principles that have been stated repeatedly and clearly by various Benches of this Court. I have had in mind also, and as of course, the well established limitations that hedge about any Crown appeal against sentence. 32 For the whole of the foregoing reasons, I would favour the following orders: 1. That the Crown appeal against sentence be allowed. 2. That the recognisances granted on 12 August 1999 be set aside. 3. That the respondent be re-sentenced for the offence of armed robbery to imprisonment for 3 years to be served by way of periodic detention. 4. That the respondent be re-sentenced for the offence of concealing a serious offence to imprisonment for 1 year to be served by way of periodic detention. 5. That the respondent report to the Periodic Detention Centre at Parramatta not later than 5.00 p.m. on Friday 25 February 2000 for the purpose of commencing the serving by way of periodic detention of the aforesaid sentences. IN THE COURT OF CRIMINAL APPEAL 60490/99 GROVE J SULLY J SIMPSON J 16 February 2000 REGINA v Fabian MASTRONARDI JUDGMENT 33 SIMPSON J: I agree with the judgment of Sully J and with his reasons therefor. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.