R v Fonseka [2002] NSWCCA 324

New South Wales Court of Criminal Appeal

CITATION : R v Fonseka [2002] NSWCCA 324 FILE NUMBER(S) : CCA 60093/02 HEARING DATE(S) : 30 July 2002 JUDGMENT DATE : 30 July 2002

PARTIES : Regina Nishad Fonseka JUDGMENT OF : Sperling J at 1, 20; Greg James J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/1083 LOWER COURT JUDICIAL Downs ADCJ OFFICER :

COUNSEL : Mr P G Ingram for the Crown Mr C B Craigie SC for the Applicant SOLICITORS : Mr S E O'Connor for the Director of Public Prosecutions Mr D J Humphreys for the Applicant CATCHWORDS : Criminal Law - application for leave to appeal against sentence LEGISLATION CITED : Criminal Appeal Act 1912, s6 Henry (1999) 46 NSWLR 346 CASES CITED: Murchie (1999) 108 A Crim R 482 Thomson and Houlton (2000) 49 NSWLR 383 DECISION : Application for leave to appeal granted; Appeal dismissed.

- 5 -IN THE COURT OF CRIMINAL APPEAL 60093/02

Sperling J Greg James J

Tuesday, 30 July 2002 Regina v Nishad Fonseka Judgment 1 Sperling J: The applicant seeks leave to appeal against a sentence imposed by Downs ADCJ, sitting in the District Court Sydney on 22 February 2002. 2 On 14 January 2002 the applicant had appeared for trial in relation to one count of aggravated robbery in company. However, the indictment presented on that date consisted of one count of robbery in company. The applicant pleaded guilty to that count. He should be taken to have pleaded guilty at the earliest opportunity in these circumstances. 3 The maximum penalty for the offence charged is twenty years' imprisonment. 4 The sentence was for four years. His Honour found special circumstances on the basis that there were good prospects for rehabilitation and that the applicant required an extensive period under supervision on parole for this purpose. A non-parole period of two years was fixed. 5 The facts of the offence were shortly as follows. A woman was sitting in a parked vehicle at Surry Hills. She was holding a mobile phone. Two persons, including the applicant, approached the car. The second man - not the applicant - took hold of the woman's hand and wrenched the mobile phone from her. The applicant stood next to the other man while this was done. The two men then fled. 6 In the guideline judgment of Henry (1999) 46 NSWLR 346 it was held, as a guideline, that the sentence for armed robbery should fall within the range of four to five years' imprisonment. That was for a category of case with the following features: