R v Ghisolfi [2002] NSWCCA 166

New South Wales Court of Criminal Appeal

CITATION : R v Ghisolfi [2002] NSWCCA 166 FILE NUMBER(S) : CCA 60553/01 HEARING DATE(S) : 09/05/02 JUDGMENT DATE : 9 May 2002

PARTIES : Regina (Resp) Lee Ghisolfi (App) JUDGMENT OF : Kirby J at 1; Smart AJ at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0318 LOWER COURT JUDICIAL Keleman DCJ OFFICER :

COUNSEL : L M B Lamprati (Crown/Resp) A C Haesler (App) SOLICITORS : S E O'Connor (Crown/Resp) D J Humphreys (App) CATCHWORDS : Criminal Practice & Procedure - Appeal against severity of sentence - Armed robberies - Breach of parole - Parole in respect of offences of a similar kind - Whether sentence within discretion LEGISLATION CITED : Crimes Act 1900 CASES CITED: Veen [No 2] v The Queen (1987-88) 164 CLR 465 R v AEM Snr & Ors [2002] NSWCCA 58 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60553/01

KIRBY J SMART AJ

Thursday 9 May 2002 REGINA v Lee GHISOLFI Judgment 1 KIRBY J: Lee Ghisolfi (the applicant) seeks leave to appeal against a sentence imposed by Keleman DCJ on 15 August 2001.

The Charges 2 Mr Ghisolfi pleaded guilty to two charges of armed robbery with an offensive weapon (s97(1) Crimes Act 1900), the weapon being a knife. He asked his Honour to take account of two further charges of armed robbery with an offensive weapon, the weapon in each case again being a knife (Form 1). The maximum penalty under the section is 20 years imprisonment. Mr Ghisolfi was sentenced, on count 1, to 10 years imprisonment with a non-parole period of 7-1/2 years, to commence on the date of his arrest, 26 January 2001. On the second count, taking account of the offences on Form 1, Mr Ghisolfi was sentenced to a concurrent term of imprisonment of 12 years, with a non-parole period of 9 years. 3 The offences followed a pattern. Each involved a small business run by a woman. Mr Ghisolfi presented with a large knife. He demanded and was given money. 4 The offences took place at a time that Mr Ghisolfi was on parole, having been released on 27 December 2000. The parole was for 2-1/2 years. It was to expire on 27 June 2003. The first offence (part of the Form 1) occurred on 19 January, that is within three weeks of Mr Ghisolfi's release. The second (also on the Form 1) took place the next day, 20 January 2001. The offence in count 1 was committed less than a week later, the 25 January 2001. The offence in count 2, occurred the day after, 26 January 2001. A matter of hours after the fourth robbery, Mr Ghisolfi was arrested. He was returned to custody, where he has remained. 5 Turning to the circumstances of each offence, the offence charged in count 1 took place, as mentioned, on 25 January 2001. Mr Ghisolfi entered a hairdressing salon. There were four women in the salon, the owner and three customers. He produced a large knife which had been concealed inside his trousers. He demanded money. The women scattered, leaving the salon by the rear door. One of the customers left a handbag behind. Mr Ghisolfi took the handbag and left the salon. The bag contained a mobile phone and cash ($140), as well as credit cards. 6 Mr Ghisolfi is said to have distinctive features. He was identified to the police by the customer who owned the handbag, she having been shown a selection of photographs. 7 The second offence occurred the next day, 26 January 2001. It replicated many of the features of the earlier offence. The target on this occasion was a kiosk at the St George Hospital. Mr Ghisolfi waited until the customers had left the kiosk, and the female shop assistant was alone. He then entered the kiosk and produced a knife. He demanded the contents of the cash register. The money was placed in a plastic bag which he was carrying. He escaped with approximately $700. The shop assistant was shown a selection of photographs by the police. She identified Mr Ghisolfi. 8 The offences on the Form 1 again employed the same modus operandi. On 19 January 2001, the applicant entered a hairdressing salon. There were two women in the salon, a customer and the owner. Mr Ghisolfi produced a knife. He demanded money. He was given $300 and then left. Again, he was identified by the salon owner from a selection of photographs. He also left a fingerprint on the front door of the salon. 9 The second offence on the Form 1 took place the next day. Mr Ghisolfi entered a hairdressing salon. There were two women inside. He demanded money, brandishing a knife. Again, he was identified from photographs by the salon owner. 10 Within hours of leaving the salon Mr Ghisolfi was recognised by police as matching the description provided by those who had been robbed. He was interviewed. He denied the offences. He was returned to custody. Ultimately, he pleaded guilty once certain rulings had been made on the admissibility of evidence.