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. The Issue on Appeal 11 The issue on appeal can be stated simply. Counsel for Mr Ghisolfi acknowledged that his Honour's remarks on sentence were a comprehensive and careful analysis of the relevant issues. His Honour correctly identified the principles which should guide him. The views he reached on various issues were views which were open to him. The only indicia of error, therefore, according to the applicant, was the length of the sentence. In written submissions, counsel for the applicant said this: "15. The sentence was a severe one. It was too severe. Twelve (12)years for four (4) armed robberies was out of proportion to the objective seriousness of the offences even taking into account as his Honour did all the aggravating features." 12 There was an element of preventative detention, which was impermissible. 13 The Crown contended otherwise. It said this: "9. ... There is no doubt that the sentences imposed on the applicant were severe. But severe penalties were called for in this case. It must not be overlooked, in assessing the sentences imposed on the applicant, that the maximum penalty for one armed robbery is 20 years imprisonment. Section 97(1) Crimes Act 1900." (emphasis in original) Past History 14 To understand the sentencing task which confronted his Honour, it is necessary to state in some detail Mr Ghisolfi's criminal past. He was born on 10 October 1961. He was almost forty when he faced these charges. He arrived in Australia from Italy at the age of nine. He first came before the Children's Court at the age of 13. He appeared thereafter from time to time. In 1980 and 1981 he was charged with a number of offences, including assault female and malicious injury. On some of the offences he was fined. On the charge of malicious injury, he was placed upon a recognizance for a period of 12 months. 15 On 1 October 1981, as Mr Ghisolfi was about to turn twenty, he came before the District Court. He was sentenced for six armed robberies to a term of imprisonment of 12 years. A non-parole period was fixed, which was effectively 3 years (expiring on 24 April 1984). It was the commencement of a period of incarceration which was to continue, with only short interruptions, to this day. 16 Soon after his release, Mr Ghisolfi offended again. On 21 September 1984, he was sentenced by the District Court for malicious wounding and break, enter and steal. The sentence was 2 years imprisonment. On this occasion a non-parole period was not specified. The sentencing Judge recommended that he not be released before 1 January 1986. 17 In June 1988, Mr Ghisolfi was convicted of assault occasioning actual bodily harm. He was placed on a 3 year recognizance. In the same month, he was sentenced by the District Court for malicious wounding. The sentence on this occasion was 4 years and 6 months imprisonment, with a non-parole period of 2 years. 18 Soon after his release on parole, Mr Ghisolfi again faced multiple charges. In August 1990, he was sentenced in the Local Court to 12 months imprisonment on three counts of stealing, three counts of making a false instrument, three counts of using a false instrument, as well as break and enter. At the same time he was sentenced to a further term of 2 years imprisonment for an offence of break, enter and steal. The non-parole period specified in respect of that offence was 12 months. That sentence was to be cumulative upon the first sentence of 12 months. 19 In April 1992, Mr Ghisolfi was sentenced to 6 months imprisonment for goods in custody. On 31 January 1994, he pleaded guilty before her Honour, Judge Karpin, to five counts of armed robbery, one count of robbery with wounding, and one of attempted robbery. He asked her Honour to take into account a further seventeen matters of a similar kind. The pattern in respect of each robbery was broadly the same. It was the same pattern that can be seen in the offences which are now under review, although involving a different weapon. Judge Karpin described that pattern in these words: "The Crown submits, and I am of the view, correctly, that this prisoner happened upon an efficient means of robbery. Armed with a syringe he entered a number of what appeared to be small shops in which, in all but one case, as far as I can tell from the facts, women were the victims. He presented the syringe, and on two occasions he also was armed with a knife. But his modus operandi was to enter the shop premises, produce the syringe, and made a demand for money." 20 These offences took place at the end of the parole which Mr Ghisolfi was then serving. Her Honour imposed a sentence which effectively was 10 years with a minimum term of 7-1/2 years, and an additional term of 2-1/2 years. Mr Ghisolfi was, as mentioned, released to parole on 27 December 2001. As set out above, he offended again within three weeks of his release. Within the month he was back in gaol. His Honour's Remarks on Sentence 21 His Honour recognised that the offences were most serious, and the more so because they occurred so soon after release on parole for offences of the same type. Plainly deterrence, both general and personal, was important. His Honour included in his remarks the following passage from Veen [No 2] v The Queen (1987-88) 164 CLR 465, as providing appropriate guidance as to the significance of the truly appalling criminal history of the applicant. The High Court in that case said this: (at 477) "... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." The Subjective Case of Mr Ghisolfi 22 Judge Keleman was assisted by a comprehensive report by Ms Anna Robilliard, psychologist, who examined Mr Ghisolfi. It identified a number of issues which his Honour dealt with in the course of his remarks. Mr Ghisolfi had been addicted to heroin from time to time. He told Ms Robilliard, as he told Judge Karpin almost a decade earlier, that he managed to remain drug free whilst in gaol, but quickly returned to drugs upon release. Ms Robilliard expressed the view that Mr Ghisolfi was in need of rehabilitation. However, the urge to change the hopeless pattern of his life had to come from within himself. 23 Mr Ghisolfi is a diabetic. He was diagnosed approximately three years ago. He requires a number of insulin injections each day. Again, his Honour dealt with these issues in his careful remarks. 24 As recently stated by this Court in R v AEM Snr & Ors [2002] NSWCCA 58, para 63, sentencing does not involve a process of mathematical formulae, nor admit a single correct answer. The sentencing Judge is given a discretion. In the course of argument, the Court has been taken to statistics compiled by the Judicial Commission, and to other cases in which offenders have been sentenced for armed robberies. Some of these cases involve offences which appear to be more serious, either because of the weapon used, or because of the professionalism which is said to be absent from the offences committed by Mr Ghisolfi. This material is helpful. However, I am not persuaded that there is error. Whilst the sentence imposed upon Mr Ghisolfi is at the upper end of the range, it is, in my view, within the range. Order 25 I would therefore propose the following order: 1. That leave to appeal should be granted. 2. But that the appeal should be dismissed. 26 SMART AJ: The facts and circumstances are set out in the judgment of Kirby J. The appellant's point is that with the particular offences of armed robbery involved in the present case, the sentences imposed are excessive and that sentences of the order imposed are reserved for grave cases of robbery whilst armed with an offensive weapon. 27 The armed robbery, the subject of count 2, was a serious offence. The applicant waited until the customers had left the St George Hospital kiosk and then confronted the one female shop assistant on her own with a knife, demanded money, and took about $700. He threatened to come back if she reported the incident. She would have been terrified. On this count, two further armed robberies with an offensive weapon were taken into account. Each involved the applicant entering a hairdressing salon where the female owner and one customer were present, the applicant producing a knife and demanding and obtaining money. The ladies would have been terrified. 28 Taking into account the two further armed robberies, the correct sentence on this count, in my opinion, was one of ten years with a non-parole period of 7 and a half years. 29 As to the first count, the applicant entered a hairdressing salon and confronted the female owner and three female customers. He produced a large knife and walked around the salon. The ladies fled from the shop via a rear door. The applicant took the handbag of one of the customers which had been left in the salon. It contained a mobile phone, a purse, two bank keycards and $410 in cash. All offences were committed whilst the applicant was on parole and within less than one month after release on similar offences. He had over two years to serve on parole. In my opinion, the correct sentence was one of eight years with a non-parole period of six years. 30 I have not overlooked that the maximum penalty is 20 years. I would make the sentences partially concurrent and partially cumulative, as this is necessary to reflect adequately the criminality involved in the offences. An overall result of twelve years imprisonment with a non-parole period of 9 years is correct. Inter alia, this gives effect to the principles of totality. 31 In these circumstances I will withdraw my reasons. I agree with the orders proposed by Kirby J. 32 KIRBY J: The order of the Court will be as proposed by me. ********** 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. 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