R v MASTRONARDI [2004] NSWCCA 273

New South Wales Court of Criminal Appeal

CITATION : R v MASTRONARDI [2004] NSWCCA 273 HEARING DATE(S) : 7 July 2004 JUDGMENT DATE : 23 August 2004

JUDGMENT OF : Sheller JA at 1; Sperling J at 41; Adams J at 42 DECISION : 1 Grant leave to appeal; 2 Appeal allowed; 3 Quash the sentences imposed by his Honour Acting Judge Kinchington on 5 August 2003; 4 In lieu thereof the applicant is sentenced as follows; (1) Armed robbery on 12 October 2002; a fixed term of three years imprisonment to commence on 18 January 2003, the date on which the applicant was taken into custody, and expire on 17 January 2006; (2) Aggravated take and drive conveyance (car-jacking) on 18 January 2003; a fixed term of three years imprisonment to commence on 18 January 2004 and to expire on 17 January 2007; (3) Aggravated robbery on 18 January 2003; a term of four years imprisonment to commence on 18 January 2005 and to expire on 17 January 2009 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007; (4) Use of offensive weapon to resist lawful apprehension on 18 January 2003; a term of imprisonment of two years and six months to commence on 18 January 2005 and expire on 17 July 2007 with a non-parole period of two years to commence on 18 January 2005 and expire on 17 January 2007.

CATCHWORDS : APPEAL AGAINST SENTENCE - four offences - questions of cumulation and concurrence - whether aggravated robbery sentence outside the range of a proper exercise of the sentencing discretion - effect on total sentence - special circumstances to be taken into account Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes (Sentencing Procedure) Amendment (Standing Minimum Sentencing) Act 2002 Crimes Act 1900 Pearce v The Queen (1998) 194 CLR 610 R v Astill (No 2) (1992) 64 A Crim R 289 CASES CITED : R v Davies; Gorman v R (1978) 68 Crim App R 319 R v Henry (1999) 46 NSWLR 346 R v Morgan (1993) 70 A Crim R 368 PARTIES : Fabian Mark Mastronardi - Applicant Crown - Respondent FILE NUMBER(S) : CCA 60118/04 COUNSEL : P Hamill - Applicant D Frearson - Respondent SOLICITORS : S O'Connor - Applicant S Kavanagh - Respondent