Costantino Carmelo Mastrolembo: Driver who left elderly cyclist David Kirby for dead on freeway wins appeal

A driver who left an elderly cyclist for dead on the Mitchell Freeway then lied that he’d hit a kangaroo can walk free from jail in only a couple of months, despite his shocking driving record. Costantino Carmelo Mastrolembo was driving along Mitchell Freeway in the early hours of October 9, 2022, when he hit David John Kirby, who was riding his electric bike on the left-hand side of the carriageway. The 86-year-old was struck from behind and flung into the air, hitting the windscreen before landing on the ground. Instead of stopping to help, Mastrolembo drove off. When the Farmer Jacks store manager arrived at work, he told a colleague who handled insurance claims for their company that he had hit a kangaroo. He even drew a picture of the marsupial to illustrate what had happened, for his claim, and also attached a cord to the bumper of the Mitsubishi ASX to stop it from dragging on the road. Mastrolembo unsuccessfully argued at his District Court of WA trial he had an honest and mistaken belief that he had hit a kangaroo. In sentencing Mastrolembo on December 2024 to four years and three months behind bars, Judge Laura Christian told the then 47-year-old that he must have known or believed he had struck a person, describing the ‘roo claim a deliberate lie. He was not responsible for the collision, but did have a duty to stop and render assistance, and to not do so was “callous”, she said. She also disqualified him from holding or obtaining a driver’s licence for four years upon release. Mastrolembo appealed the sentence and on Wednesday, two out of three Court of Appeal justices found in his favour. He argued that Judge Christian erred by taking into account his epic history of traffic infringements — 30 over 25 years — in determining that there was an increased need for personal deterrence. She noted he had not been convicted of any sort of offence that had led to a term of imprisonment but his traffic convictions, including drink driving and using a mobile phone while driving, “show a disregard for the traffic laws”. Defence counsel at trial, Jonathan Davies, submitted that his client’s payment of the infringement notices was not evidence that he had committed the offences and should not be taken into account. Justices Robert Mitchell and Troy Sweeney agreed it shouldn’t not have factored in sentencing. “The sole offence for which the appellant was sentenced was of a significantly different character, in that it did not revolve around his driving but rather his failure to stop,” they wrote. The judges resentenced him to three years’ imprisonment and imposed a driver’s licence disqualification of the same length. Because Mastrolembo’s sentence is now less than four years, he will be eligible for parole after serving half of that — 18 months.