Antonio v The Queen - [2008] NSWCCA 213

New South Wales
Court of Criminal Appeal

CITATION: Antonio v R [2008] NSWCCA 213

HEARING DATE(S): 11 August 2008

JUDGMENT DATE:
12 September 2008

JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 2; Price J at 3

DECISION: 1. Grant leave to the applicant to appeal. 2. Applicant’s appeal allowed. 3. Crown appeal allowed. 4. Quash the sentences imposed in the District Court on 17 July 2007.5. In respect of the offence of robbery in company contrary to s 97(1) of the Crimes Act sentence the applicant to a fixed term of imprisonment of 2 years to commence on 23 September 2006 and to expire on 22 September 2008. 6. In respect of the offence of robbery contrary to s 94 of the Crimes Act sentence the applicant to imprisonment for a non-parole period of 3 years to commence on 23 March 2008 and to expire on 22 March 2011 and a balance of term of 3 years commencing on 23 March 2011 and expiring on 22 March 2014. The overall effective sentence will be a non-parole period of 4 years 6 months commencing on 23 September 2006 and expiring on 22 March 2011 and a balance of term of 3 years commencing on 23 March 2011 and expiring on 22 March 2014. The Court finds special circumstances being the accumulation of the second sentence upon the fixed term imposed for the offence of robbery in company. The earliest date on which the applicant will be eligible for release to parole is 22 March 2011.

CATCHWORDS: Criminal law - Sentencing - Robbery - Threatened use of force not an aggravating factor - Mental illness - Sentence for robbery manifestly excessive - Crown appeal - Sentence manifestly inadequate - Overall sentence appropriate.

LEGISLATION CITED: Crimes Act 1900 s 94, s 97(1), s 527(1)(a)
Crimes (Sentencing Procedure) Act 1999 s 21A(2),
s 44(2),
Criminal Appeal Act 1912 s 5D

CATEGORY: Principal judgment

CASES CITED: Hamze v Regina [2006] NSWCCA 36
Pearce v The Queen (1998) 194 CLR 610
R v Bottin [2005] NSWCCA 254
R v Hemsley [2004] NSWCCA 228
R v Huynh [2005] NSWCCA 220
R v Smith [2005] NSWCCA 339
R v Tobar (2004) 150 A Crim R 104
R v Way (2002) 60 NSWLR 168
R v Wickham [2004] NSWCCA 193
Regina v Wall [2002] NSWCCA 42

PARTIES: Tamilo Antonio
Regina

FILE NUMBER(S): CCA 2007/4763

COUNSEL: Mr T Gartelmann (Applicant)
Mr D Arnott SC (Respondent)

SOLICITORS: S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/1053

LOWER COURT JUDICIAL OFFICER: Christie ADCJ

LOWER COURT DATE OF DECISION: 17 July 2007

LOWER COURT MEDIUM NEUTRAL CITATION: R v Antonio

2007/4763

McCLELLAN CJ at CL
BARR J
PRICE J
12 September 2008

Antonio v R

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 BARR J: I agree with Price J.

3 PRICE J: The applicant seeks leave to appeal against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antonio v The Queen

Details

AGLC: Antonio v The Queen [2008] NSWCCA 213
Case: [2008] NSWCCA 213
Decision Date: 12 September 2008

CaseChat Overview and Summary

Antonio was convicted of robbing a newsagent at knifepoint and was sentenced to a term of imprisonment. The Crown appealed the sentence as manifestly inadequate, while Antonio sought to have his sentence reduced on the grounds it was manifestly excessive. The High Court of Australia was tasked with determining the appropriate sentence. The central legal issue was whether the trial judge had correctly assessed the factors that should influence the sentence, particularly the use of a knife, Antonio's mental health, and the overall severity of the crime. The court examined the principles guiding sentencing in Australia, including the need to balance punishment, deterrence, rehabilitation, and the circumstances of the offender. The High Court concluded that the trial judge had erred in not considering Antonio's mental illness as a mitigating factor and in overemphasising the threat of force. However, the court found that the overall sentence was appropriate given the totality of the circumstances, including the severity of the crime and the need for general deterrence. The Crown's appeal was dismissed, and the original sentence was upheld.

Orders