Antunes v The The Queen - [2022] NSWDC 148

District Court

New South Wales

Medium Neutral Citation: Antunes v R [2022] NSWDC 148
Hearing dates: 3-4 February 2022
Date of orders: 4 February 2022
Decision date: 04 February 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
The appeal against the severity of the sentence is dismissed.

Catchwords:
CRIME – APPEAL – SENTENCE – Severity of sentence – Request for a Conditional Release Order – Appellant alleges need for licence – Appellant’s driving history considered – Appellant’s antecedents considered – Whether case appropriate for a Conditional Release Order.

Legislation Cited:
Crimes Act1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Rules 2014 (NSW)

Cases Cited:
Matta v The Australian Competition and Consumer Commission [2000] FCA 729

Texts Cited:
Nil.

Category: Sentence
Parties: R – Crown
Appellant – Nathan William Cavaco Antunes
Representation: Crown – Bowden, C., Gunther, M.
Appellant – Cook, A., Averre, A.

File Number(s): 2021/00208838
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil.

Date of Decision:

18 October 2021

Before:

Donnelly LCM

File Number(s):

2021/00208838

Judgment

Background

HIS HONOUR: This is an appeal against the severity of a sentence passed by His Honour Magistrate Donnelly, sitting in the Downing Centre Local Court, on 18 October 2021. The appellant, Nathan William Cavaco Antunes, pleaded guilty to a charge that at about 8.48 am on 19 June 2021 he travelled at a speed of 114 km per hour in a traffic zone where the speed limit was 80 km per hour. At the time he was driving a motor vehicle with registration number EEJ 36Q. The offence is a breach of r 20 of the Road Rules 2014. The offence occurred on Warringah Freeway at North Sydney. The maximum penalty for the offence is a fine of $2,200. The offence carries a compulsory licence disqualification period of three months. It also carries five demerit points. His Honour imposed a fine of $900. The automatic disqualification period of three months followed.
The offender in this appeal asks me to give him the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 and asks that I impose a Conditional Release Order pursuant to s 10(1)(b) of the Sentencing Act. Under s 10(2) the following is provided:

“(2) An order referred to in subsection (1) (b) may be made if the court is satisfied—

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to discharge the person under a conditional release order.”

Under s 10(3) the following is provided:

“(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors—

(a)  the person’s character, antecedents, age, health and mental condition,
(b)  the trivial nature of the offence,
(c)  the extenuating circumstances in which the offence was committed,
(d)  any other matter that the court thinks proper to consider.”

I must, in deciding whether…

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 Antunes v The The Queen

Details

AGLC: Antunes v The The Queen [2022] NSWDC 148
Case: [2022] NSWDC 148
Decision Date: 04 February 2022

CaseChat Overview and Summary

In the matter of Antunes v The Queen, the appellant Antunes was convicted of a crime and subsequently sentenced. Antunes appealed against the severity of the sentence, arguing for a Conditional Release Order, citing the need for a licence and taking into account his driving history and antecedents. The court was tasked with determining whether the case was appropriate for such an order. The court meticulously reviewed the circumstances surrounding the offence, the appellant's driving history, and his criminal antecedents to assess the appropriateness of the sentence and the applicability of a Conditional Release Order.

The central legal issues that the court needed to address involved the severity of the sentence imposed on Antunes and whether a Conditional Release Order was warranted. The court had to consider the nature and gravity of the offence, the appellant’s driving history, and his previous criminal record to determine if the sentence was excessively harsh or if there were grounds for a Conditional Release Order. The appellant's request for a licence and the potential impact of a Conditional Release Order on his circumstances were also evaluated.

The court examined the severity of the sentence and concluded that it was proportionate to the offence committed. The court found that the appellant's driving history and antecedents did not warrant a reduction in sentence or a Conditional Release Order. The appellant's criminal record and the nature of the offence led the court to decide that the original sentence was appropriate. Consequently, the appeal against the severity of the sentence was dismissed, and no Conditional Release Order was granted.

Orders

Orders of the court

The appeal against the severity of the sentence is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Antunes v R [2022] NSWDC 148
Hearing dates:	3-4 February 2022
Date of orders:	4 February 2022
Decision date:	04 February 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	The appeal against the severity of the sentence is dismissed.
Catchwords:	CRIME – APPEAL – SENTENCE – Severity of sentence – Request for a Conditional Release Order – Appellant alleges need for licence – Appellant’s driving history considered – Appellant’s antecedents considered – Whether case appropriate for a Conditional Release Order.
Legislation Cited:	Crimes Act1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Matta v The Australian Competition and Consumer Commission [2000] FCA 729
Texts Cited:	Nil.
Category:	Sentence
Parties:	R – Crown Appellant – Nathan William Cavaco Antunes
Representation:	Crown – Bowden, C., Gunther, M. Appellant – Cook, A., Averre, A.
File Number(s):	2021/00208838
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Nil. Date of Decision: 18 October 2021 Before: Donnelly LCM File Number(s): 2021/00208838