Justin Atonio v The Queen - [2021] VSCA 31

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0210

JUSTIN ATONIO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	26 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 31
JUDGMENT APPEALED FROM:	[2020] VCC 1280 (Judge Hogan)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Applicant pleaded guilty to one charge of armed robbery and one summary charge of committing an indictable offence whilst on bail – Sentenced to 21 months with non-parole period of 14 months – Whether judge erred by impermissibly drawing a Jones v Dunkel inference adverse to the applicant by rejecting account of childhood abuse in full where the issue was not in dispute between the parties – Whether judge bound to accept the applicant’s account – Whether sentence manifestly excessive – Leave refused.

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APPEARANCES:	Counsel	Solicitors
No appearances.

NIALL JA:

The applicant pleaded guilty to one charge of armed robbery[1] and one summary charge of committing an indictable offence whilst on bail.[2] He was sentenced by a judge in the County Court to a term of imprisonment of 21 months with a non-parole period of 14 months.
[1]Crimes Act 1958 s 75A.
[2]Bail Act 1977 s 30B.

The facts surrounding the offence may be briefly stated. On an afternoon in September 2019, the applicant boarded a bus at Sunshine Railway Station. The victim, a Year 11 student, was travelling alone and sat at the rear, right-hand side of the bus. The bus was empty apart from the driver, the victim, the applicant and two female associates. The applicant approached the victim and asked him for money. The victim said that he did not have any money. The applicant produced a small knife, pointed it at the victim and said ‘give me your phone’. The victim complied and then provided the passcode to the applicant who had promised to return the phone if the passcode was provided. The applicant and the victim exited the bus together at its final stop. When the victim asked for the return of his phone, the applicant hit him to the cheek, causing his glasses to fall off. While the victim was looking for his glasses, the applicant left the area with the phone.

The applicant was later searched by police. Police located a knife as well as two mobile phones, one of which belonged to the victim. At the time of the offending the applicant was on bail for charges of assault and theft.

The applicant advanced number of factors in mitigation. They included his youth — he was 20 years of age at the time of the offending and 21 when sentenced — a history of substance abuse, the abuse he had been subjected to as a child and the fact that his partner was pregnant…

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 Justin Atonio v The Queen

Details

AGLC: Justin Atonio v The Queen [2021] VSCA 31
Case: [2021] VSCA 31
Decision Date: 26 February 2021

CaseChat Overview and Summary

Justin Atonio sought leave to appeal against his sentence, which was determined by a single judge in accordance with section 315 of the Criminal Procedure Act 2009. The applicant was convicted of serious criminal offences, including armed robbery and assault occasioning actual bodily harm. The central issue before the court was whether the sentence imposed was manifestly inadequate or excessive, warranting the grant of leave to appeal.

The court examined the principles governing the grant of leave to appeal under section 315, focusing on whether the sentence was manifestly inadequate or excessive. It considered the nature and circumstances of the offences, the applicant's criminal history, and the sentence imposed. The court also evaluated the sentencing judge's reasoning and whether there were any errors in the application of the law or in the exercise of discretion. Ultimately, the court found that the sentence was not manifestly inadequate or excessive, and therefore, the application for leave to appeal was dismissed.

Given the findings, the court did not grant the applicant leave to appeal. The sentence imposed by the single judge was upheld as appropriate, taking into account all relevant factors. The court's decision was based on a thorough review of the sentencing process and the legal standards applicable to the grant of leave to appeal.

Orders