Justin Atonio v The Queen
[2021] VSCA 31
•26 February 2021
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 with their second child. The applicant said that he committed the robbery in order to obtain money to provide food for his partner and child and to get a hotel room for the night. Further, as a non-citizen, he was liable to be deported as result of the offending.
A significant part of the plea involved a claim that the applicant had suffered regular, significant emotional and physical abuse at the hands of his parents throughout his childhood. He said that as a result of this abuse he had been forced to leave home and had experienced periods of homelessness. His deprived upbringing was said to reduce his moral culpability for the offending. At the plea, the applicant’s counsel relied on Bugmy v The Queen.[3]
[3](2013) 249 CLR 571; [2013] HCA 37.
The applicant seeks leave to appeal his sentence.
Proposed grounds of appeal
If granted leave, the applicant would appeal his sentence on two proposed grounds as follows:
1.The learned sentencing judge erred by impermissibly drawing a Jones v Dunkel[4] inference adverse to the applicant in circumstances where the issue was not in dispute between the parties.
[4](1959) 101 CLR 298; [1959] HCA 8.
2.When regard is had to the following circumstances:
• the applicant’s plea of guilty and the stage at which it was entered;
• the applicant’s limited criminal history;
• the applicant’s personal circumstances;
• the applicant’s youth; and
• the additional burden of prison on the applicant
the head sentence imposed, and the non-parole period fixed, are manifestly excessive.
Ground 1
As already noted, the applicant relied on a history of emotional and physical abuse. The judge accepted that the applicant had grown up in an environment of conflict and had been the victim of some abuse.[5] The judge’s refusal to accept the applicant’s account in full is the focus of ground 1.
[5]DPP v Atonio [2020] VCC 1280, [28] (‘Reasons’).
The judge concluded that the applicant was an unreliable historian and she did not accept the full extent of the abuse he had described. In the course of her reasons for sentence, the judge described the applicant as ‘manipulative’, untruthful in his dealings with psychologists who had accepted a history of abuse, ‘[not] a very convincing historian’ and ‘someone who can look doleful when it suits [him]’.[6] By ground 1, the applicant contends that in rejecting his account of childhood abuse, the judge impermissibly drew a Jones v Dunkel inference against the applicant.
[6]Ibid [28], [29], [23]–[25], [18].
In order to address this ground it is necessary to briefly rehearse the course of evidence concerning the claimed abuse.
In support of his plea the applicant relied on a number of documents. They included reports of psychologists Mr David Ball dated 18 February 2020 and Ms Carla Ferrari 26 July 2020. Both psychologists recorded a history of abuse.
In addition, he provided a letter dated 17 December 2019 from two youth workers, Briar Mikus and Eliza Kandell, who had supported the applicant in the period leading up to the offending. The applicant also relied on character references from his mother and his father. His mother wrote: ‘Justin is a child of good character and is an honest and reliable child but it just a matter making wrong choices.’ His father said:
If Justin will be given another chance I will try my best to support him in whatever I could and help to keep him away from getting into trouble.
I have strong faith that Justin have learnt his lessons during his time in dentention. He’s not a kid anymore he a father already and it will be a great opportunity to correct what he has done wrong already. We will make sure and make close contact when he is given another chance supporting him.
In written submissions on the plea, the applicant said that he had a dysfunctional upbringing in a rigid and abusive family. He said that he was beaten with extension cords and other implements and his parents called him names on a daily basis. He reported running away from home from 14 years of age. He said that his relationship with his parents had improved since he had been on remand.
Early on in the plea, counsel for the applicant told the judge that the applicant had engaged in drug use from a young age and that the disadvantages of his upbringing presented a challenge to rehabilitation. In that respect, counsel referred to Bugmy v The Queen. At that point the judge observed that the evidence of the applicant’s background was based entirely on the applicant’s own account. The judge also noted that the applicant sought to rely on references from his parents. The judge highlighted the potential inconsistency between the applicant relying on statements from his parents that he was of good character, honest and reliable, and his own statements that he had been physically and verbally abused by his parents.
The judge noted that the applicant had a history of dishonesty offences and made it clear that she would not act on statements from the Bar table. At various points of the plea her Honour noted that the applicant’s account of his upbringing was solely reliant upon his instructions and that she had reservations about that account in the absence of evidence. The judge directly raised the question of whether the applicant proposed to call his parents to give evidence.
In response to the judge’s expressed reservations, the applicant’s counsel submitted that the applicant’s account was supported by the evidence of the psychologists. To that submission, the judge made the point that their opinions depended on accepting the applicant’s account.
After the matter was stood down for some time the plea resumed with the applicant giving evidence. His evidence extended over two days. Although the judge did not directly challenge the applicant on any specific aspect, it is clear from the transcript that her Honour repeatedly identified concerns that she had in accepting the applicant’s account. The applicant could have been under no doubt that his credibility and reliability were under challenge and that the judge was concerned about them. Indeed, it was the judge’s concerns that prompted the applicant to give evidence and to adduce oral evidence from one of his case workers.
It is clear from the reasons for sentence that the judge retained significant reservations about aspects of the applicant’s account. In the reasons for sentence the judge explained why she was not prepared to accept that account in its entirety or without qualification. Those matters included:
(a) a lack of corroborative material supporting the report of abuse;
(b) the failure to call the applicant’s parents,
(c) inconsistencies between the reports given to the two psychologists, Mr Ball and Ms Ferrari;
(d) inconsistencies between the applicant’s sworn evidence and his record of interview;
(e) lies told to the victim at the time of the offending and later to police who searched him; and
(f) a lack of detailed complaint to the applicant’s case manager or counsellor at the Youth Junction Inc.
In a passage, which is the subject of complaint in ground 1, the judge said:
The other significant concern I hold about your evidence relates to your truthfulness or otherwise as to the nature and extent of physical and emotional abuse alleged to have been inflicted upon you by your parents. As previously stated, at the plea hearing, references were tendered from each of your parents. Presumably, they were tendered on the basis of inviting the Court to find that your parents are people of good character, who should be believed. Your father stated that you deserve another chance because he believes you have learned your lesson and he will do his best to support you to keep you from getting into trouble. Your mother stated that since being in detention, you speak with some maturity ‘unlike the childish Justin that I knew.’ She stated that you were very much involved with the church youth group and that you are a person ‘of good character’ and honest and reliable ‘but have just made some wrong choices.’ Yet, much of the plea hearing was devoted to impugning your parents’ character as people who had relentlessly abused you both physically and emotionally. This is a curious situation. Either I reject the references as being of no weight because I believe your evidence that your parents have been relentless violent child abusers, or I draw the inference that, had your parents been called, their evidence would not have assisted your plea in mitigation. When I raised the issue as to whether the failure to call your parents to give evidence opened the discretion to draw an inference adverse to the defence case, I was offered no assistance by either counsel for defence or the prosecution. In all the circumstances, I do consider it appropriate to infer that, had your parents been called, their evidence would not have assisted your case.[7]
[7]Ibid [22].
The applicant submits that the judge drew inferences adverse to the applicant because of his failure to call his parents and his partner and that those findings ‘aggravated the sentence imposed’ and the judge was required to be satisfied of them to the criminal standard. More generally, he submits that in circumstances where the applicant’s account was not directly challenged by the prosecutor and was reasonable and probable, the Court was bound to accept.
The respondent submits that it was open to the judge to decline to accept the extent of the childhood abuse described by the applicant. In that respect, the judge noted that the applicant sought to rely on the abuse in mitigation for sentence and that he needed to establish the facts underpinning the submission on the balance of probabilities. Further, the judge did not treat the failure to call the applicant’s parents as an aggravating factor in the sentence imposed.
The respondent submits that notwithstanding the significant qualifications of the applicant’s evidence, the judge nevertheless accepted a number of factors relevant to his upbringing in mitigation of the sentence. The judge accepted that the applicant grew up in an environment of conflict, had been subject to some abuse and that developmental disadvantage caused by a dysfunctional home environment and abusive behaviour can have long-term adverse impacts. Her Honour also accepted that the applicant suffered from ‘Cluster B personality traits’ that had their genesis in the applicant’s traumatic upbringing and that he suffered from Persistent Depressive Disorder.
Analysis
The approach to fact finding on sentence is well established and depends on whether the fact is one that operates adversely or favourably to the offender. A judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. In contrast, if there are circumstances which the judge proposes to take into account in favour of the accused, those circumstances are to be proved on the balance of probabilities.[8] Should either party seek to have the sentencing judge take any additional matter into account in passing sentence, it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it.[9] A contested factual assertion upon a plea must be proved by admissible evidence. There is, however, no universal requirement that the evidence be given on oath, or that there be a prior opportunity for cross-examination.
[8]R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
[9]Formosa v The Queen (2012) 36 VR 679, 681 [8]; [2012] VSCA 298 (Whelan JA, Redlich and Osborn JJA agreeing).
It is customary for facts in mitigation to be advanced from the Bar table without the need to adduce admissible evidence.[10] Where those facts are not challenged by the prosecutor, the sentencing judge may, but is not obliged to, accept those facts.[11] In this context, the applicant relies on the observation of Chernov JA in R v AWF[12] that ‘[o]rdinarily, where evidence is uncontradicted or not contested, is inherently reasonable and probable and conclusive of the matter, the court is bound to accept it.’[13] It may be remarked that the circumstances in which a court is bound to accept a fact were heavily qualified by Chernov JA and depend both on matters of process and the nature of the fact sought to be established.
[10]R v Storey [1998] 1 VR 359, 371 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
[11]Vozlic v The Queen (2013) 39 VR 327, 332 [22]; [2013] VSCA 113 (Redlich JA, Ashley and Priest JJA agreeing).
[12](2000) 2 VR 1; [2000] VSCA 172.
[13]Ibid 10 [31] (citations omitted).
If the judge intimates that he or she is not prepared to accept the assertions from the Bar table, the offender must adduce evidence of the facts. Once evidence is adduced, the judge is to find the facts based on that evidence in the usual way. Again, even where evidence is adduced, a judge is not required to accept the evidence of a witness but if that is to occur then considerations of fairness and process may intrude.
The central complaint in ground 1 is that the judge wrongly drew a Jones v Dunkel inference in relation to the applicant’s failure to call his parents.
Relevantly, the applicant sought to establish two propositions on the plea. First, that his offending was influenced by a disadvantaged background in which he had suffered emotional and physical abuse at the hands of his parents. Second, based on character references from the applicant’s parents, that they supported him and that he had insight, increasing maturity and promising prospects of rehabilitation.
Looked at separately, there was little room for a Jones v Dunkel inference in relation to family violence. It would not reasonably be expected that a victim of family violence would call the perpetrator to establish the abuse, nor would it be reasonable to draw any adverse inference from a failure to call the perpetrator.
As to the character references, the failure to call the authors of the references, in circumstances where the judge had indicated reservations about their content, would entitle a judge to give the references little or no weight. This would not be an application of Jones v Dunkel. The failure to call the authors might also have permitted the judge to more easily reject any assertion that the applicant had ongoing family support on the basis that there was an absence of evidence from his family members.
Moreover, as the judge explained, the two propositions that the applicant sought to establish could not be separated and were in conflict. On the one hand, the applicant relied on a long history of abuse perpetrated by his parents; on the other, he relied on their support. The tendering of the character references undermined the fact that he had been subject to extensive abuse. The failure to call his parents undermined the character references. It is possible, but improbable, that the discrepancy could be explained by improvements in the relationship over time, but such an explanation would have required evidence.
In the circumstances, it was not unreasonable for the judge to observe that evidence from the applicant’s parents, should they have been called, would likely undermine one or other of the two propositions, and perhaps both, and to that extent would not assist the applicant’s case. In any event, the analysis undertaken by the judge did no more than highlight the conflict in the applicant’s materials, and make the point that the applicant could not simultaneously enjoy the full mitigatory effect of both aspects of his plea.
In doing so, the judge did not treat the failure to call the applicant’s parents as an aggravating feature. The judge was simply not satisfied on the evidence as to the full extent of the matters the applicant relied on in mitigation. It was for the applicant to establish those facts on the balance of probabilities.
Finally, I reject the submission that the judge was obliged to accept the applicant’s account in full because each element was not the subject of specific challenge. The judge made it abundantly clear that she would not accept evidence from the Bar table, and during the course of the plea and the applicant’s evidence, she fairly put the applicant on notice about the concerns she had. There was no unfairness and no error in refusing to accept the applicant’s account in full. Indeed, the judge accepted much of his account despite the infirmities in his evidence.
Ground 1 must be rejected.
Ground 2: manifest excess
In order to succeed on ground 2, the applicant must establish that the sentence was wholly outside the range permitted in the sound exercise of the judge’s discretion.[14] The sentence must be ‘plainly unjust’ or ‘manifestly wrong’.[15] In Lowndes v The Queen,[16] the High Court noted that ‘a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.’[17]
[14]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
[15]Dinsdale v The Queen (2000) 202 CLR 321, 329 [22]; [2000] HCA 54 (Gaudron and Gummow JJ).
[16](1999) 195 CLR 665; [1999] HCA 29.
[17]Ibid 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
The applicant relies on a number of factors which he submits, in combination, meant that the sentence imposed was manifestly excessive. The applicant observes that he pleaded guilty to the offending at the earliest opportunity and this had both utilitarian benefit and provided evidence of remorse. He also says that remorse was further evidenced by admissions in a record of interview and exchanges with Ms Ferrari, and that those exchanges manifested insight on his part.
The applicant accepts his relevant criminal history but submits that the judge gave excessive weight to it and elevated the importance of community protection in the instinctive synthesis.[18]
[18]The applicant’s criminal history is set out at Reasons [8].
On 7 February 2019, he appeared at Sunshine Magistrates’ Court in relation to charges of theft from a shop, robbery and assault by kicking. Sentence was adjourned upon entry into an undertaking to be of good behaviour for a period of 12 months with a condition of the completion of the Youth Junction Program. The offending related to an incident in August 2017 when the applicant approached the victim outside a pizza shop. The applicant was in the company of a male co-offender. The victim was asked for his pizza and his phone. When he refused, he was pushed to the ground. The victim got up but the applicant and his co-offender demanded his phone and pushed him down again, then kicked him to the face, causing him to blackout. His phone, wallet, jacket, shoes, glasses and bag were taken. Two days later the applicant stole alcohol from a shop. On 28 August 2019, the applicant was convicted and fined $600 for possession of a controlled weapon — an axe, 40 cm in length. The applicant was on bail at the time of that offending and the current offending.
Next, the applicant relies on all of his personal circumstances and particularly his relatively young age — 20 at the time of the offending — and upbringing in a violent household. He said that as a result of violence at home he had sought refuge in drugs and alcohol and had periods of homelessness. As observed in relation to ground one, the judge did not accept the applicant’s evidence without qualification. However, as already noted, the judge did accept that the applicant had grown up an environment of conflict and had been the victim of some abuse. It is submitted that the applicant’s prospects of rehabilitation are good (at the very least) in light of his youth, plea of guilty and admissions to police.
The applicant also relies on the burden of prison. It is noted that he had never received a custodial sentence before, would be a young man in an adult prison with less than robust mental health and the COVID-19 pandemic would significantly impact visits and support. In addition, the applicant notes that he is non-a citizen of Australia and, as a result of the conviction, liable to be deported to New Zealand although he wishes to remain in Australia and build a life her with this partner and children. He also notes that he has spent a period in immigration detention pending resolution of these charges. The applicant submits that the judge did not give adequate weight to the burden of possible deportation or the period he had spent in immigration detention.
In relation to the circumstances of the offence, the judge noted that armed robbery is a serious offence and that the primary cause in this case was that the applicant was affected by having taken methylamphetamine on the two nights prior to the offending.[19] The judge noted that this did not provide a basis for reducing the applicant’s moral culpability. The judge accepted that the armed robbery was essentially opportunistic but noted that no explanation had been provided as to why the applicant was armed with a knife. Her Honour observed that the offending was brazen, committed in broad daylight on public transport and the applicant cowardly took advantage of a 17-year-old schoolboy who was alone on the bus.[20]
[19]Reasons [41].
[20]Ibid.
The judge noted that the applicant had shown disregard for court orders in the past and had been involved in a number of incidents whilst on remand, including an abusive and heated verbal exchange with a prison guard. In addition, he had returned two positive drug screens while in custody. For these reasons, in combination with the applicant’s issues with drug and alcohol abuse and anger management, the judge expressed the applicant’s prospects of rehabilitation as ‘guarded’.[21]
[21]Ibid.
The judge also had regard to the report of Mr Ball, in which the author expressed the view that the applicant was ‘likely to present with a number of challenges in terms of his safe management in the community’, and Ms Ferrari’s assessment of him as being at ‘moderate’ risk of reoffending.
The judge’s reasons for sentence are extensive and detailed. The judge took into account all of the factors relevant to the plea and made findings of fact that were open to her. The task in considering the present ground of appeal is to consider the sentence imposed in the context of the findings made by the judge and to make an assessment as to whether it was wholly outside the range available.
In my view, having regard to what was clearly a serious offence committed whilst on bail, the protection of the community in terms of both general and specific deterrence were important. This was a brazen armed robbery committed on a vulnerable victim on public transport in circumstances in which members of the community are entitled to be and feel safe.[22] The fact that the offence was committed whilst on bail was a factor which elevated the importance of specific deterrence. As a young offender, rehabilitation was of central importance. Notwithstanding that the applicant had not been in prison before and that he had a number of factors which he could legitimately call in aid on the plea, I am not satisfied that it is arguable that the sentence imposed was in any sense excessive.
[22]DPP v Stevens [2013] VSCA 187.
In my view, the sentence was open to the judge and the ground must be rejected.
Conclusion
In my view, the proposed grounds are not arguable and leave should be refused.
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