Maximo Armando Pantoja v The King - [2025] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maximo Armando Pantoja v R [2025] NSWCCA 10
Hearing dates: 04 February 2025
Date of orders: 24 February 2025
Decision date: 24 February 2025
Before: Stern JA at [1]
Garling J at [2]
N Adams J at [96]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive – Relevant factors on sentence – Objective seriousness – Sentencing statistics – Aggravating factors – Where actual bodily harm is inflicted – Where the aggregate sentence falls within the discretionary range allowed to a sentencing Judge
CRIMINAL PROCEDURE – Sentencing proceedings – Whether comparable cases are relevant in determining duration of imprisonment and non-parole period – Whether comparable sentences fix an outer limit for the imposition of rational sentences

Legislation Cited:
Crimes Act 1900, ss 59(1), 61I, 61J
Crimes (Sentencing Procedure) Act 1999, ss 3A, 54A

Cases Cited:
Black v R [2013] NSWCCA 265
Hili v R [2010] HCA 45; (2010) 242 CLR 520
Hughes v R [2018] NSWCCA 2
JM v R [2014] NSWCCA 297
Kentwell v R [2014] HCA 37; (2014) 252 CLR 601
R v SS (a pseudonym) [2022] NSWCCA 258
SC v R [2019] NSWCCA 25

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Maximo Armando Pantoja (Applicant)
The Crown (Respondent)
Representation:
Counsel:
J Stratton SC (Applicant)
S Lind (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/298470
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

04 August 2023

Before:

Hock DCJ

File Number(s):

2020/298470

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 4 August 2023, Maximo Pantoja (the applicant), was sentenced to an aggregate sentence of 15 years imprisonment, with a non-parole period of 11 years and 3 months.

The applicant had been found guilty of three offences. Counts 1 and 2 were the offence of sexual intercourse without consent contrary to s 61I Crimes Act 1900 (NSW). Count 3 was an offence of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). Both offences were committed against a woman that the applicant was, at one time, in a domestic relationship with, however the relationship had since ended. Notably, the applicant had previously been convicted of the murder of his ex-wife.

The applicant sought leave to appeal the sentence on the grounds that the aggregate sentence was manifestly excessive, and in particular the indicative sentence for Count 3 was manifestly excessive. When assessing the objective seriousness of each offence, the sentencing judge determined:

Count 1: the form of sexual intercourse was digital penetration, ‘which is generally regarded as less serious than penile/vaginal intercourse’;

Count 2: the form of sexual intercourse was penile/vaginal intercourse, which lasted 20 minutes, done so without use of a condom;

Count 3: the form of sexual intercourse was digital penetration in…

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 Maximo Armando Pantoja v The King

Details

AGLC: Maximo Armando Pantoja v The King [2025] NSWCCA 10
Case: [2025] NSWCCA 10
Decision Date: 24 February 2025

CaseChat Overview and Summary

The matter before the court was an appeal against sentence by the respondent, Maximo Armando Pantoja, who sought to overturn a sentence imposed by a lower court. The appeal focused on the severity of the sentence, arguing that it was manifestly excessive. The case was heard in the High Court of Australia.

The central legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had properly considered the relevant factors in determining the length of the sentence. The court needed to assess if the sentence was within the discretionary range allowed by law and whether the severity was justified by the objective seriousness of the crime, which involved the infliction of actual bodily harm.

The High Court considered that the sentence imposed by the lower court, while severe, was within the discretionary range permitted by the relevant legislation. The court examined the objective seriousness of the crime and the sentencing statistics for comparable cases, which showed that the sentence fell within the range typically imposed for similar offences. The court also weighed the aggravating factors against the mitigating factors, concluding that the sentence was not manifestly excessive. Therefore, the appeal against the sentence was dismissed.

No final orders are necessary beyond the dismissal of the appeal, as the sentence imposed by the lower court remains in effect.

Orders