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:
Solicitors:
J Stratton SC (Applicant)
S Lind (Respondent)
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…
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- AGLC
- Maximo Armando Pantoja v The King [2025] NSWCCA 10
- Case
- [2025] NSWCCA 10
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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