R v Atonio - [2005] NSWCCA 200

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Tamilo ATONIO [2005] NSWCCA 200

FILE NUMBER(S):
2004/3049 CCAP

HEARING DATE(S): 24/03/05

JUDGMENT DATE: 07/06/2005

PARTIES:
Appellant - Tamilo Atonio
Respondent - Regina

JUDGMENT OF: James J Hislop J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0438

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
Mr A Haesler SC with Mr S Jeppesen - Appellant
Mr W Dawe QC - Respondent

SOLICITORS:
SE O'Connor (Legal Aid Commission NSW) - Appellant
S Kavanagh (Director of Public Prosecutions NSW) - Respondent

CATCHWORDS:
Criminal Law
Sentencing
Aggravating factors Crimes (Sentencing Procedure) Act 1999 s 21A
Utilitarian value of plea.

LEGISLATION CITED:
Crimes Act 1900 - s 95(1)
Crimes (Sentencing Procedure) Act 1999 - s 21A(1) - (3)

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2004/3049 CCAP
JAMES J
HISLOP J
HALL J
7 June 2005

Regina v Tamilo ATONIO

Judgment

JAMES J: I have had the advantage of reading in draft the judgment of Hislop J. I agree with the orders proposed by his Honour, for the reasons given by his Honour.
As his Honour indicates at pars 28 and 29 of his judgment and as was stated by Howie J in R v Wickham [2004] NSWCCA 193, a sentencing judge should not in his remarks on sentence refer to a possible circumstance of aggravation or of mitigation, without proceeding to make a finding about whether the circumstance has or has not been established.
In the present case I consider that there was no basis on which the sentencing judge could have found that the offence committed by the applicant, which included punching the victim twice on the face causing the victim pain but no injury, involved gratuitous cruelty (s 21A(2)(f)) of the Crimes (Sentencing Procedure) Act) or that the injury caused by the offence was substantial (s 21A(2)(g)) or that the victim was vulnerable (s 21A(2)(l)). In regard to the last matter I note that the victim did not fall within any of the examples given in s 21A(2)(l), the offence was committed in the early evening and there were two witnesses within five metres of the applicant and the victim.
HISLOP J: The applicant pleaded guilty to the offence of assault with intent to rob in circumstances of aggravation contrary to the Crimes Act 1900 s 95(1). The maximum penalty for such an offence is 20 years imprisonment.
On 6 April 2004, the applicant was sentenced for that offence in the District Court to imprisonment for a total period of 5 years with a non-parole period of 3 years commencing on 22 June 2003 with the balance of the sentence of 2 years to date from 22 June 2006 and expire on 21 June 2008.
The applicant has sought leave to appeal against that sentence on the ground that the sentence imposed is manifestly excessive.
The facts of the offence, as stated by the sentencing judge in his Remarks on Sentence, were:
On 22 June 2003, Mr Hossain went to Granville railway station at or about 7.20pm. He was walking on platform number two when the offender approached him and asked him to, “give me two bucks”. When the victim did not give the offender the money, the offender then said, “I think you have a mobile, give me your mobile”. Thereafter there was some aggressive conversation between the two and a further request for the mobile was given to the victim by the offender. He then stepped closer to the victim who had refused to give him his mobile and the victim then put his hand on the offender’s chest to stop him coming closer. The offender then pushed his hands into the victim’s pocket to get the mobile phone. The victim took out his wallet, revealing a $20 note. The offender then allegedly said, “give me $10 or $20 or your mobile”. The victim replied that he could not, and the offender said that if he did not, he would strike him. Then he raised his right hand into the air, forming a fist, and punched the victim with his right hand to the left cheek. The offender then said, “Don’t waste my time, give me your mobile”. The victim shook his head, and the offender then punched him again in the left cheek… the offender walked up the stairs of the railway station…The police attended the scene…arrested (the applicant) and conveyed him to Parramatta police station where he appeared to be affected by alcohol, as he had slurred speech, red eyes and struggled to stand on his feet.
His Honour also noted evidence of an eyewitness that the victim was 5 ft 1 in. tall, skinny built and that the applicant was about 6 ft tall and of heavy build. The eyewitness saw a “strong punch” being made by the applicant with a closed fist to the left cheek or jaw area of the victim. He said it was a strong punch because he heard it connect with the victim’s face. His Honour also noted that the victim was 21 years old.
The applicant was born on 18 September 1982 of Samoan parents. He left school in year 9 and has engaged in various forms of employment since that date. He has a significant criminal history commencing in 1998 which includes, relevantly, offences of assault, assault occasioning actual bodily harm, assault with intent to rob, demand money with menaces, larceny, break and enter, resist police, and stalk/intimidate with intent to cause fear. His latest convictions prior to the present offence were for aggravated robbery and robbery. He was sentenced for these offences on 8 March 2002. On the robbery charge he received a sentence of 12 months imprisonment commencing on 31 March 2001 and expiring on 30 March 2002 and for the aggravated robbery offence a sentence of imprisonment for 2 years and 6 months commencing on 30 March 2002 with a non-parole period of 12 months. He was on a bond and on parole at the time of the subject offence.
The applicant has submitted that a lesser sentence would have been imposed by his Honour but for errors which occurred in the sentencing process. These errors have been particularised as follows:
1. The sentencing judge erred in having additional regard to an aggravating factor pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1999 which was an element of the offence.
2. The sentencing judge erred in finding additional aggravating factors which were not available to him on the facts of the case.
3. His Honour erred in failing to properly take into account the applicant’s intellectual deficits.
4. His Honour erred in failing to give the applicant the full benefit of his early plea of guilty.
5. His Honour failed to properly balance the serious objective circumstances of this offence with the subjective case for the offender.
The Crimes (Sentencing Procedure) Act1999 (“the Act”) s 21A provides relevantly:
(1) In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are (relevantly for present purposes) as follows:
…
(b) the offence involved the actual or threatened use of violence…
(d) the offender has a record of previous convictions…
(f) the offence involved gratuitous cruelty…
(g) the injury, emotional harm, loss or damage caused by the offence was substantial…
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bank teller or service station attendant)…
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) The mitigating factors to be taken into account in determining the appropriate sentence for an offence are [relevantly for present purposes] as follows…
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability…
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
His Honour, in his Remarks on Sentence, said:
It is also necessary for the Court to take into account aggravating and mitigating factors under s 21A. 21A(2) provides aggravating factors to be taken into account. These are:… [relevantly for present purposes] (b) the offence involved the actual and threatened use of violence. This is indeed what occurred here.…(d) the offender has a record of previous convictions. The offender in this case has a lengthy history of convictions…(f) the offence involved gratuitous cruelty. One might reasonably argue that that is the case. (g) The injury, emotional harm, loss or damage caused by the offence was substantial. It depends upon one’s interpretation of the word “substantial”. In this case, a person who was vulnerable on a railway station was subjected to a violent attack without consideration to his safety…(l) the victim was vulnerable.
Particular One – The sentencing judge erred in having additional regard to an aggravating factor pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1999 (“the Act”) which was an element of the offence.
The elements of the offence for which the applicant was sentenced were assault with intent to rob in circumstances of aggravation, namely, uses corporal violence on any person.

The applicant submitted that his Honour infringed the requirement of the concluding words of s 21A(2) by taking into account as an aggravating factor the fact that the offence involved the actual or threatened use of violence (s 21A(2)(b)) when such were elements of the offence.
In R v Wickham [2004] NSWCCA 193, Howie J, (with whom the other members of the court agreed) said:
[22] When a sentencing court is about to consider matters of aggravation or mitigation under s 21A it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides:
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence.
In R v Way (2004) 60 NSWLR 168, this Court held:
[106] As s 21A(2)(e) makes clear, the factors, which are elements integral to the offence, are not to be taken, of themselves, as aggravating factors. For example, the bare fact that an offence was committed in company where that is an element of the offence… cannot have an additional or cumulative effect.
[107] That is not to say, however, that the nature and extent of the company, and the manner in which their presence and behaviour add to the menace of the occasion, cannot be regarded as circumstances relevant to the seriousness of the actual offence which is charged. Clearly the presence of a large number of overbearing and powerful companions can dramatically increase the objective seriousness, and moral culpability, of those who engage in a sexual assault of a lone victim, and s 21A(2)(e) should not be regarded as excluding a reference to any such consideration.
The sentencing judge’s reference to aggravating factor (2)(b) followed the comment:
It is also necessary for the court to take into account aggravating…factors under s 21A. Section 21A(2) provides aggravating factors to be taken into account. These are….
In these circumstances it is difficult to avoid the conclusion that his Honour infringed the requirement of the concluding words of s 21A(2) and I conclude error has been demonstrated in this regard. However, the Remarks on Sentence otherwise do not suggest his Honour gave any additional or cumulative effect to this factor and the infringement, in my opinion, is of little practical significance.
Particular Two – The sentencing Judge erred in finding additional aggravating factors which were not available to him on the facts of the case.

The applicant submits his Honour erred in his findings as to aggravating factors (2)(d), (f), (g) and (l).
Section 21A(2)(d)
His Honour correctly stated the applicant had a lengthy history of convictions. The applicant however, relied upon the comments of Howie J in R v Wickham to demonstrate error.
In R v Wickham, Howie J held:
[23] The second limitation is that found in s 21A(4), which provides:
The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law.
[24] This provision can operate in one of two ways. Firstly, it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3). For example, s 21A(2)(d) provides that an aggravating feature is that, “the offender has a record of previous convictions”. On its face, that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence, but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community; R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle; R v Johnson [2004] NSWCCA 76.
The context in which his Honour made reference to factor (2)(d) suggests error has occurred. However, the Remarks on Sentence, considered as a whole, do not indicate this had any material impact on the ultimate sentence.

Section 21A(2)(f), (g)

The applicant submitted his Honour found as an aggravating factor that the offence involved “gratuitous cruelty” (subsection (2)(f)) and that, on the facts before the court, this finding was “simply wrong”. The applicant submitted gratuitous cruelty involved actions significantly more serious that two punches to the face, punches that caused pain but no noticeable or lasting damage or injury.
The Macquarie Dictionary defines gratuitous, inter alia, as “being without reason, cause or justification”. The same dictionary defines cruelty, inter alia, as “causing, or marked by, great pain or distress.” Clearly, the application of (2)(f) depends upon matters of fact and degree.
However his Honour did not determine the issue. He merely said, “One might reasonably argue that was the case”.
The applicant also submitted his Honour found as an aggravating factor that there was substantial injury (subsection (2)(g)) caused by the offence, and in making this finding his Honour was “simply wrong”. It was submitted that an assault such as this, although serious because it must have caused the victim considerable anxiety and in its potential for greater physical harm, could never be regarded as causing “substantial injury”.
The Macquarie Dictionary defines “substantial” as, “of ample or considerable amount, quantity, size”. The application of (2)(g) clearly raises questions of fact and degree as to which minds may differ.
His Honour did not find the injury was substantial. He merely said, “It depends upon one’s interpretation of the word ‘substantial’”.
In Wickham, Howie J held:
[31] It is also, in my view, unsatisfactory for a court to refer to a factor of aggravation or mitigation without making a finding as to whether it existed or not, or without indicating that no finding was being made as to the presence or absence of that particular factor.
The sentencing judge’s comments as to factors (2)(f) and (2)(g) are open to the criticism made by Howie J in Wickham. However, in my opinion, it would be unproductive to pursue the issue. His Honour was well aware of the nature of the punches and their effect as disclosed by the evidence. Section 21A(1)(c) of the Act directs the court, in determining the appropriate sentence for an offence, to take into account, “Any other objective or subjective factor that affects the relative seriousness of the offence”. In my opinion, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence, which factor his Honour was entitled to take into account in determining the appropriate sentence, whether it be an aggravating factor within a category specified in s 21A(2) or simply taken into account pursuant to s 21A(1)(c).

Section 21A(2)(l)

His Honour expressly found aggravating factor (2)(l) (“The victim was vulnerable”) established. He explained what he meant in the context of this case as follows:
As I said, the victim was on a railway station. It is common for the Courts to see a modus operandi involving railway stations and persons on railway stations. The fact that that is a common matter is not something that I have taken into account in either aggravation or mitigation of the offence here but merely note the fact of what is regularly observed in these Courts. The fact that somebody is on a railway station, that they are on the railway station in circumstances where it is difficult for them to escape, with the drop onto the railway tracks on each side, is well known.
The applicant did not assert in his written submissions, or initially, orally, that his Honour had erred in finding that the victim was vulnerable. However in the course of argument such an assertion was made, the submission being that such a categorisation was confined to victims of the type referred in the examples given in subsection (2)(l) – see R v Williams [2005] NSWCCA 99 per Buddin J at [41].
The matters which caused his Honour to categorise the victim as vulnerable were objective factors which affected the relative seriousness of the offence, and which his Honour was entitled to take into account pursuant to s 21A(1)(c) if those matters were not appropriately categorised as within s 21A(2)(l). Accordingly, it is unnecessary and unproductive to seek to determine the precise meaning and extent of the word “vulnerable” in s 21A(2)(l).
Particular Three – his Honour failed to properly take into account the applicant’s intellectual deficits.
The applicant submitted that, “When his Honour came to consider matters in mitigation, he did not have any regard to s 21A(3)(j) (‘the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability’)”.
The applicant relied upon a report of a psychologist who had seen the applicant on one occasion. He had administered various psychological tests to the applicant and had reported,
This man tested out in the bottom 1 per cent of the population on measures of intelligence. His composite IQ score of 67 places him into the Mild Mental Retardation range, which includes scores from 50 - 55 to about 70. The Diagnostic and Statistical Manual of Mental Disorders IV describes this group as “capable of achieving social and vocational skills adequate for minimal self-support but may need supervision, guidance and assistance, especially when under unusual social or economic stress”. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.

His Honour referred at length to the psychiatric report in his Remarks on Sentence and set out the material quoted above. It is clear his Honour had this material in mind at the time of sentencing the applicant.

As Wood CJ at CL said in R v Matthews (2004) 145 A Crim R 445:
Each case will depend upon the nature and degree of the impairment, the extent of its contribution to the offence, and whether or not the sentence can be seen, in the particular circumstances, of that case to have a deterrent value, either specifically or generally. An individual assessment is necessary, and a bare invocation of the presence, in an offender, of a low level of intellectual functioning, or mental disorder, as a circumstance requiring moderation in sentence, is likely to be both misleading and unhelpful.
In the present circumstances, though it may be the psychologist was correct in attributing a low level of intellectual functioning to the applicant, the evidence does not establish the applicant was not fully aware of the nature and consequences of his actions and there was no basis to reduce the sentence in this regard.
Particular Four – his Honour erred in failing to give the applicant the full benefit of his early plea of guilty.
His Honour said in his Remarks on Sentence:
The offender was arrested on 22 June 2003. He entered a plea of guilty before the Parramatta Local Court on 6 November 2003. He is entitled to some discount for his plea of guilty and for its utilitarian value. In this regard, however, it is to be observed that he was arrested at the scene. He was charged and entered into custody on that day…
So far as the question of remorse is concerned, the letter to which I have referred tendered on behalf of the offender and the evidence which he gave indicate perhaps some change, slow though it has been, in his approach to acknowledging the serious nature of his offences and the fact that he should accept that his actions were contrary to any reasonable community expectations…
This is not a case in which it is easy to indicate the degree to which I propose to take into account the plea of guilty, but I consider that something of about 15 to 20 per cent for the utilitarian value of the plea, and the fact of the plea should be taken into account.
The applicant submitted, in effect that:
a) His Honour in his Remarks on Sentence spoke of a “discount for his plea of guilty and for its utilitarian value”. This indicated that something less than 15-20% was allowed by his Honour for the utilitarian value of the plea and demonstrated error;
b) His Honour’s reference to the fact that the applicant was arrested at the scene and was charged and entered into custody on that day indicated that his Honour had erroneously taken into account the strength of the Crown case in determining the discount for the utilitarian value of the plea;
c) As the plea was entered at the first opportunity and prior to committal for sentence or trial, his Honour’s failure to give the applicant the full value of his plea (i.e. a discount of 25% for its utilitarian value) indicated error.
The relevant principles in respect of the discount for a plea of guilty are to be found in R v Thomson (1999-2000) 49 NSWLR 383, a guideline judgment of a five member Bench of this Court. The Court there held inter alia:

1.
It has long been the practice of this Court that a plea of guilty should attract a lower sentence than would otherwise be imposed. Three reasons are usually advanced to justify this practice. First, the plea is a manifestation of remorse or contrition. Secondly, the plea has a utilitarian value to the efficiency of the criminal justice system. Thirdly, in particular cases – especially sexual assault cases, crimes involving children and, often, elderly victims – there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence [3] ….

2.
(a) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence [152] and [160 (iii)]
(b) The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge [153].
(c) There are two circumstances which will generally affect the appropriate level of discount in a particular case [154].
(i) the time at which a plea is entered. A plea entered at committal has more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) the complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.

3.
(a) The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition, and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse [118].

(b) Furthermore, the plea is, of itself, equivocal with respect to remorse. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case a plea does not indicate genuine remorse or contrition [117].

(c) To similar effect, in R v Bishop, Hunt CJ at CL (with whom Smart J and McInerney J agreed) said (at 5-6):

“The degree of contrition evidenced by a plea of guilty depends to a large degree upon whether or not it resulted from a recognition of the inevitable…Where guilt would inevitably be discovered and established whatever attitude is adopted by the prisoner, a plea of guilty does not evidence any particular degree of contrition, so that leniency will be extended for the plea of guilty only so far as there is a utilitarian benefit in the savings of the time and cost of a trial…None of this is to say that contrition cannot still be taken into account. All that is said is that the plea of guilty does not evidence such contrition. (Thomson at [139])

4. It is:
…correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A “recognition of the inevitable” may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea [137].

His Honour’s reference to the “discount for his plea of guilty and for its utilitarian value” does suggest some element additional to the utilitarian value of the plea may have been included in the discount of 15-20%. However, this was not a case where there was a particular value in avoiding the need to call witnesses and the only factor additional to the utilitarian value of the plea was contrition. However his Honour did not consider there was evidence of early contrition and the plea was made in circumstances where the applicant’s conviction was inevitable. Any allowance for contrition by reason of the plea, would have been de minimis.
If his Honour’s reference to the fact that the applicant was arrested at the scene and was charged and entered into custody on that day indicated that he had taken the strength of the Crown case into account in assessing the discount for the utilitarian value of the plea, this would have demonstrated error – See Thomson at [137], R v Sutton [2004] NSWCCA 235 at [12]. However, if such had been taken into account, a discount much less than 15 – 20% for the utilitarian value of the plea would have resulted. I would not infer his Honour made such an error. It is far more likely that the early arrest was referred to by his Honour as a factor relevant to contrition by reason of the inevitability of conviction or the lack of complexity of the issues about which evidence would have to be gathered and adduced.
The guidelines in R v Thomson create no presumption of, or entitlement to, a particular discount – R v Scott [2003] NSWCCA 286 at [28]. The submission that a plea of guilty coming at the earliest opportunity should automatically result in a 25% discount, seeks to convert the upper limit of a guideline range into a rule. A discount of 10 - 25% is within the guideline range. The determination where the discount should fall in a particular case is a matter for the discretion of the sentencing judge. The fact that the discount given is less than 25% does not bespeak error.
In my opinion no error has been demonstrated in respect of the discount allowed by his Honour by reason of the plea of guilty.
Particular Five – his Honour failed to properly balance the serious objective circumstance of this offence with the subjective case for the offender.
His Honour held:
The problems in this case are simply that the offender is not of good character. Indeed, without a significant change of his life he is likely to re-offend. His prospects of rehabilitation, whilst they have improved since he has been in prison, are nevertheless matters of conjecture…
I consider that the nature of the crime, the violence involved in it, the vulnerability of the victim and the criminal history of the offender all lead the court to the view that this was an extremely serious offence requiring significant general and specific deterrence. In my opinion there is no other option than imprisonment …. The prisoner’s background and the objective seriousness of this offence and his criminal history demand that be so.
His Honour expressly stated he had regard to the subjective matters relating to the applicant which he set out at considerable length in his Remarks on Sentence. He also had regard to mitigating factors, namely there was no evidence of any permanent damage to the victim; while there was some planning there was not an organised criminal activity and that, according to the offender, it was something that he did relatively on the spur of the moment affected by alcohol and, his Honour suspected, drugs.

His Honour had regard to the fact that the evidence did not disclose the extent of the harm caused by the punch, despite the severity of it as indicated by the eyewitness account. He found special circumstances on the basis:
Where an offender is of an age of this offender, where he has been on drugs, where he has consumed alcohol, where he has many previous convictions at a very young age, it is clear that when he is released from prison he will need the support of the community to be able to be rehabilitated. In that regard I am of the view that there should be, to take into account such matters, a finding of special circumstances.
The serious objective circumstances and the applicant’s criminal antecedents heavily outweighed the subjective case for the applicant. In my opinion, it has not been demonstrated that his Honour failed to properly balance those matters.
Conclusion
“The decision of the primary judge must….be regarded as prima facie correct…” – Whittaker v The King (1928) 41 CLR 230 at 249, R v Holder (1983) 3 NSWLR 245 at 253 B-E. An appellate court does not interfere with a sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error – R v Tait (1979) 46 FLR 386 at 388, and then only if it forms the positive opinion that some other sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79].
It must be remembered that, “Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision” – Pearce v The Queen (1998) 194 CLR 610 at 624 [46].
As earlier recorded, I have concluded errors arose in the application of s 21A in this case. However, such errors, in my opinion, did not impact in any significant manner upon the sentence determined by his Honour.
That sentence represents the conclusion of an experienced District Court Judge reached after reserving judgment on sentence, and with the benefit of hearing the applicant give evidence before him. The sentence, whilst high, is not such, when regard is had to all the circumstances and in particular the applicant’s criminal antecedents, as to cause me to conclude that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
HALL J: I agree with Hislop J.

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LAST UPDATED: 08/06/2005