R v Atonio

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. The applicant has sought leave to appeal against that sentence on the ground that the sentence imposed is manifestly excessive.

  7. The facts of the offence, as stated by the…

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Details
AGLC
R v Atonio [2005] NSWCCA 200
Case
[2005] NSWCCA 200
Decision Date

CaseChat Overview and Summary

In the case of R v Atonio, the applicant appealed against his conviction and sentence. The applicant, who had a lengthy history of convictions, was found guilty of assault occasioning actual bodily harm. The sentencing judge referenced several aggravating factors under the Crimes (Sentencing Procedure) Act 1999 s 21A, leading to a challenge on the application of these factors. The primary issues in the appeal concerned whether the sentencing judge correctly identified and applied the aggravating factors and whether any errors in this regard significantly impacted the overall sentence.

The court examined whether the sentencing judge's reference to certain aggravating factors, such as the applicant's history of previous convictions and the nature of the assault, complied with the statutory requirements and common law principles. The applicant argued that the sentencing judge erred in considering some factors as aggravating when they should not have been given additional weight. The court noted that while there were some errors in the application of s 21A, these did not substantially influence the final sentence. The sentencing judge, an experienced District Court Judge, had balanced the circumstances and the applicant's criminal antecedents appropriately.

The court concluded that the sentence, while high, was not excessive given the circumstances, particularly the applicant's criminal history. It held that the appellate court should not interfere with the sentence unless it was shown that the sentencing judge was in error and that a different sentence was warranted in law. The appeal was thus dismissed, and leave to appeal was granted. The orders included granting leave to appeal but dismissing the appeal itself.

Orders

Orders of the court

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Background

Background to the litigation

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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAMES J
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.

Ratio Decidendi

Legal Principle Established

Established by: JAMES J

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