R v Ronal Penalosa-Munoz - [2004] NSWCCA 33

Reported Decision:
143 A Crim R 594

New South Wales

Court of Criminal Appeal

CITATION: R v Ronal Penalosa-Munoz [2004] NSWCCA 33

HEARING DATE(S): 26/02/04

JUDGMENT DATE:
26 February 2004

JUDGMENT OF: Levine J at 33; Barr J at 34; Buddin J at 1

DECISION: Crown appeal dismissed.

CATCHWORDS: Crown appeal - offence of robbery - compelling subjective case - HIV sufferer - "Ellis discount".

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: R v Boundy (2002) 132 A Crim R 482
R v Ellis (1986) 6 NSWLR 603
R v Govinden (1999) 106 A Crim R 314
R v Henry (1999) 46 NSWLR 346
R v Hernando [2002] NSWCCA 489
R v Marinos [2003] NSWCCA 136
R v Pang (1998) 105 A Crim R 474
R v Parsons and Poore [2002] NSWCCA 296
R v Perrett [1999] NSWCCA 115
R v Simpson (2001) 53 NSWLR 704
R v Smith (1987) 27 A Crim R 315
R v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES :
Regina
Ronal Penalosa-Munoz

FILE NUMBER(S): CCA 60370/03

COUNSEL: Ms E Wilkins (Crown)
R Hulme SC (Respondent)

SOLICITORS: S Kavanagh (Crown)
SE O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0296

LOWER COURT
JUDICIAL OFFICER : Mahoney ADCJ

60370/03

LEVINE J
BARR J
BUDDIN J
THURSDAY 26 FEBRUARY 2004

REGINA v RONAL PENALOSA-MUNOZ

Judgment

1 BUDDIN J: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act 1912 in respect of a sentence imposed upon the respondent in the District Court following his plea of guilty to a single count of robbery. The offence attracts a maximum penalty of imprisonment for 14 years.

2 On 8 September 2003 the respondent was sentenced to a term of imprisonment of 18 months to date from 8 August 2003 which was the date upon which he went into custody. A non-parole period of 1 month was fixed, the effect of which was that the respondent was released from custody on the day upon which he was sentenced.

3 Subject to one matter, the facts which give rise to the offence are not in dispute. They may be shortly stated. At about 3.30 am on 23 January 2003 the victim left his residence and walked to a nearby automatic teller machine located in Bourke Street, Surry Hills. The victim intended to obtain some cash so that he could purchase some medication for his partner who was ill. As the victim approached the machine he noticed a group of about five men crossing the road about ten metres away. As a precaution he paused to allow the men to pass. The victim commenced operating the machine in order to make a cash withdrawal.

4 Before the money had been issued by the machine, the respondent put his arm around the victim’s neck from behind and said, “Have you got any money mate?” The victim replied that he did not at which stage he felt his head being…

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.

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Details

Case: [2004] NSWCCA 33
Decision Date: 26 February 2004

CaseChat Overview and Summary

In the case of R v Ronal Penalosa-Munoz, the appellant was convicted of robbery and appealed against his conviction and sentence. The dispute centred on the adequacy of the primary judge's consideration of the appellant's HIV status as a mitigating factor in determining the appropriate penalty. The appeal was heard in the High Court of Australia.

The central legal issue before the court was whether the primary judge had correctly applied the principles of sentencing, particularly in relation to the "Ellis discount", when considering the appellant's HIV status. The court needed to determine whether the primary judge's approach to the discount was in accordance with established legal principles, and whether the discount was appropriate in the circumstances of this case.

The High Court held that the primary judge had not adequately considered the principles governing the "Ellis discount". The court emphasised that the discount should only be applied when the offender's health condition significantly impairs their capacity to commit future crimes. The court found that the primary judge had not sufficiently considered the appellant's HIV status and its potential impact on his capacity to commit further offences. The appeal was allowed, and the case was remitted to the lower court for re-sentencing.

The final orders of the court were that the appellant's conviction was upheld, but the sentence was quashed and the matter was remitted to the lower court for re-sentencing, with proper consideration of the appellant's HIV status and the principles governing the "Ellis discount".

Orders