Regina v Atonio - [1999] NSWCCA 266

CITATION: REGINA v. ATONIO [1999] NSWCCA 266

FILE NUMBER(S): CCA 60590 of 1998

HEARING DATE(S): Wednesday 18 August 1999

JUDGMENT DATE:
18 August 1999

PARTIES :

REGINA v.
ATONIO, Samuela

JUDGMENT OF: Wood CJ at CL at 22; Greg James J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0216

LOWER COURT JUDICIAL OFFICER: Goldring, DCJ.

COUNSEL: Crown: L.M.B. Lamprati
App: J. Stratton

SOLICITORS: Crown: S.E. O'Connor
App: T.A. Murphy

CATCHWORDS: Sentence - parity - sentence of co-accused on mistaken appreciation of number of offences of applicant - other circumstances similar - legitimate sense of grievance - armed robbery sentences on their face inadequate - necessity for higher sentences.

ACTS CITED: Crimes Act 1900

CASES CITED:
Stein [1999] NSWCCA 250;
Hodges (1997) 95 A. Crim R. 85;
Murray (CCA, unreported 11 September 1986);
Crotty (1993) 1 NSWLR 71;
Vu (CCa, unreported 11 September 1993);
Henry & Ors [1999] NSWCCA 111;
Ellis (1993) 68 A. Crim R. 449;
Hayes (1984) 1 NSWLR 740;
Flack (CCA, unreported 12 December 1989);
Smith (CCA, unreported 12 December 1989)

DECISION: Appeal allowed

-8-
IN THE COURT OF
CRIMINAL APPEAL
No. 60590 of 1998 CORAM: WOOD, CJ. at CL.
GREG JAMES, J.

WEDNESDAY 18 AUGUST 1999

REGINA v. SAMUELA ATONIO
JUDGMENT
1 WOOD,CJ. at CL: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: Application for leave to appeal is brought from the sentence imposed by His Honour Judge Goldring in the District Court on the applicant for the offence of armed robbery, contrary to s.97(2) of the Crimes Act. 3 His Honour sentenced the applicant to penal servitude for five years to commence on 9 April 1998. That sentence comprised a minimum term of three years and an additional term of two years. 4 The maximum sentence for such a crime is 25 years penal servitude. In the criminal calendar is one of the most serious of crimes. 5 When sentencing his Honour said:-

"The circumstances were that prisoner, with three other people, went early in the morning of 5 March 1998 to the Berala Hotel, which is apparently a 24 hour hotel. They were wearing balaclava helmets and they had with them a .22 pistol and a baseball bat, and some plastic material which was in fact used to tie people up.

The evidence before me suggests that they had planned to rob a hotel and at some stage they changed the hotel they planned to rob and they ended up at the Berala Hotel. There they threatened and overpowered two hotel staff and a security guard. They tied two of them and made them move to the toilet area. The third person, who was the manager of the hotel, was forced to open the safe and they removed a large amount of money, over $21,000 from the safe. They also robbed some sums of money from the persons of the people that they had tied up.

This was a very…

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 Regina v Atonio

Details

AGLC: Regina v Atonio [1999] NSWCCA 266
Case: [1999] NSWCCA 266
Decision Date: 18 August 1999

CaseChat Overview and Summary

In Regina v Atonio, the respondent, Atonio, appealed against his sentence for armed robbery. The case involved two co-accused who were sentenced by the same judge for similar offences. Atonio was sentenced to a term of imprisonment while his co-accused received a longer sentence, a discrepancy which Atonio claimed was due to the judge’s mistaken belief that he had committed fewer offences than his co-accused. The appeal was heard by the High Court of Australia.

The primary legal issue the court had to determine was whether the disparity in sentencing, based on a mistaken assumption by the sentencing judge, justified a revision of Atonio's sentence. The court also needed to assess if the original sentence was inadequate and whether the circumstances warranted a harsher punishment. The court considered whether the judge's error in the number of offences committed by Atonio constituted a significant factor that warranted altering the sentence.

The High Court found that the disparity in sentencing between Atonio and his co-accused was indeed a legitimate source of grievance. It concluded that the sentences imposed on both Atonio and his co-accused were, on their face, inadequate. The court held that, given the similarities in their circumstances, the sentences should have been more severe to reflect the seriousness of the armed robberies committed. Consequently, the court allowed the appeal, ordering a re-sentencing that appropriately reflected the gravity of the offences.

The final orders of the court required the lower court to re-sentence Atonio, ensuring that the new sentence would align with the appropriate severity for the crimes committed. The court emphasised the necessity for higher sentences to appropriately address the nature of the armed robberies and to rectify the initial sentencing disparity.

Orders