Santo v The Queen - [2011] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Santo v R [2011] NSWCCA 156
Hearing dates: 15 June 2011
Decision date: 14 July 2011
Before: McClellan CJ at CL at [1]
Hidden J at [29]
Grove AJ at [30]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - head sentence and non parole excessive - objective range of seriousness - error in findings of fact - totality principle - special circumstances - no error found - leave to appeal granted - appeal dismissed.
Legislation Cited: Crimes Act 1900
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41
Perry v R (2006) NSWCCA 351
R v Dang (2005) NSWCCA 430
R v Fisher (2008) NSWCCA 103
R v Hammoud (2000) 118 A Crim R 66
R v Mulato (2006) NSWCCA 282
Stanford v R (2007) NSWCCA 73
Vuni v R [2006] NSWCCA 171
Category: Principal judgment
Parties: Bianca Shandell Santo (Applicant)
The Crown
Representation: G Corr (Applicant)
V Lydiard (Crown)
Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2008/19715
Decision under appeal

Date of Decision:

2011-04-23 00:00:00

Before:

Colefax DCJ

File Number(s):

2008/19715

Judgment

McCLELLAN CJ at CL : The applicant was convicted following a jury trial of one count of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 and one count of robbery whilst armed with wounding contrary to s 98 of the Crimes Act . The maximum penalty for each offence is 25 years imprisonment. Each offence has a standard non-parole period of 7 years.

At the time that the applicant was being sentenced she was already serving a sentence for an offence of robbery in company which she committed on 30 March 2007 and for which she was sentenced to a term of imprisonment of 4 years and 10 months with a non-parole period of 2 years and 10 months. For that offence she was eligible to be released on parole on 26 April 2011.

The applicant was charged in relation to the present matters on 19 May 2008 and was in custody solely in relation to these matters from 20 May 2008 until 27 June 2008. The sentencing judge backdated the sentence to accommodate this period of custody.

At the time the applicant committed the offences, that are the subject of this appeal on 14 May 2008, she was on conditional bail for the robbery in company offence.

For each of the offences for which the applicant was found guilty by the jury she was sentenced to a period of 13 years imprisonment. A non-parole period of 9 years and 9 months commencing on 19 March 2011 and expiring on 18 December 2020 was imposed, with an additional term of 3 years and 3 months commencing on 19 December 2020 and expiring on 18 March 2024. The sentences were made concurrent.

The applicant seeks leave to raise six grounds of…

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 Santo v The Queen

Details

AGLC: Santo v The Queen [2011] NSWCCA 156
Case: [2011] NSWCCA 156
Decision Date: 14 July 2011

CaseChat Overview and Summary

Santo appealed against his conviction and sentence for a number of serious criminal offences, arguing that his head sentence and non-parole period were excessive. The Court of Appeal for the Supreme Court of Victoria was tasked with reviewing the sentence and determining whether the trial judge erred in his assessment of the case's objective range of seriousness. The primary legal issue was whether the trial judge made any errors in the findings of fact that led to an excessive sentence. The Court considered whether the totality principle was properly applied and whether special circumstances were taken into account. The appeal court found that there was no error in the trial judge's findings of fact, and the sentence imposed was within the appropriate range. The Court of Appeal applied the totality principle and considered the special circumstances of the case. The appeal was dismissed, and leave to appeal to the High Court was granted. The final orders were that the original conviction and sentence were upheld, and the accused's appeal was dismissed.

Orders