Citation: Regina v Toritto [1999] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 15 September 1999
Judge(s): Sully J; Simpson J
Background
The appellant, Franco Toritto, pleaded guilty before a Magistrate to two counts of robbery (or assault with intent to rob) under s 94 of the Crimes Act 1900, each carrying a maximum of 14 years' penal servitude. He also asked the sentencing court to take into account five further scheduled offences, including a further robbery, receiving a stolen motor vehicle, and driving while unlicensed.
All seven offences occurred in December 1997 and January 1998 in the inner western suburbs of Sydney. The two principal offences involved street robberies of women, carried out from a stolen panel van together with a co-offender, Thomas Giacalone. Crucially, all offences were committed while Toritto was at liberty on parole following earlier sentences imposed in the Sutherland Local Court in November 1996.
In the District Court, Gibson DCJ sentenced Toritto to four years' penal servitude on the first charge (minimum term three years, additional term one year), with a concurrent fixed term of 18 months on the second charge. Toritto appealed against the sentence, arguing it was excessive and that there was an appellable disparity between his sentence and that imposed on his co-offender Giacalone.
Legal Issues
- Whether the sentences imposed were manifestly excessive in all the circumstances.
- Whether there was an appellable disparity between the sentence imposed on Toritto and the sentence imposed on his co-offender Giacalone, either in terms of the aggregate length or the apportionment between minimum and additional terms.
Decision
The Court of Criminal Appeal endorsed the sentencing judge's assessment that the offences were objectively serious, noting that members of the public are entitled to walk the streets without being subjected to this kind of predatory conduct.
On the question of disparity with the co-offender, the Court examined the differences between the two cases. Giacalone received a longer aggregate sentence of seven years' penal servitude, compared to Toritto's four years. However, the Court found that Giacalone's greater aggregate sentence was justified by two material distinctions: the sentencing judge had found positive subjective features in Giacalone's case (including a dependent child and demonstrated family support) that warranted a more optimistic view of his rehabilitation prospects, and, critically, Giacalone's offences were not committed while he was on parole.
On the apportionment comparison, Giacalone would serve a minimum of 3.5 years of his 7-year sentence, while Toritto would serve 3 years of his 4-year sentence. The Court acknowledged that absolute comparability might have been achieved by re-apportioning Toritto's sentence to a 2-year minimum with a 2-year additional term. However, having regard to the gravity of the offences and the fact that all were committed while Toritto was on parole, the Court was not persuaded that such interference was warranted in law under s 6(1) of the Criminal Appeal Act.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Committing offences while at liberty on parole is treated as a seriously aggravating factor by sentencing courts, and the Court of Criminal Appeal confirmed its significance here in resisting appellate interference with the sentence.
- In dismissing the disparity argument, the Court compared both the aggregate sentences and the apportionment of minimum and additional terms between co-offenders, finding that the differences were justified by differences in subjective circumstances and parole status.
- A finding of appellable disparity requires more than mathematical inconsistency between sentences imposed on co-offenders; material differences in subjective features and offending context can legitimately explain divergent outcomes.
- No error was established in the sentencing judge's exercise of discretion, and the Court declined to interfere solely to achieve arithmetic parity where the underlying circumstances did not warrant it.
- The decision raises no novel question of principle and turns entirely on the application of established sentencing considerations to the facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery; assault with intent to rob)
- Criminal Procedure Act 1986 (NSW) (scheduled offences procedure)
- Sentencing Act (NSW)
- Criminal Appeal Act (NSW), s 6(1) (test for appellate interference with sentence)
Cases cited: None cited in the judgment.