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7
Court of Criminal Appeal 7 June 2005

Regina v Tamilo ATONIO

[2005] NSWCCA 200

Also reported as 154 A Crim R 183
Assault & violence
CRIMINAL LAW SENTENCING UTILITARIAN VALUE OF PLEA.

Citation: Regina v Tamilo Atonio [2005] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 7 June 2005
Judge(s): James J, Hislop J, Hall J

Background

The appellant pleaded guilty in the District Court to assault with intent to rob in circumstances of aggravation, contrary to s 95(1) of the Crimes Act 1900. The offence occurred at Granville railway station, where the appellant, who appeared intoxicated, demanded money and a mobile phone from a victim of smaller build and, after being refused, punched him twice in the face. The appellant was then aged in his early twenties and had a significant criminal history, including prior convictions for robbery and aggravated robbery, and was on a bond and parole at the time of the offence.

The District Court sentenced the appellant to a total of five years' imprisonment with a non-parole period of three years. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, raising five specific grounds of error in the sentencing process.

  • Whether the sentencing judge erred by treating an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 that was already an element of the offence as an additional reason to increase the sentence
  • Whether the sentencing judge made findings of aggravation (specifically, gratuitous cruelty, substantial injury, and victim vulnerability) that were not supported by the facts
  • Whether the sentencing judge failed to adequately account for the appellant's intellectual deficits as a mitigating factor
  • Whether the sentencing judge failed to give the appellant the full utilitarian benefit of his early guilty plea
  • Whether the sentencing judge failed to properly balance the objective seriousness of the offence against the subjective circumstances of the offender

Decision

The Court of Criminal Appeal accepted that errors did occur in the sentencing judge's application of s 21A. In particular, the Court found no factual basis for findings of gratuitous cruelty, substantial injury, or victim vulnerability. James J noted that the victim did not fall within any of the examples given in s 21A(2)(l) for vulnerability, the offence occurred in the early evening, and two witnesses were present within close proximity.

The Court also confirmed that a sentencing judge must not merely raise a possible circumstance of aggravation or mitigation in passing: if such a circumstance is mentioned, the judge must proceed to make a clear finding about whether it has or has not been established. Leaving the matter unresolved is itself an error.

Despite identifying errors in the application of s 21A, the Court concluded that those errors had no significant impact on the sentence actually imposed. The Court emphasised that sentencing is not a mathematically precise exercise, and an appellate court will only interfere where an error is demonstrated and a different sentence is warranted in law. Given the appellant's serious criminal antecedents, the Court was not persuaded that a lesser sentence should have been imposed.

On the remaining grounds, the Court found that the sentencing judge had adequately addressed the appellant's intellectual deficits, had given appropriate credit for the guilty plea, and had properly balanced the objective and subjective circumstances. The appeal was therefore dismissed, though leave to appeal was granted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge who raises a possible aggravating or mitigating circumstance under s 21A of the Crimes (Sentencing Procedure) Act 1999 must make a definitive finding about whether that circumstance is established, rather than leaving it unresolved.
  • Under s 21A(2), the court is expressly prohibited from treating a factor as an additional aggravating consideration if that factor is already an element of the offence charged.
  • No factual basis existed, on these facts, for findings of gratuitous cruelty, substantial injury, or victim vulnerability simply because a victim was of smaller build and was punched twice without lasting physical injury.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that errors in a sentencing judge's reasons do not automatically warrant appellate intervention: the appellate court must be positively satisfied that a different sentence is warranted in law.
  • Appellate courts approach sentencing decisions on the basis that the primary judge's sentence is prima facie correct, and will only intervene where error is both demonstrated and consequential to the outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(1)-(3)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Holder (1983) 3 NSWLR 245
- R v Matthews (2004) 145 A Crim R 445
- R v Scott [2003] NSWCCA 286
- R v Simpson (2001) 53 NSWLR 704
- R v Sutton [2004] NSWCCA 235
- R v Tait (1979) 46 FLR 386
- R v Thomson (1999-2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- R v Wickham [2004] NSWCCA 193
- R v Williams [2005] NSWCCA 99
- Whittaker v The King (1928) 41 CLR 230