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Court of Criminal Appeal 12 September 2008

Antonio v R

[2008] NSWCCA 213

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ROBBERY MENTAL ILLNESS CROWN APPEAL SENTENCE MANIFESTLY INADEQUATE

Citation: Antonio v R [2008] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 12 September 2008
Judge(s): McClellan CJ at CL, Barr J, Price J

Background

The appellant had pleaded guilty in the District Court at Penrith to two robbery offences committed in September 2006. The first was robbery in company at a bus terminal in Mount Druitt, where he intimidated a 23-year-old victim into handing over a mobile phone, watch, and $190 in cash. The second was a robbery at a clothing hire shop in Blacktown, where he falsely claimed to have a pistol and took $400 from the till. Several related matters, including an intimidation offence and four charges of goods in custody, were taken into account on a Form 1.

The District Court sentenced the appellant to an overall effective term of 7 years and 6 months, with a non-parole period of 4 years and 6 months. The primary sentence of 7 years and 6 months was imposed for the s 94 robbery, with a concurrent fixed term of one year for the robbery in company.

Both the appellant and the Crown appealed. The appellant contended the sentences were manifestly excessive and that the sentencing judge had misidentified aggravating factors. The Crown cross-appealed on the ground that the one-year fixed term for the robbery in company was manifestly inadequate.

  • Whether the sentencing judge erred in identifying certain features of the offences as statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, specifically whether the threatened use of force was an aggravating factor in a robbery offence where such a threat is an element of the offence itself.
  • Whether the judge correctly applied the special circumstances finding to adjust the ratio between the non-parole period and the balance of term under s 44(2).
  • Whether the sentence imposed for the s 94 robbery was manifestly excessive.
  • Whether the fixed term of one year imposed for the robbery in company (s 97(1)) was manifestly inadequate.
  • What weight, if any, the appellant's mental illness should have in assessing personal deterrence and protection of the community.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred by treating the threatened use of force as an aggravating factor. Because such a threat is an element of the robbery offences charged, it cannot separately aggravate the sentence. This error infected the sentence for the s 94 robbery, rendering it manifestly excessive.

On the question of mental illness, the Court accepted that the appellant's condition was a relevant mitigating consideration. However, the Court also held that the mental illness did not substantially diminish the weight to be given to personal deterrence and the protection of the community, particularly given that the offences were committed the day after the appellant was released on parole.

The Court agreed with the Crown that the one-year fixed term for the robbery in company was manifestly inadequate. The offence involved a group intimidating a lone victim at night. A fixed term of two years was described as sitting at the bottom of the available range, having regard to all the circumstances including the mental illness.

Despite both appeals succeeding on their respective grounds, the Court found that the overall effective sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months remained appropriate to reflect the total criminality involved. The sentences were restructured rather than reduced: the robbery in company sentence was increased to a 2-year fixed term, while the s 94 robbery sentence was reduced, preserving the same aggregate outcome.

Orders Made

  • Leave to appeal granted to the appellant.
  • Appellant's appeal allowed.
  • Crown appeal allowed.
  • Sentences imposed in the District Court on 17 July 2007 quashed.
  • For the robbery in company (s 97(1)): fixed term of 2 years' imprisonment commencing 23 September 2006 and expiring 22 September 2008.
  • For the robbery (s 94): non-parole period of 3 years commencing 23 March 2008 and expiring 22 March 2011, with a balance of term of 3 years commencing 23 March 2011 and expiring 22 March 2014.
  • Overall effective sentence: non-parole period of 4 years and 6 months from 23 September 2006, with a balance of term of 3 years expiring 22 March 2014.
  • Special circumstances found, being the accumulation of the second sentence on the fixed term.
  • Earliest parole eligibility date: 22 March 2011.

Key Takeaways

  • A sentencing court cannot treat the threatened use of force as a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 where that threat is already an element of the robbery offence being sentenced.
  • Mental illness may be a mitigating factor in sentencing, but the Court of Criminal Appeal confirmed it does not automatically reduce the weight given to personal deterrence and community protection, particularly where the offending is serious and occurred shortly after release on parole.
  • Both the appellant's and the Crown's appeals succeeded, yet the Court preserved the same aggregate sentence by restructuring the individual terms. This illustrates that the totality principle governs the overall outcome even when individual sentence components are adjusted on appeal.
  • In dismissing the adequacy of a one-year fixed term for a group robbery at night, the Court confirmed that the gravity of robbery in company carries significant sentencing weight regardless of the offender's mental health history.
  • Under s 5D of the Criminal Appeal Act 1912, a Crown cross-appeal preserved the Crown's position in circumstances where the Court's approach to combining ss 6(3) and 7(1A) of that Act remained unsettled.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 97(1), 527(1)(a), 562AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Hamze v Regina [2006] NSWCCA 36
- Pearce v The Queen (1998) 194 CLR 610
- R v Bottin [2005] NSWCCA 254
- R v Hemsley [2004] NSWCCA 228
- R v Huynh [2005] NSWCCA 220
- R v Smith [2005] NSWCCA 339
- R v Tobar (2004) 150 A Crim R 104
- R v Way (2002) 60 NSWLR 168
- R v Wickham [2004] NSWCCA 193
- Regina v Wall [2002] NSWCCA 42