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Court of Criminal Appeal 14 July 2011

Santo v R

[2011] NSWCCA 156

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL HEAD SENTENCE AND NON PAROLE EXCESSIVE OBJECTIVE RANGE OF SERIOUSNESS ERROR IN FINDINGS OF FACT TOTALITY PRINCIPLE

Citation: Santo v R [2011] NSWCCA 156
Court: Court of Criminal Appeal, NSW
Date: 14 July 2011
Judge(s): McClellan CJ at CL (with whom Hidden J and Grove AJ agreed)

Background

The appellant was convicted by a jury of wounding with intent to cause grievous bodily harm and robbery whilst armed with wounding, both under the Crimes Act 1900. Each offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. At the time of the offences, the appellant was on conditional bail for an earlier robbery in company.

The offences were committed against an 84-year-old man at his Ashfield flat. The appellant had met the victim at a bar at Central Railway Station and accompanied him home. She then lured the victim into an undressed and vulnerable position, smashed a vodka bottle, and used it to inflict multiple serious stab wounds to his neck and back before leaving with his mobile phone and $250 cash. The victim was hospitalised for nearly two weeks and required rehabilitation.

The sentencing judge found that the attack was planned, that the appellant had decided to rob the victim at least by the time they left the bar together, and that her evidence at trial was deliberately and calculatedly dishonest. She was sentenced to 13 years imprisonment for each offence (concurrent), with a non-parole period of nine years and nine months.

  • Whether the individual head sentences and non-parole periods were excessive
  • Whether the sentencing judge erred in placing the offences substantially above the mid-range of objective seriousness
  • Whether the sentencing judge made findings of fact unsupported by evidence
  • Whether the sentencing judge failed to properly apply the totality principle in relation to the earlier sentence being served
  • Whether special circumstances existed warranting adjustment to the non-parole period ratio
  • Whether the aggregate head sentence and non-parole period were excessive

Decision

The Court of Criminal Appeal dismissed all six grounds of appeal. On objective seriousness, McClellan CJ at CL held that the sentencing judge's finding of substantial above-mid-range seriousness was clearly open. The planning involved, the commission of the offences in the victim's home, the victim's age and vulnerability, and the sustained and serious nature of the physical and psychological injuries all supported that conclusion. The Court noted it is reluctant to interfere with such findings, which fall within the sentencing judge's discretion.

On the contested finding of fact, the Court found no inconsistency in the sentencing judge's conclusion that the appellant had formed the intention to rob the victim when leaving the bar, even if the specific method of violence crystallised later. The sentencing judge's credibility findings were clearly open given the evidence.

Regarding totality, the Court was satisfied the sentencing judge was conscious of the principle and had deliberately structured the new sentences to commence upon expiry of the non-parole period of the earlier sentence. No error was identified in that approach. On special circumstances, the Court held the sentencing judge's refusal to make such a finding was also within discretion, particularly given the assessment that the appellant's rehabilitation prospects were dubious and the parole period under the existing structure exceeded three years.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an offence falls on the scale of objective seriousness is a matter within the sentencing judge's discretion, and the appellate court will be reluctant to intervene with that finding.
  • Apparent tension between factual findings at sentencing does not constitute error where the findings are reconcilable on a fair reading of the sentencing remarks as a whole.
  • No general rule requires sentences to be imposed concurrently rather than consecutively; accumulation and concurrency are discretionary matters for the sentencing judge, provided the totality principle is genuinely considered.
  • A finding of special circumstances is also discretionary; where a sentencing judge concludes that rehabilitation prospects are poor and the existing parole period is adequate, no such finding is required.
  • In dismissing the appeal, the Court confirmed that sentences substantially exceeding the standard non-parole period can be appropriate where planning, victim vulnerability, and the severity of injuries place offences well above the middle of the range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 98

Cases:
- 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