AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 17 November 2011

AUIMATAGI v R

[2011] NSWCCA 248

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL PARITY.

Citation: AUIMATAGI v R [2011] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 17 November 2011
Judge(s): McClellan CJ at CL, Adams J, Hoeben J

Background

The appellant was a 19-year-old man who, in the early hours of 25 November 2009, participated in a detailed conspiracy to rob a petrol station at Blacktown while armed with knives. The group, which included four other individuals, had spent 30 to 40 minutes conducting surveillance, distributing gloves and masks, and discussing how to execute the robbery before police intercepted them. The appellant had played a central organising role: he recruited at least one co-participant, identified the target, directed the group's movements, and proposed the method of attack.

The appellant pleaded guilty in the Penrith Local Court and was later sentenced in the District Court to a total term of imprisonment comprising a non-parole period of 2 years (commencing 24 February 2010) and a balance of term of 1 year and 9 months. He also asked the sentencing judge to take into account a related Form 1 matter of possessing disguise materials with intent to commit an indictable offence.

The appellant then sought leave to appeal to the Court of Criminal Appeal, challenging several aspects of the sentence.

  • Whether the sentencing judge erred by treating the fact that the offence was committed "in company" as an aggravating factor on a charge of conspiracy to commit armed robbery.
  • Whether the commencement date of the sentence should have been backdated to 25 November 2009, rather than 24 February 2010.
  • Whether the sentence gave rise to a justified sense of grievance when compared to the sentences received by co-offenders, particularly Iose (the parity ground).
  • Whether the sentence was manifestly excessive.
  • Whether the sentencing judge erred by failing to adjust the non-parole period under s 44 of the Crimes (Sentencing Procedure) Act 1999 despite finding special circumstances.

Decision

In company as an aggravating factor: The Court accepted that the sentencing judge had erred in treating "in company" as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999. That factor cannot apply where it is already an element of the substantive offence. However, the Court noted that the involvement of multiple offenders in a conspiracy is, by its nature, an inherent feature of the charge and that the judge could properly have regard to the nature and extent of the joint enterprise as part of the overall objective criminality, even if the specific statutory aggravating factor was not available.

Backdating: The Court rejected the argument that the sentence should have been backdated to the date of arrest. While a sentencing court has the discretion to backdate a sentence, it is not obliged to do so. The sentencing judge's choice of commencement date was explained by logical and relevant reasons, including the structure of the applicant's pre-existing custody periods, and no error was established.

Parity: The Court found no justified sense of grievance when the applicant's sentence was compared with that of Iose. Iose had no prior criminal record, had attempted to disengage from the conspiracy by refusing to carry a knife and trying to dissuade others, and had played a lesser role. The difference in starting points for head sentences (4 years for Iose, 5 years for the applicant) properly reflected these distinctions.

Manifest excess and special circumstances: No separate reasoning on manifest excess or the special circumstances ground appears in the portions of the judgment provided, but the Court ultimately dismissed the appeal in its entirety after considering all grounds.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court cannot apply the statutory "in company" aggravating factor where that feature is already inherent in the offence charged; however, the scale and nature of a joint enterprise may still bear on objective seriousness more generally.
  • No principle of sentencing law requires a sentence to be backdated to the date of arrest; the choice of commencement date lies within the sentencing court's discretion, provided the reasoning is logical and relevant.
  • Where co-offenders differ substantially in criminal history, role, and conduct during the offence (including any attempt to withdraw), a significant difference in sentence starting points may be entirely consistent with the parity principle.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a difference of 12 months in head sentence starting points between a ringleader with an extensive prior record and a first-time offender who tried to disengage did not give rise to a justifiable sense of grievance.
  • Conspiracy to commit robbery while armed with an offensive weapon carries a maximum of 20 years' imprisonment, consistent with the maximum for the substantive offence under s 97(1) of the Crimes Act 1900.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 114(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Hayek [2010] NSWCCA 139
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149
- R v Sok [2000] NSWCCA 121
- Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218