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Court of Criminal Appeal 20 March 2019

Pantelakis v R

[2019] NSWCCA 78

Assault & violenceTheft & propertyPublic order & justice offences
CRIME APPEAL AGAINST SENTENCE

Citation: Pantelakis v R [2019] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 20 March 2019
Judges: Bathurst CJ, Hoeben CJ at CL, Price J

Background

The appellant, a 42-year-old man with a significant criminal history and a diagnosed mental illness, pleaded guilty in the District Court to aggravated assault with intent to rob with wounding, contrary to s 96 of the Crimes Act 1900 (NSW). The offence involved following a stranger off a bus in Condell Park, striking him from behind, demanding his phone and wallet, and punching him in the face, causing a split lip requiring multiple stitches. A Form 1 offence of driving a conveyance without consent was also taken into account on sentence.

Three related matters were dealt with on a s 166 Criminal Procedure Act 1986 certificate: assaulting a police officer in the execution of duty, possession of a knife in a public place, and driving whilst disqualified. These arose from the same day's events, including the appellant stealing a vehicle before his arrest and pushing a detective at Bankstown Police Station.

The sentencing judge imposed an aggregate term of 4 years 4 months with a non-parole period of 2 years 10 months, after applying a 25% discount for the guilty pleas. The appellant sought leave to appeal, arguing the sentence was flawed in its methodology and manifestly excessive.

  • Whether the sentencing judge failed to assess the objective seriousness of the offences dealt with under s 166 of the Criminal Procedure Act 1986
  • Whether the judge set erroneously excessive starting points for each of those offences
  • Whether the judge failed to indicate how the Form 1 offence was taken into account
  • Whether the aggregate sentence was manifestly excessive in all the circumstances

Decision

On the s 166 certificate offences, the Court found no error in the judge's approach. The judge had identified starting points for each offence, applied the appropriate guilty plea discount, and indicated the resulting individual sentences before constructing an aggregate. The Court was satisfied that her Honour engaged meaningfully with the criminality of each offence, notwithstanding that the sentencing remarks were delivered ex tempore.

On the Form 1 ground, the Court accepted that the judge did not separately articulate the weight given to the drive-without-consent offence. However, the Court was not persuaded that this omission constituted appellate error in the circumstances. The Form 1 offence was clearly before the court and the aggregate methodology allowed for its absorption into the overall sentence.

Regarding the appellant's mental health, the Court found the judge had dealt with it consistently with established principle. The psychologist's report documented the appellant's schizophrenia diagnosis, his non-compliance with antipsychotic medication in the lead-up to the offences, and his acute psychosis after arrest. The judge took this into account without reducing the moral culpability of the offending below a level warranted by the objective gravity of the principal offence.

On manifest excess, the Court noted that the judge had plainly applied totality principles, increasing the sentence for the principal offence by only one month to reflect the s 166 matters. The Court found the appellant had not established that the aggregate sentence was unreasonable or plainly unjust. All grounds of appeal failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a sentencing judge identifies starting points, applies discounts, and arrives at individual sentences before aggregating, the s 166 methodology is not flawed simply because reasons are delivered ex tempore.
  • A failure to expressly articulate the weight given to a Form 1 offence does not automatically constitute appellate error, particularly where the Form 1 matter is clearly before the sentencing court and absorbed within an aggregate sentence.
  • Questions of how much weight to give particular subjective circumstances, including mental illness and medication non-compliance, are primarily for the sentencing judge, and appellate intervention on weight grounds is narrowly confined.
  • Totality and accumulation decisions are discretionary; a modest one-month increase on the principal offence to account for additional summary matters demonstrated, to the Court's satisfaction, that the judge had turned her mind to the totality principle.
  • A psychiatric diagnosis and acute psychosis at the time of offending are relevant mitigating factors, but do not necessarily compel a finding of manifest excess where the objective gravity of the principal offence is high.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 96, 154A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 54
- Summary Offences Act 1988 (NSW), s 11C

Cases
- Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Sydney [2004] NSWCCA 63
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- Vaiusu v R [2017] NSWCCA 71
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550