REGINA v. ATONIO [1999] NSWCCA 266

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0216 LOWER COURT JUDICIAL OFFICER : Goldring, DCJ.

COUNSEL : Crown: L.M.B. Lamprati App: J. Stratton SOLICITORS : Crown: S.E. O'Connor App: T.A. Murphy CATCHWORDS : Sentence - parity - sentence of co-accused on mistaken appreciation of number of offences of applicant - other circumstances similar - legitimate sense of grievance - armed robbery sentences on their face inadequate - necessity for higher sentences. ACTS CITED : Crimes Act 1900 Stein [1999] NSWCCA 250; Hodges (1997) 95 A. Crim R. 85; Murray (CCA, unreported 11 September 1986); Crotty (1993) 1 NSWLR 71; CASES CITED: Vu (CCa, unreported 11 September 1993); Henry & Ors [1999] NSWCCA 111; Ellis (1993) 68 A. Crim R. 449; Hayes (1984) 1 NSWLR 740; Flack (CCA, unreported 12 December 1989); Smith (CCA, unreported 12 December 1989) DECISION : Appeal allowed

No. 60590 of 1998 CORAM: WOOD, CJ. at CL. GREG JAMES, J. WEDNESDAY 18 AUGUST 1999

1 WOOD,CJ. at CL: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: Application for leave to appeal is brought from the sentence imposed by His Honour Judge Goldring in the District Court on the applicant for the offence of armed robbery, contrary to s.97(2) of the Crimes Act. 3 His Honour sentenced the applicant to penal servitude for five years to commence on 9 April 1998. That sentence comprised a minimum term of three years and an additional term of two years. 4 The maximum sentence for such a crime is 25 years penal servitude. In the criminal calendar is one of the most serious of crimes. 5 When sentencing his Honour said:- "The circumstances were that prisoner, with three other people, went early in the morning of 5 March 1998 to the Berala Hotel, which is apparently a 24 hour hotel. They were wearing balaclava helmets and they had with them a .22 pistol and a baseball bat, and some plastic material which was in fact used to tie people up. The evidence before me suggests that they had planned to rob a hotel and at some stage they changed the hotel they planned to rob and they ended up at the Berala Hotel. There they threatened and overpowered two hotel staff and a security guard. They tied two of them and made them move to the toilet area. The third person, who was the manager of the hotel, was forced to open the safe and they removed a large amount of money, over $21,000 from the safe. They also robbed some sums of money from the persons of the people that they had tied up. This was a very serious offence. The fact that it happened early in the morning and that members of the public were not directly involved is a matter of luck rather than anything else. It is very possible that members of the public could have been there - as it happened there were only members of the hotel staff and the security staff and their evidence is that they were terrified. The first impression one gets of this offence is that it is extremely serious and warrants a fairly heavy penalty. As defined in the Act, this is an aggravated offence because a pistol was there. Mr. Atonio himself did not have the pistol, but he was part of the group that committed this offence and he admitted to holding a baseball bat, which is itself a very serious offence. The robbery was planned. It was thought through. It was done consciously."

6 His Honour found a number of circumstances favourably to the applicant: his age, he was 18 at the time; no previous record; a supportive family and that the crime was committed to provide financial assistance to that family because of its straightened circumstances. 7 His Honour found that the prisoner voluntarily surrendered, frankly confessed and co-operated, was contrite and had good prospects for rehabilitation. His Honour found special circumstances. 8 Except for one matter the sentence is entirely unchallengeable, indeed, highly favourable to the applicant. It is, however, challenged, as I understand the submission, not on its overall length but particularly as to the proportion of its components, in the light of the sentence passed on the applicant's younger brother for the three offences of armed robbery to which he pleaded guilty before His Honour Judge Taylor and in the light of a factual error which, on a parity basis, affected not only that sentence but also other sentences passed on other prisoners who had either participated in the robbery for which the applicant was sentenced or the robberies for which his brother was sentenced. 9 The applicant's brother, Tovio, in addition to his involvement in the robbery of the Berala Hotel was involved in the robbery of the Royal Hotel at Granville together with a co-offender Donny Itamua. That robbery was performed by Itamua using a pistol to hold up the staff and a security guard and the staff were held at gunpoint whilst the younger offender, Tovio Atonio, gathered the takings off the table. 10 The third offence for which Tovio Atonio was sentenced was the robbery of the Belfield RSL which robbery was also performed in company with Donny Itamua who on this occasion had a sawn off shotgun. Again the employees of that club were held at gunpoint and the young person assisted in the gathering of the proceeds. 11 Taylor, DCJ. noted that the involvement of the young brother in these offences came to light after he had been confronted by his father in consequence of something said by his sister. The father then called the police. The young person spoke to the police and subsequently was charged. It was following his charge that the present applicant, and indeed a co-offender, voluntarily surrendered themselves to the police and confessed to the robbery for which he was sentenced. 12 Tovio Atonio for the offences to which he pleaded guilty was sentenced to four years penal servitude comprising a minimum term of two years and an additional term of two years with supervision. The custodial portion was directed to be served in a detention centre. 13 Tovio was less than two years younger than the applicant. The applicant was sentenced before his brother and Taylor, DCJ. when he came to sentence Tovio had regard to the sentence passed on the applicant for parity purposes. Unfortunately that sentence was erroneously described as in respect of three, not one, armed robberies. A similar error was made by her Honour Judge Backhouse when she came to sentence Toma Davis Moosman, a co-offender in a robbery at the Crescent Hotel, Fairfield, with one Peleti Creighton who had been sentenced for three armed robberies of hotels by Her Honour Judge Karpin to eight years penal servitude, comprising a minimum term of two years and six months, and an additional term of five years and six months. We have been informed from the bar table that the associate, Donny Itamua, to whom I have already referred, was sentenced for 43 armed robberies by His Honour Judge Viney to a sentence involving a minimum term of 12 years. 14 On a comparison of the circumstances of the applicant with his brother, other than the slight age difference and the number of offences for which they came forward for sentence, there was little to choose between them. In those circumstances, notwithstanding my view that the sentence that had been passed upon the applicant was otherwise unchallengeable, if not entirely lenient, I have concluded that the mistake was such as to engender a legitimate sense of grievance in the applicant as to the sentences in their upshot and effect. 15 Earlier this week in Regina v. Stein [1999] NSWCCA 250, this court upheld an appeal against sentence on a similar basis in reliance on this court's decision in Regina v. Hodges (1997) 95 A. Crim. R. 85 and with that in mind in my view leave should be granted and this appeal to the extent submitted, upheld. 16 I would receive the evidence tendered on appeal showing the good progress of the applicant in gaol and in the light of that evidence would restructure the sentence to reflect parity with the general treatment of the brother by dividing the total sentence of five years similarly into a minimum term of two and a half years and an additional term of two and a half years. 17 I cannot pass from these matters when examining the structure of the sentence imposed by Karpin, DCJ. and the general sentences imposed, putting aside the sentence imposed by Viney, DCJ., without remarking on the remarkable leniency that appears to have been extended, notwithstanding that the crimes are so serious and that this court has again and again emphasised the objective gravity of offences of armed robbery particularly where they are offences of aggravated armed robbery under s.97(2). 18 Offences of robbery whether armed or unarmed, should be regarded in virtually all circumstances as of such gravity, as must normally require a custodial sentence. So said the court in Regina v. Murray (unreported, 11 September 1986). Those views have been applied again and again including in Regina v. Crotty (1993) 1 NSWLR 71 where the various factors in sentencing for armed robbery are reviewed. 19 The court has said, on many occasion that the range of sentences imposed for serious armed robbery offences should be much higher than those in fact imposed by sentencing judges. 20 Remarks to that effect were made in Regina v. Vu (CCA, unreported 11 September 1993). The court continued that:- "The time has more than come for far more deterrent sentences to be imposed for those offences of serious armed robbery."

21 Armed robberies are offences of the gravest violence occasioning to the victims, not only the loss of their property but frequently permanent psychological damage of a serious nature. It has recently been pointed out by the court in Regina v. Henry & Ors [1999] NSWCCA 111, that such offences require condign punishment. these sentences, albeit we have not had their merits debated in front of us in these proceedings, do not seem to reflect those principles which would require the objective gravity of the crimes to be assessed in such a way as to produce, one would expect, sentences of much greater length. Nonetheless, there are no Crown appeals and there is in the present sentence a mistake which affects deeply the nature of the sentence as it would be experienced by the applicant. It is only because of that mistake that I would be minded to take the course which I have proposed. 22 WOOD, CJ. at CL: I agree, in the exceptional circumstances of this case, with the course proposed by Justice Greg James and with the reasons therefor. 23 The relevant sentencing order for present purposes was that in respect of the applicant's younger brother, Tovio Atonio, who was a co-offender in relation to the Berala armed robbery, and who was also standing for sentence in relation to two further charges of armed robbery. For the reasons explained in Regina v. Ellis (1993) 68 A. Crim. R. 449, that was the sentence in respect of which the parity argument was addressed. 24 Our attention was however also drawn to the sentences imposed upon several other young persons who were associates of the Atonio brothers, and who had been involved in what appears to have been a very serious outbreak of armed robberies directed towards licensed premises during the first quarter of 1998. One such offender had been involved in forty three such offences and another offender had been involved in nine. 25 They were all cases, on the face of the material before us, involving the use of loaded pistols, shortened rifles or shortened shotguns, where there was a considerable degree of planning as well as some force applied in their execution. They cannot be dismissed as spur of the moment or trivial offences, committed by individual offenders involving small amounts of money. 26 All the sentences imposed, save in the case of the offender who had 43 such matters to his name, appear on their face, to have been unduly lenient. So lenient are they that concern must be entertained that the learned sentencing judges had overlooked the observations passed by this court as long ago as 1984 in Regina v. Hayes (1984) 1 NSWLR 740 at 743 and repeated in Ellis (supra at 462), where Hunt, CJ. at CL. observed that reference to the judgments in Regina v. Flack and Regina v. Smith, both delivered on 12 December 1989, demonstrated that a higher range of sentence for armed robbery was required, and gave a clear indication that sentences should be increased for that crime. 27 In Regina v. Vu (CCA, unreported 11 November 1993), the following observation was made:- "The court has said on many occasions that the range of sentences imposed for serious armed robbery offences should be much higher than those in fact imposed by sentencing judges. There has been little movement upwards and the time has more than come for far more deterrent sentences to be imposed for those offences of serious armed robbery."

28 It is important that sentencing judges pay attention to these decisions, as well as to the recent guideline judgment of this court in Regina v. Henry & Ors [1999] NSWCCA 111, when sentencing those who commit serious armed robberies. 29 It is also of concern that each of the cases brought to our attention, none of which attracted a Crown appeal, was dealt with by a different judge even though they involved one or more common offender. This inevitably made judgment as to parity between co-offenders exceedingly difficult, a matter that was compounded by the circumstance that errors were made, on more than one occasion, as happened in the case of the applicant's younger brother, as to the number of offences committed by co-offenders who had been dealt with by a different judge. It is that error which primarily brings me to the conclusion that the court should intervene on this occasion. 30 Wherever possible, it would seem desirable that steps be taken to ensure a common listing of co-offenders, particularly where it is known in advance that they intend to offer or to adhere to a plea of guilty. If that is not possible, then considerable care is needed on the part of the Crown to ensure that correct information is placed before the sentencing judge, and that there is no misunderstanding of the objective and subjective circumstances applicable to the co offenders against whose sentence parity is to be achieved. 31 As I agree with the course proposed, the orders of the court will be as Justice Greg James has proposed. 32 GREG JAMES, J: The sentence will be a minimum term of two and a half years to commence on 9 April 1998 and to expire on 8 October 2000. The additional term is to commence on 9 October 2000 and to expire on 8 April 2003.

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