REGINA v. ATONIO [1999] NSWCCA 266

New South Wales Court of Criminal Appeal CITATION : REGINA v. ATONIO [1999] NSWCCA 266 FILE NUMBER(S) : CCA 60590 of 1998 HEARING DATE(S) : Wednesday 18 August 1999 JUDGMENT DATE : 18 August 1999

PARTIES : REGINA v. ATONIO, Samuela JUDGMENT OF : Wood CJ at CL at 22; Greg James J at 2

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

-8- IN THE COURT OF CRIMINAL APPEAL

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

REGINA v. SAMUELA ATONIO

JUDGMENT

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."