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Court of Criminal Appeal 4 December 2000

R v Itamua

[2000] NSWCCA 502

Assault & violenceFirearms & weapons
CRIMINAL LAW MULTIPLE OFFENCES APPLICATION OF PEARCE V THE QUEEN

Citation: R v Itamua [2000] NSWCCA 502
Court: NSW Court of Criminal Appeal
Date: 4 December 2000
Judge(s): Sheller JA, Dowd J, Smart AJ

Background

The appellant pleaded guilty in the Penrith District Court to 42 counts of armed robbery and one count of assault with intent to rob while armed with a dangerous weapon, all contrary to the Crimes Act 1900. The offences were committed over roughly five months between December 1997 and April 1998 and involved the use of firearms across numerous commercial premises in western Sydney. A Form 1 offence of possessing a loaded firearm in a public place was also taken into account.

The sentencing judge imposed a minimum term of 12 years penal servitude on count 14 (the principal count), with a six-year additional term, all concurrent with fixed three-year terms on each of the remaining counts. The appellant sought leave to appeal on the ground that the sentence on count 14 was manifestly excessive, citing errors in the weight given to general deterrence, the early guilty plea, subjective factors, and cooperation with police.

  • Whether the sentencing judge erred in weighing general deterrence, the early guilty plea, the appellant's subjective circumstances, and his assistance to police
  • Whether the sentence on count 14 complied with the principles in Pearce v The Queen, which require a court to impose a correct sentence on each individual count rather than relying on one count to absorb the overall criminality
  • Whether, having found error in the sentence on count 14, the Court of Criminal Appeal could also review and correct the sentences on the other counts
  • Whether the corrected sentence on count 14 should run concurrently or cumulatively with the fixed three-year terms on the other counts

Decision

The Court accepted that the sentence on count 14 contained error. Applying Pearce v The Queen, the High Court had made clear that a sentencing court must impose a correct sentence for each offence and cannot simply use one count as a vehicle to reflect total criminality while leaving other sentences artificially low. The three-year fixed terms imposed on the remaining 42 counts were found to be grossly inadequate for offences carrying a maximum of 25 years.

However, the Court identified a significant gap in the legislation. Its appellate jurisdiction was engaged only because the Crown had appealed the sentence on count 14. Without a corresponding Crown appeal against the inadequate sentences on the other counts, the Court had no power to increase those sentences, even though they were plainly insufficient. Smart AJ noted that, left uncorrected, the three-year fixed terms would remain on the record regardless of how the sentence on count 14 was restructured.

The Court reduced the sentence on count 14 from 18 years (minimum 12) to 14 years with a non-parole period of eight years. To ensure the total sentence reflected the true criminality of the offending, the Court made the 14-year term cumulative on the fixed three-year terms rather than concurrent. This meant the appellant would begin serving the count 14 sentence only after the three-year terms expired.

The Court expressed concern about the structural problem this case exposed. Smart AJ observed that, ideally, substantially longer sentences should have been imposed across many of the other counts and structured as partly concurrent and partly cumulative. Because the Court lacked the power to act on the other sentences without a Crown appeal, it could not achieve that outcome. The Court called explicitly for legislative reform to allow review of all sentences when error is identified in the principal sentence and other sentences are manifestly inadequate, and it signalled that the Crown should appeal inadequate sentences in cases of this kind.

Orders Made

  • Leave to appeal against sentence on count 14 granted; appeal allowed; sentence on count 14 quashed
  • In place of the sentence on count 14, the appellant is sentenced to 14 years imprisonment, cumulative on the fixed three-year terms imposed on the other counts, commencing 5 April 2001 with a non-parole period of eight years from that date

Key Takeaways

  • The Court of Criminal Appeal confirmed the Pearce v The Queen principle: a sentencing court must impose a correct, proportionate sentence on each individual offence and cannot treat one count as a vessel to absorb all criminality while leaving other sentences at token levels.
  • A legislative gap existed at the time of this decision: the Court of Criminal Appeal's power to review sentences was limited to those counts actually under appeal, meaning grossly inadequate sentences on other counts could not be corrected without a separate Crown appeal in respect of each.
  • Where correcting an error in the principal sentence would otherwise leave the total sentence inadequate, the court may make the restructured sentence cumulative rather than concurrent with other terms to better reflect overall criminality.
  • The Court called for legislative reform to enable appellate review of all sentences in a matter where error is found in the principal sentence and other sentences are manifestly inadequate pending such reform, the Court indicated the Crown should lodge appeals against inadequate sentences across all relevant counts.
  • In dismissing most of the grounds raised by the appellant, the Court found that the sentencing judge had not erred in emphasising general deterrence for a sustained, planned series of armed robberies involving firearms and numerous victims.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 93G(1)(a)(i), 97(2), 97(2)(ii)
- Crimes Act 1958 (Vic)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59
- R v Fraser [2000] NSWCCA 97
- McL v The Queen (2000) 74 ALJR 1319
- R v Henry & Ors (1999) 46 NSWLR 436
- R v Bavadra [2000] NSWCCA 292