11 I would make the following remarks as to each of those grounds of appeal.
12 General Deterrence
The gist of the applicant's first ground of appeal is that the trial judge fell into appellable error in placing too much weight on the need for general deterrence in relation to the applicant.
13 I find, however, that this ground of appeal misstates what the trial judge in fact said as to deterrence. At page 3 of his remarks on sentence, Viney QC DCJ stated:
"The situation these days, with armed robberies, is quite appalling in this State. They are committed with such regularity that the courts and the community, through their Parliamentary representatives, have, from time to time, expressed concern that not enough is being done by the courts to adequately punish these sorts of offences. It goes without saying that the victims are put in peril, in fear, and go through traumatic experiences at the hands of bandits who come into premises, such as in this case, late at night, armed with dangerous weapons, and to threaten and, at times, inflict harm on these people, take the money and the personal possessions of the victims, and put them in considerable fear and concern. No doubt, in many case, that fear and concern will last for a long time.
It seems to me, whatever sympathy one might have for Mr Itamua, the balance of consideration is that there has to be adequate punishment, for one reason to reflect the community's attitude to this sort of offence, and, secondly, of course, to act as a deterrent to Mr Itamua, and equally to act as a deterrent to other people who might think that they commit these sorts of offences, and not receive the full weight of punishment that the law requires".
14 As indicated in Broxam (Unreported, NSWCCA, 3 April 1980, Slattery CJ at CL, Reynolds and Carruthers JJ), there were some thirty or so victims of the armed robbery. These offences were obviously part of a larger overall planned series of offences. There is no question that there is a need to deter this type of offence: see Bavadra [2000] NSWCCA 292.
15 The decision in R v Henry & Ors (1999) 46 NSWLR 436, dealing with less serious offences, indicated a clear need for deterrent penalties. Clearly, His Honour intended the penalty imposed in respect of charge fourteen to reflect the totality of the offences involved, as well as in terms of overall criminality and deterrence.
16 I do not consider that this ground of appeal is made out.
17 Plea at Earliest Opportunity
The second ground of appeal is that His Honour arguably placed insufficient weight on the applicant's plea at the earliest opportunity. This matter was recognised by His Honour, but there is a limit to the weight which can be given in relation to the seriousness of the offence. The last offence was in circumstances where it was difficult for the applicant not to have been convicted.
18 It must be remembered that the penalty imposed, although reflecting the totality of all the offences, was in respect of the penalty which carried a twenty-five year maximum. His Honour was obliged to reflect carefully on the premeditation and planning, the use of guns, in particular that being loaded when the applicant was arrested. Added to that was the fact that the offences were carried out in company. Corporeal violence was inflicted on more than one victim, and the seriousness of the offence limited the extent to which the applicant's early plea could be given weight.
19 I do not consider that this ground of appeal is made out.
20 Subjective Features
The applicant further submitted that His Honour placed insufficient weight on the applicant's subjective features in assessing sentence.
21 It is clear from the application of s5(2) of the Sentencing Act 1989, that His Honour was conscious of the excellent prospects of rehabilitation and the youth of the applicant, and in setting the sentence, took these matters into account.
22 Remorse would have been better shown by a greater level of co-operation. It is clear that the applicant was selective in the information which he gave to the police, and refused to provide information clearly within his knowledge which may have considerably assisted other convictions or arrests of co-offenders.
23 I do not consider that this ground of appeal is made out.
24 Applicant's Assistance
The next ground of appeal was that His Honour placed insufficient weight on the applicant's assistance. At several points during the record of interview, the applicant failed to assist in the identification of co-offenders, as I have referred to in the previous ground. It is clear also that the applicant, in respect of at least one offence, did not disclose his full contribution, nor did he assist in the location of the weapons. On one occasion, the applicant also declined to answer questions. At page 2 of his remarks on sentence, His Honour commented that the applicant was "co-operative with the police in disclosing the part he played and, on some occasions, naming some of the others involved, although he declined to name others".
25 His Honour further commented that none of the main players in the offences were identified in what was a substantial scheme involving several other persons. There is limited assistance which could have been given in the light of the limited assistance provided by the applicant. This would have obliged His Honour to place as much weight as a full disclosure would have entitled the applicant. It is for this reason that each of the grounds of appeal, in my view, fail.
26 The sentence was high when examined as against the Judicial Commission's statistics, but there is little information to compare the nature of these offences in these proceedings, and it is unlikely that the statistics reflect such a consistent pattern of serious criminality.
27 I would not grant leave to the applicant to appeal on this ground.
28 Overall Criminality as to Count 14
I have read the remarks of Smart AJ in paragraphs 10 to the end of his judgment, with which remarks I agree, except for the matter set out below. I also agree with the proposed orders.
29 I consider that there is a degree of artificiality in proposing to accumulate the new sentence on charge 14 on an existing three year fixed sentence on one of the other charges. I consider however, that there is, in any assessment of totality, a degree of artificiality, where a judge has to apply the totality principle where there are existing sentences, and a new sentence has to be fixed to reflect the principle of totality, taking existing sentences into account. I therefore concur in the proposed sentencing.
30 The matter in respect of which I do not agree with Smart AJ, relates to His Honour's remarks in paragraph 15 in relation to Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen (1998) 194 CLR 610 at 623-4. Mill and Pearce were decided before it was possible both to pass a sentence that was part concurrent and part cumulative. This latter course is demonstrated in the decision of this Court in R v Bavadra [2000] NSWCCA 292.
31 The use of partial accumulation and partial concurrence is now a preferred course. But in my view, the principle established in Pearce related to transparency and the desirability in fixing terms in respect of each offence. Pearce specifically referred to the principle of totality as it then existed, but did not purport to change that principle. It is, in my view, still open to a sentencing judge, within the proper sentencing range, to enlarge a sentence to reflect the totality of criminality in assessing a period of criminality over a number of offences. This is similar, although not precisely the same, to the exercise which a sentencing officer carries out when taking into account the offences on a Form 1 (see R v Bavadra [2000] NSWCCA 292) to enlarge a sentence.
32 As I have indicated, I otherwise agree with the remarks of His Honour and the proposed orders.
33 SMART AJ: Donny Itamua seeks leave to appeal against the severity of a sentence of the District Court (Judge Viney) comprising a minimum term of twelve years imprisonment and an additional term of six years imprisonment imposed on Count 14. This was one of forty two offences of robbery while armed with a dangerous weapon which the applicant admitted that he committed between 8 December 1997 and 5 April 1998. There was a further admitted offence of assault with intent to rob whilst armed with a dangerous weapon. On all counts except count 14 the applicant was sentenced to concurrent fixed terms of three years to commence on 5 April 1998, the date of commencement of the sentence on count 14. On that count the judge took into account the further offence of possessing a loaded firearm in a public place.
34 At the hearing before this Court there was a dispute as to the subject matter of Count 14. However, this is made clear by the judge's endorsement on the Committal for Sentence:
"Convicted on all counts
Charge H478669/15 (robbery whilst armed with dangerous weapon at Auburn on 14.1.98) sentenced to a minimum term of 12 years penal servitude to commence 5.4.98 and expire 4.4.2010 together with an additional term of 6 years to commence 5.4.2010 and expire 4.4.2016…"