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[2000] NSWCCA 502
Court of Criminal Appeal (NSW)
2000-10-24
Sheller JA, Dowd J, Smart AJ
Original judgment source is linked above.
CITATION : R v Itamua [2000] NSWCCA 502 FILE NUMBER(S) : CCA 60104/99 HEARING DATE(S) : 24 October 2000 JUDGMENT DATE : 4 December 2000
PARTIES : Regina v Donny Itamua JUDGMENT OF : Sheller JA at 1; Dowd J at 2; Smart AJ at 33
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1333 LOWER COURT JUDICIAL Viney DCJ OFFICER :
COUNSEL : CB Simpson (Appellant) P Hock (Respondent) SOLICITORS : John B Hajje & Associates (Appellant) SE O'Connor (Respondent) CATCHWORDS : Criminal Law - multiple offences - imposition of correct sentences for each offence - application of Pearce v The Queen - need for legislative reform to enable Court to review all sentences when error in respect of principal sentence and other sentences manifestly inadequate - need for Crown to lodge appeals as to inadequate sentences - change of practice required pending legislative amendment Criminal Appeal Act 1912 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1958 (Vic) Pearce v The Queen (1998) CLR 610 CASES CITED: Mill v The Queen (1988) 166 CLR 59 R v Fraser [2000] NSWCCA 97 McL v The Queen (2000) 74 ALJR 1319 DECISION : Leave to appeal against sentence on count 14 granted; appeal allowed; sentence quashed. In lieu of the sentence imposed on count 14 the prisoner Donny Itamua is sentenced to 14 years imprisonment to be cumulative on the fixed three year terms of imprisonment imposed by Judge Viney on the other counts; such 14 year sentence to start on 5 April 2001 with a non-parole period of eight years commencing on that day.
1 SHELLER JA: I agree with Smart AJ. 2 DOWD J: The applicant, having pleaded guilty on 15 October 1998, was sentenced on 5 March 1999 by Viney QC DCJ, in the Penrith District Court. 3 The applicant was charged and pleaded guilty to forty-two charges of robbery armed with a dangerous weapon, contrary to s97(2)(ii) of the Crimes Act 1900 ('the Act'). This offence carries a maximum penalty of twenty-five years imprisonment. The applicant was also charged with one count of assault with intent to rob whilst armed with a dangerous weapon, contrary to s97(2) of the Act, which similarly carries a maximum of twenty-five years imprisonment, and had taken into account a Form 1 offence of possessing a loaded firearm in a public place contrary to s93G(1)(a)(i) of the Act, which carries a maximum penalty of ten years imprisonment. 4 The offences occurred over a relatively short period of time, from early December 1997 to April of 1998. The applicant was sentenced on the fourteenth charge, taking into account the offence under Form 1, to a minimum term of twelve years penal servitude commencing on 5 April 1998, being the date that he went into custody, and to expire on 4 April 2010. He was sentenced to an additional term of six years, to commence on 5 April 2010 and to expire on 4 April 2016. 5 On each of the remaining charges, the applicant was sentenced to a fixed term of three years penal servitude, to commence on 5 April 1998 and to expire on 4 April 2001, the latter sentences to be served concurrently with the offence for which he received twelve years. 6 I have read the judgment in draft form of Smart AJ, and would agree with the summary of facts and the reasons outlined in his Honour's judgment, except for the issue of totality as set out below. I would only add a few additional facts. 7 In respect of paragraph 8(f), concerning the Royal Hotel, Granville, I would add that on 6 April 1998, a co-accused, Tovio Antonio, surrendered himself to Fairfield Police Station, where he fully admitted to his involvement in the offence. Antonio implicated the applicant as being the person in the hotel with him, and in carrying the firearm. The description that was given by witnesses is consistent with that of the applicant, and the additional inquiries confirmed an association between the applicant and Crichton. 8 In relation to paragraph 8(h), regarding the Belfield RSL Club, I could only add the following. On 6 April 1998, a co-accused, Tovio Antonio, surrendered to police, and fully admitted his involvement in the offence. He implicated the applicant as being involved, and stated that the applicant was armed with a sawn off rifle. Additional inquiries confirmed the association of the applicant and Antonio on the morning of the offence. The applicant however, refused to comment on the offence. 9 Finally, in relation to paragraph 8(i) concerning the Fairfield Hotel, I would note additionally that the applicant later admitted to being the person at the door, and admitted that he was armed with a pistol. 10 Before turning to the matters concerning the application of the principles of Pearce v The Queen (1998) 194 CLR 610, as set out from paragraph 10 onwards of His Honour's judgment, I wish to set out and deal with the applicant's grounds of appeal. The applicant submits that the sentence imposed by the Sentencing Judge was manifestly excessive, and that the learned Judge fell into error by:
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…"
Charge H 478669/15 reads: "That Donny Itamua on the 14th day of January 1998 at Auburn … being then armed with a dangerous weapon, to wit, a long barrelled handgun, a semi automatic pistol and a baseball bat did rob M- M- of certain property, to wit a man's wallet, $300 in cash, one 18ct gold chain …the property of the said M- M-." 35 This corresponds with count 14 on the Schedule of Offences handed to the judge at the sentence hearing. The judge said: "I propose to impose a sentence in respect of matter number 14 which, on the face of it, seems to be one of the most serious of the offences, individually, and reflect in that sentence the total criminality. Although the offences occurred over a period of some months, it could be said they were one episode of criminality … I do not think it is appropriate, given the length of sentence I propose to impose, to have cumulative sentences. On the other matters there will be fixed terms." 36 It will be necessary to look at count 14 and the overall position.
Count 14 37 About 1.50 am on 14 January 1998 up to five offenders entered the Auburn Village Tavern armed with a long barrelled handgun, a semi automatic pistol, a baseball bat and a club lock. All five men wore balaclavas or other disguises. One was a big man. He announced that this was a robbery, that they were serious and would shoot. Three of the men ordered everyone to the backroom. One man was hit in the ribs with the baseball bat and another on the face. Three of the men tied the hands of the patrons behind their backs. MM was tied around his hands and ankles and hit on the right side of the head with the bat. The barman was grabbed by the hair. The manager was taken away. Three of the men went around each patron on the floor taking their wallets and jewellery. One took MM's wallet and tore his gold chain from his right wrist. A few minutes later the manager was brought back and sank to the floor. The man with the baseball bat said to the manager that he had not opened the safe downstairs but the manager asserted that he had. The man with the baseball bat threatened to blow the manager's head off. The manager said that they should take him downstairs. He got up and went with that man and later returned. One of the men hit MM with a club-lock. MM was aged 17. 38 As the robbers left one of them stated "Don't go near the doors for the next fifteen minutes or we will blow your heads off. Don't try to be a hero." 39 In his recorded interview of 5 April 1998 the appellant said that he was involved as a driver, driving the men to the Tavern. He did not go inside the Tavern. He appeared to be aware that wallets were taken from patrons at the Tavern but unaware that there had been any physical violence. He knew that when he drove the men to the Tavern they were going to commit an armed robbery and that when he went back to the house they would have money from the armed robbery. When they returned to David's house after the armed robbery they gave him money, being part of the moneys taken during that armed robbery. 40 In his further recorded interview of 7 April 1998 the appellant confirmed that there were at least five people involved in the armed robbery of the Auburn Village Tavern. The appellant said that he was involved in driving some of the men to the Tavern. He had become aware about an hour prior to that the men were going to commit an armed robbery. He had earlier driven the men to David Lipani's house, the robbery headquarters which were a short distance from the Tavern. After dropping the men off at the Tavern he went back to that house.
(a) Auburn Village Tavern - Seven other people were the subjects of robbery whilst armed with a dangerous weapon and six were subjected to broadly similar treatment. One of those people, namely, the Night Manager of the Tavern, was subjected to even worse treatment. He was coerced by the armed robbers into opening up various places where money was kept and helping them to take the Tavern's money. He was subjected to dire threats including death threats if he failed to co-operate. About $20,000 of the Tavern's money was stolen. He also had his wallet, $175 cash, personal papers and cards taken.
Four males forced their way into the hotel about midnight. Weapons included a handgun and a baseball bat. The victims were bound with tape and the keys taken from the manager. The offenders took $20,000 of the hotel's money. Five individuals in the hotel were also the victims of an armed robbery. In his recorded interview the appellant admitted being involved in the planning and preparation of the offences. He was aware that an armed robbery was to be committed by his associates and took them to the vicinity of the hotel for that purpose. He drove his brother's car and waited in the car during the armed robberies. He drove the co-accused from the hotel knowing they had committed an armed robbery and later that morning received part of the proceeds from the offences.
(c) Lucky L'ils Hotel, Parramatta - 19 January 1998
The appellant who was in possession of a pistol attended the hotel with an unknown co-accused. The appellant was not wearing a balaclava. Four staff within the hotel were threatened and three of these staff members were tied up with plastic ties. The Assistant Manager was forced to open two safes. About $20,500 in cash belonging to the hotel was taken. Four individuals were also the victims of an armed robbery.
About 12.10 pm the appellant drove his brother's vehicle with two accomplices to the vicinity of the Rosehill Hotel. The co-accused entered the hotel both armed with handguns and threatened the staff and patrons. Money was taken from the cash register. The Manager was forced to open a safe and cash of $11,959 was stolen. Patrons were forced to lie on the ground. The accomplices left the hotel and returned to the vehicle driven by the appellant which left the scene. The appellant admitted being involved in the planning and preparation of the offence; he was aware that an armed robbery was to be committed by his associates. He drove the co-accused from the hotel knowing that they had committed an armed robbery and received part of the proceeds from the offence.
Shortly after midnight two co-offenders entered the Club with their faces covered, one of them being armed with a handgun. Staff and patrons inside the Club were forced to lie on the floor in the Manager's office. The Manager was forced to open the safe and money was stolen. Cash drawers about the Club were also ransacked and money was stolen from these drawers. About $44,000 in cash of the Club was taken. Three individuals were also the victims of threats and armed robberies. The appellant drove his brother's vehicle to the vicinity of the offence and went inside the Club to confirm that there were not too many staff members thus making it a "low risk" job. After canvassing the Club the appellant returned to the car and informed the two co-offenders of his observations. The appellant waited in the car during the offences. He drove the co-offenders from the Club knowing that they had committed an armed robbery and later that morning received part of the proceeds from the offences.
The appellant and a co-offender, by arrangement with the hotel doorman, entered the hotel which was closed. One of the offenders was armed with a semi-automatic handgun. At the time staff were counting the takings; threats were made and eventually $6,000 was stolen from the hotel. One individual was also the victim of an armed robbery. The available evidence was that it was the appellant who was the offender who entered the hotel with a gun. While the appellant admitted that he was involved in the preparation and planning of the offence and sharing in the proceeds he denied that he entered the hotel with a gun. He refused to name the other offenders.
About 4.00 am three offenders entered the hotel wearing balaclavas and armed with a semi-automatic handgun and a black aluminium baseball bat. Three staff members were threatened, two of them being immediately forced to the floor and being tied with cable ties. The Manager was forced to open a safe from which $21,000 was stolen. He was also tied with cable ties. Two individuals were also victims of the armed robbery. The appellant admitted to being involved in the planning and preparation of the offences, being aware that an armed robbery was to be committed by his associates, taking them in a vehicle to the vicinity of the hotel for that purpose and driving them from the hotel knowing that they had committed an armed robbery. The appellant received part of the proceeds from the offence.
On 16 March 1998 the appellant and a co-offender gained access to the club, the appellant being armed with a sawn off rifle. Both offenders were wearing balaclavas. Staff and cleaners were threatened and forced on to the floor. The Administration Officer was forced to open the safe from which $16,000 was removed by the offenders. One of the staff members was also the victim of an armed robbery.
The appellant pleaded guilty to an assault with intent to rob whilst armed with a dangerous weapon. A co-offender had attended at the hotel and surveyed it. The hotel's security officer became suspicious and locked the doors of the Hotel. About 2.30 am the appellant wearing a balaclava and armed with a black handgun tried to force his way into the hotel through the doors. He pointed the handgun at the hotel security officer through a set of glass doors telling him that it was a holdup and for him to open the doors. The security officer refused and the appellant ran off.
About 1.40 am three offenders with their faces covered entered the hotel with one of them being armed with an automatic handgun. Staff and patrons inside the hotel were threatened and forced to lie on the floor. A security officer was forced to open a register in the poker machine change area and approximately $5,566 was removed by the armed offender. Four victims in the hotel were also the subject of armed robberies. The appellant admitted to being involved in the planning and preparation of the offence, driving his brother's vehicle and his associates to the vicinity of the hotel and being aware that an armed robbery was to be committed by them. He waited in the car during the offence and drove the co-accused from the hotel knowing that they had committed an armed robbery. Later he received part of the proceeds from the offences.
About 9.50 pm an offender entered the hotel carrying a silver pistol with a long barrel and a metal table leg. He wore a balaclava. He ordered the staff and patrons on to the floor and tied the four of them up. Another three masked male offenders entered the hotel. One of these offenders was armed with a double barrelled shotgun. The hotel Manager was forced to open the hotel's safe. An amount of $4744 was removed. The hotel Manager was again bound and forced to lie on the flor. The appellant was identified by fingerprints developed on the table leg used during the commission of the offence. The Manager, another hotel employee and two patrons were each the victim of an armed robbery. The property taken from the individuals consisted of cash and assorted jewellery to the value of $15,000.
(l) Warwick Farm (Sunnybrook Hotel ) - 12 March 1998
The appellant and three co-offenders entered the hotel about 1.35 am with the connivance of the security doorman. One co-offender who was armed with a black handgun threatened two victims. They were bound; one victim was made to open the hotel safe, whereupon $2,000 was removed. The appellant stated that he was the driver of his brother's vehicle during the armed robbery.
The charge is that being armed with dangerous weapon, the appellant attempted to rob persons unknown of certain property, to wit, certain property including cash monies the property of the Sandringham Hotel. The appellant was arrested about 12.20 am opposite the Sandringham Hotel where he was getting ready to rob the hotel. He was carrying a semi-automatic pistol. He was further charged with possessing a loaded firearm, which was loaded with ten rounds of ammunition, in a public place, namely, the footpath of King Street, Newtown. 41 Thus, it can be seen that the appellant attended at thirteen hotels or clubs. In addition to the robbery of these, some thirty one individuals were the victims of an armed robbery. In some instances the evidence establishes that the appellant engaged in the preparations for the offence, driving co-offenders to the scene of the robbery knowing that a robbery was to take place, waiting for them, driving them away knowing a robbery had been committed and participating in the proceeds of the offence. In other instances the appellant's involvement was even greater as he participated physically in the carrying out of the armed robberies in some of the hotels or clubs. The criminality revealed as to Count 14 was very high. It was also very high in other instances. 42 In Pearce v The Queen (1998) 194 CLR 610 at 623-4, McHugh, Hayne and Callinan JJ said: "To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences." 43 The course taken by the sentencing judge in the present case reflected the practice which existed in New South Wales prior to Pearce. Indeed, the Court of Criminal Appeal of this State had made it clear that on sentence appeals it was only concerned with the effective total of the sentences involved and not with the matter in which individual sentences were structured. That approach is no longer open. In Pearce at p 624 the High Court further said "The appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against 'a sentence', it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the court 'is of opinion that some other sentence … is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor'" 44 The importance of the principle of totality was emphasised by the High Court in Mill v The Queen (1988) 166 CLR 59 at 62-63. At p 63 the Court said as to totality:
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." 45 The approach taken in Pearce has special force where the major sentence has been imposed on one count and subsequently the conviction on that count has been quashed and either a verdict of acquittal entered or a new trial ordered. This brings into sharp focus the correctness of the sentences imposed on the other counts. 46 The problem faced by a sentencing judge becomes acute where there are a large number of offences being dealt with. In Fraser [2000] NSWCCA 97 at para 18 this Court held that where the offender has been sentenced for as many as twenty five offences the Court is not obliged to impose a series of separate sentences with separate commencement dates. The idea of imposing twenty five consecutive sentences each of a few months would be both impractical and verging on the absurd. The problems are usually best overcome by making the sentences concurrent or partially cumulative and partially concurrent or by making one group of sentences on a number of charges concurrent and another group of sentences on a number of other charges, those sentences being concurrent as between themselves, cumulative on the first group. This last mentioned course was permissible at the time the judge imposed his sentences.
47 It is unnecessary to deal with the other grounds of appeal against sentence as the Court has to re-sentence to conform with Pearce. 48 The concurrent sentences for a fixed term of three years are in almost all instances manifestly inadequate having regard to the gravity of the offences. On the other hand, a sentence of eighteen years with a non-parole period of twelve years for one count of robbery whilst armed with a dangerous weapon is, in the circumstances of this case, manifestly excessive, even allowing for the fact that it was a bad case. The judge in his reasons stated that he was reflecting the total criminality in the sentence he was imposing on Count 14. That is not an approach which Pearce and Mill permit. When the judge dealt with these sentences on 5 March 1999 he did not have the power to impose sentences that were partly concurrent and partly cumulative. That limitation has been overcome by s 55(2) of the Crimes (Sentencing Procedure) Act 1999 which commenced on 3 April 2000. 49 As earlier noted there has been no appeal by the appellant against the concurrent fixed term sentences of three years penal servitude. Nor has the Crown appealed against their inadequacy despite this being manifest. The question arises whether this Court if it considers that the judge has erred in his approach can alter the fixed term three year sentences on the ground that they were manifestly inadequate and that the overall sentence which remains after resentencing on Count No 14 does not adequately reflect the totality of the criminality. 50 In McL v The Queen (2000) 74 ALJR 1319 the High Court considered s 569(1) of the Crimes Act 1958 (Vic). Section 7(1) of the Criminal Appeal Act 1912 is to the same effect. That sub-section provides: "7(1) If it appears to the court that an appellant on an appeal under section 5(1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted." 51 McL was convicted on numerous counts of sexual offences against his two step-daughters and sentenced to twelve years imprisonment with a non-parole period fixed at ten years. The Victorian Court of Appeal quashed four convictions but otherwise dismissed the appeal. This had the effect of reducing the total effective sentence of imprisonment to eight and a half years. However, the non-parole period remained at ten years. The High Court upheld the decision of the Victorian Court of Appeal that the sentences imposed on the remaining counts were manifestly inadequate and it exercising its powers under s 569(1) of the Crimes Act (Vic) and re-sentencing the appellant on all remaining counts. The result was that the appellant received increased sentences on all the remaining counts with a total effective sentence of twelve years imprisonment and a non-parole period of ten years. Some of the sentences were concurrent and some were cumulative. 52 McL differs from the present case in that in McL there was an appeal against all convictions and four were quashed. There is no appeal against conviction in the present case. Section 7(1) depends upon there being an appeal against conviction and the appellant not being properly convicted on some count or part of the indictment but being properly convicted on some other count or part of the indictment. It is not directed to the case where there is no appeal against conviction but an application for leave to appeal against sentence. 53 In the opening words of their judgment in McL Gleeson CJ, Gaudron & Callinan JJ at 1320 highlighted the limitations of s 569(1) of the Crimes Act 1968 (Vic), the counterpart of s 7(1) of the Criminal Appeal Act 1912 (NSW) by stating that it gave power to the Court of Appeal "in a criminal appeal, in certain circumstances, to re-sentence an appellant who has been convicted of multiple offences and who successfully appeals against some of his convictions." 54 Section 5(1)(c) of the Criminal Appeal Act 1912 provides that a person convicted on indictment may appeal with the leave of the Court against the sentence passed on the person's conviction. Section 6(3) provides that on an appeal under s 5(1) against a sentence, the Court, if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal. Sections 5(1)(c) and s 6(3) do not empower this Court of its own motion or at the invitation of the Crown to intervene in respect of sentences in respect of which no appeal is brought by either the appellant or the Crown. There is no equivalent of s 7(1) where there is an appeal against sentence simpliciter. 55 The situation which exists is anomalous but there is no statutory provision which enables the Court to overcome it, where, as here, there is an excessive sentence on one count and inadequate sentences on all or most of the other counts. There is a pressing need for remedial legislation to cover this unfortunate gap. Regrettably, the Court is bound to proceed on the basis that it cannot disturb any of the current fixed term three year sentences. Pending any remedial legislation the Crown should give consideration, where there are multiple counts, to revising its traditional approach of looking at the overall sentence and not appealing if the overall sentence is within permissible limits even though some of the individual sentences are manifestly inadequate. Of course, this would only be necessary where there has been an application for leave to appeal against one or some of a number of sentences by an accused and the remaining sentences are manifestly inadequate. One of the problems which the Crown faces is that it does not know whether the application for leave to appeal by the accused and his appeal will be successful. Nevertheless, to protect the public interest the Crown may, in such a situation, need to appeal against the inadequate sentences. 56 The question now arises as to the correct sentence to be imposed on Count 14. I have previously demonstrated the high criminality of the appellant's conduct on this count. The appellant made extensive admissions on his arrest on 5 April 1998 and further admissions on 7 April 1998. He pleaded guilty and has saved the community the expense of a number of trials, some of which would have taken some days. Many witnesses have been spared from having to give evidence. In some instances he named some of those involved with him in the offences, but mostly he declined to name his co-offenders. 57 He was born on 28 December 1977 so that he was either twenty or twenty-one when he committed this series of offences. He came to Australia from New Zealand in about early 1997. He had no prior convictions in Australia. He did have convictions in New Zealand for a break, enter and steal offence and some domestic incidents. The evidence does not disclose why he fell into such a serious and extended cycle of crime. The judge thought that special circumstances existed consisting of his young age, his lack of previous conviction and his co-operation with the authorities. I agree that there were special circumstances. This finding was not challenged. 58 It is doubtful whether the Crown would have been able to prove all the offences to which the appellant pleaded guilty without his admissions. At the start of his police interview the applicant was told that for an early plea he was entitled to a reduction in his sentence. Having regard to the gravity of the criminality, but taking into account the subjective features the sentence imposed was manifestly excessive and out of line with other sentences for a brutal armed robbery. The appellant is entitled to a discount for his early plea of guilty and his early admissions. A correct sentence on Count 14 would have been one comprising a term of imprisonment of fourteen years with a non-parole period of eight years. In reaching this conclusion, I have taken into account the offence of possessing a loaded firearm in King Street, Newtown. In addition to the special circumstances found by the judge I would add the cumulation of the sentences proposed in these reasons. 59 If this court had been so empowered I would have increased the sentences on the other counts of armed robbery. For example, on counts 20 & 21 involving the robbery of $20,000 from the Auburn Village Tavern and the robbery of the hotel manager (HA) personally respectively I would have imposed sentences of equal length to that imposed on count 14 having regard to the treatment and dire threats to which the hotel manager was subjected, notwithstanding that no other offences were being taken into account on those counts. To reflect adequately the criminality involved on the remaining counts of armed robbery (counts 1, 3, 4, and 6-13, 15-19 and 22-44. I would have imposed concurrent sentences of twelve years with a non-parole period of eight years on those counts. Applying the principles of totality I would have made the various sentences partly concurrent and partly cumulative, that is, I would have directed that the sentences on counts 1, 3, 4, 6 to 13, 15-19 and 22-44 (all inclusive) of 12 years with a non parole period of 8 years commence on 5 April 1998 and those on counts 14, 20 and 21 of fourteen years imprisonment commence on 5 April 2002 with a non parole period of 8 years to commence on that day. On count 5 (assault with intent to rob while armed with a dangerous weapon) I would have imposed a fixed term sentence of imprisonment of six years to start on 5 April 1998. 60 However, as earlier explained, because of the gap in the legislation, that is not a course which the court is empowered to take. The question at issue in the present case is whether the sentence imposed on count 14 should be cumulative or concurrent on the fixed term sentences of three years imposed on the other counts. The original sentence of 18 years with a minimum term of 12 years for count 14 was concurrent with the fixed three year terms. That sentence has had to be reduced to accord with principle but that does not mean that the reduced term should be concurrent. If that sentence was concurrent with the other sentences the total criminality would not be adequately reflected in the sentences imposed. Accordingly, the sentence on count 14 should be cumulative to those imposed on the other counts. 61 I propose the following orders:
(i) Leave to appeal against sentence on count 14 granted, appeal allowed; sentence quashed;
(ii) In lieu of the sentence imposed on count 14 the prisoner is sentenced to 14 years imprisonment to be cumulative on the fixed three year terms of imprisonment imposed by Judge Viney on the other counts; such 14 year sentence to start on 5 April 2001 with a non parole period of eight years commencing on that day.
********** - 26 - IN THE COURT OF CRIMINAL APPEAL CCA 60104/99
1 SHELLER JA: I agree with Smart AJ. 2 DOWD J: The applicant, having pleaded guilty on 15 October 1998, was sentenced on 5 March 1999 by Viney QC DCJ, in the Penrith District Court. 3 The applicant was charged and pleaded guilty to forty-two charges of robbery armed with a dangerous weapon, contrary to s97(2)(ii) of the Crimes Act 1900 ('the Act'). This offence carries a maximum penalty of twenty-five years imprisonment. The applicant was also charged with one count of assault with intent to rob whilst armed with a dangerous weapon, contrary to s97(2) of the Act, which similarly carries a maximum of twenty-five years imprisonment, and had taken into account a Form 1 offence of possessing a loaded firearm in a public place contrary to s93G(1)(a)(i) of the Act, which carries a maximum penalty of ten years imprisonment. 4 The offences occurred over a relatively short period of time, from early December 1997 to April of 1998. The applicant was sentenced on the fourteenth charge, taking into account the offence under Form 1, to a minimum term of twelve years penal servitude commencing on 5 April 1998, being the date that he went into custody, and to expire on 4 April 2010. He was sentenced to an additional term of six years, to commence on 5 April 2010 and to expire on 4 April 2016. 5 On each of the remaining charges, the applicant was sentenced to a fixed term of three years penal servitude, to commence on 5 April 1998 and to expire on 4 April 2001, the latter sentences to be served concurrently with the offence for which he received twelve years. 6 I have read the judgment in draft form of Smart AJ, and would agree with the summary of facts and the reasons outlined in his Honour's judgment, except for the issue of totality as set out below. I would only add a few additional facts. 7 In respect of paragraph 8(f), concerning the Royal Hotel, Granville, I would add that on 6 April 1998, a co-accused, Tovio Antonio, surrendered himself to Fairfield Police Station, where he fully admitted to his involvement in the offence. Antonio implicated the applicant as being the person in the hotel with him, and in carrying the firearm. The description that was given by witnesses is consistent with that of the applicant, and the additional inquiries confirmed an association between the applicant and Crichton. 8 In relation to paragraph 8(h), regarding the Belfield RSL Club, I could only add the following. On 6 April 1998, a co-accused, Tovio Antonio, surrendered to police, and fully admitted his involvement in the offence. He implicated the applicant as being involved, and stated that the applicant was armed with a sawn off rifle. Additional inquiries confirmed the association of the applicant and Antonio on the morning of the offence. The applicant however, refused to comment on the offence. 9 Finally, in relation to paragraph 8(i) concerning the Fairfield Hotel, I would note additionally that the applicant later admitted to being the person at the door, and admitted that he was armed with a pistol. 10 Before turning to the matters concerning the application of the principles of Pearce v The Queen (1998) 194 CLR 610, as set out from paragraph 10 onwards of His Honour's judgment, I wish to set out and deal with the applicant's grounds of appeal. The applicant submits that the sentence imposed by the Sentencing Judge was manifestly excessive, and that the learned Judge fell into error by: 1) Placing too much weight on the need for general deterrence, in relation to Mr Itamua. 2) Placing insufficient weight on the applicant's plea at the earliest possible occasion. 3) Placing insufficient weight on the applicant's subjective feature, including: · His relatively young age at the time of the offences (21); · His prior good character and reputation; · His excellent prospects of rehabilitation; · His contrition and remorse. 4) Placing insufficient weight on the applicant's assistance to the police. 5) In assessing the overall criminality, the Sentencing Judge placed too much weight of the subjective features of count 14.
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…"
Charge H 478669/15 reads: "That Donny Itamua on the 14th day of January 1998 at Auburn … being then armed with a dangerous weapon, to wit, a long barrelled handgun, a semi automatic pistol and a baseball bat did rob M- M- of certain property, to wit a man's wallet, $300 in cash, one 18ct gold chain …the property of the said M- M-." 35 This corresponds with count 14 on the Schedule of Offences handed to the judge at the sentence hearing. The judge said: "I propose to impose a sentence in respect of matter number 14 which, on the face of it, seems to be one of the most serious of the offences, individually, and reflect in that sentence the total criminality. Although the offences occurred over a period of some months, it could be said they were one episode of criminality … I do not think it is appropriate, given the length of sentence I propose to impose, to have cumulative sentences. On the other matters there will be fixed terms." 36 It will be necessary to look at count 14 and the overall position.
Count 14 37 About 1.50 am on 14 January 1998 up to five offenders entered the Auburn Village Tavern armed with a long barrelled handgun, a semi automatic pistol, a baseball bat and a club lock. All five men wore balaclavas or other disguises. One was a big man. He announced that this was a robbery, that they were serious and would shoot. Three of the men ordered everyone to the backroom. One man was hit in the ribs with the baseball bat and another on the face. Three of the men tied the hands of the patrons behind their backs. MM was tied around his hands and ankles and hit on the right side of the head with the bat. The barman was grabbed by the hair. The manager was taken away. Three of the men went around each patron on the floor taking their wallets and jewellery. One took MM's wallet and tore his gold chain from his right wrist. A few minutes later the manager was brought back and sank to the floor. The man with the baseball bat said to the manager that he had not opened the safe downstairs but the manager asserted that he had. The man with the baseball bat threatened to blow the manager's head off. The manager said that they should take him downstairs. He got up and went with that man and later returned. One of the men hit MM with a club-lock. MM was aged 17. 38 As the robbers left one of them stated "Don't go near the doors for the next fifteen minutes or we will blow your heads off. Don't try to be a hero." 39 In his recorded interview of 5 April 1998 the appellant said that he was involved as a driver, driving the men to the Tavern. He did not go inside the Tavern. He appeared to be aware that wallets were taken from patrons at the Tavern but unaware that there had been any physical violence. He knew that when he drove the men to the Tavern they were going to commit an armed robbery and that when he went back to the house they would have money from the armed robbery. When they returned to David's house after the armed robbery they gave him money, being part of the moneys taken during that armed robbery. 40 In his further recorded interview of 7 April 1998 the appellant confirmed that there were at least five people involved in the armed robbery of the Auburn Village Tavern. The appellant said that he was involved in driving some of the men to the Tavern. He had become aware about an hour prior to that the men were going to commit an armed robbery. He had earlier driven the men to David Lipani's house, the robbery headquarters which were a short distance from the Tavern. After dropping the men off at the Tavern he went back to that house.
(a) Auburn Village Tavern - Seven other people were the subjects of robbery whilst armed with a dangerous weapon and six were subjected to broadly similar treatment. One of those people, namely, the Night Manager of the Tavern, was subjected to even worse treatment. He was coerced by the armed robbers into opening up various places where money was kept and helping them to take the Tavern's money. He was subjected to dire threats including death threats if he failed to co-operate. About $20,000 of the Tavern's money was stolen. He also had his wallet, $175 cash, personal papers and cards taken.
Four males forced their way into the hotel about midnight. Weapons included a handgun and a baseball bat. The victims were bound with tape and the keys taken from the manager. The offenders took $20,000 of the hotel's money. Five individuals in the hotel were also the victims of an armed robbery. In his recorded interview the appellant admitted being involved in the planning and preparation of the offences. He was aware that an armed robbery was to be committed by his associates and took them to the vicinity of the hotel for that purpose. He drove his brother's car and waited in the car during the armed robberies. He drove the co-accused from the hotel knowing they had committed an armed robbery and later that morning received part of the proceeds from the offences.
(c) Lucky L'ils Hotel, Parramatta - 19 January 1998
The appellant who was in possession of a pistol attended the hotel with an unknown co-accused. The appellant was not wearing a balaclava. Four staff within the hotel were threatened and three of these staff members were tied up with plastic ties. The Assistant Manager was forced to open two safes. About $20,500 in cash belonging to the hotel was taken. Four individuals were also the victims of an armed robbery.
About 12.10 pm the appellant drove his brother's vehicle with two accomplices to the vicinity of the Rosehill Hotel. The co-accused entered the hotel both armed with handguns and threatened the staff and patrons. Money was taken from the cash register. The Manager was forced to open a safe and cash of $11,959 was stolen. Patrons were forced to lie on the ground. The accomplices left the hotel and returned to the vehicle driven by the appellant which left the scene. The appellant admitted being involved in the planning and preparation of the offence; he was aware that an armed robbery was to be committed by his associates. He drove the co-accused from the hotel knowing that they had committed an armed robbery and received part of the proceeds from the offence.
Shortly after midnight two co-offenders entered the Club with their faces covered, one of them being armed with a handgun. Staff and patrons inside the Club were forced to lie on the floor in the Manager's office. The Manager was forced to open the safe and money was stolen. Cash drawers about the Club were also ransacked and money was stolen from these drawers. About $44,000 in cash of the Club was taken. Three individuals were also the victims of threats and armed robberies. The appellant drove his brother's vehicle to the vicinity of the offence and went inside the Club to confirm that there were not too many staff members thus making it a "low risk" job. After canvassing the Club the appellant returned to the car and informed the two co-offenders of his observations. The appellant waited in the car during the offences. He drove the co-offenders from the Club knowing that they had committed an armed robbery and later that morning received part of the proceeds from the offences.
The appellant and a co-offender, by arrangement with the hotel doorman, entered the hotel which was closed. One of the offenders was armed with a semi-automatic handgun. At the time staff were counting the takings; threats were made and eventually $6,000 was stolen from the hotel. One individual was also the victim of an armed robbery. The available evidence was that it was the appellant who was the offender who entered the hotel with a gun. While the appellant admitted that he was involved in the preparation and planning of the offence and sharing in the proceeds he denied that he entered the hotel with a gun. He refused to name the other offenders.
About 4.00 am three offenders entered the hotel wearing balaclavas and armed with a semi-automatic handgun and a black aluminium baseball bat. Three staff members were threatened, two of them being immediately forced to the floor and being tied with cable ties. The Manager was forced to open a safe from which $21,000 was stolen. He was also tied with cable ties. Two individuals were also victims of the armed robbery. The appellant admitted to being involved in the planning and preparation of the offences, being aware that an armed robbery was to be committed by his associates, taking them in a vehicle to the vicinity of the hotel for that purpose and driving them from the hotel knowing that they had committed an armed robbery. The appellant received part of the proceeds from the offence.
On 16 March 1998 the appellant and a co-offender gained access to the club, the appellant being armed with a sawn off rifle. Both offenders were wearing balaclavas. Staff and cleaners were threatened and forced on to the floor. The Administration Officer was forced to open the safe from which $16,000 was removed by the offenders. One of the staff members was also the victim of an armed robbery.
The appellant pleaded guilty to an assault with intent to rob whilst armed with a dangerous weapon. A co-offender had attended at the hotel and surveyed it. The hotel's security officer became suspicious and locked the doors of the Hotel. About 2.30 am the appellant wearing a balaclava and armed with a black handgun tried to force his way into the hotel through the doors. He pointed the handgun at the hotel security officer through a set of glass doors telling him that it was a holdup and for him to open the doors. The security officer refused and the appellant ran off.
About 1.40 am three offenders with their faces covered entered the hotel with one of them being armed with an automatic handgun. Staff and patrons inside the hotel were threatened and forced to lie on the floor. A security officer was forced to open a register in the poker machine change area and approximately $5,566 was removed by the armed offender. Four victims in the hotel were also the subject of armed robberies. The appellant admitted to being involved in the planning and preparation of the offence, driving his brother's vehicle and his associates to the vicinity of the hotel and being aware that an armed robbery was to be committed by them. He waited in the car during the offence and drove the co-accused from the hotel knowing that they had committed an armed robbery. Later he received part of the proceeds from the offences.
About 9.50 pm an offender entered the hotel carrying a silver pistol with a long barrel and a metal table leg. He wore a balaclava. He ordered the staff and patrons on to the floor and tied the four of them up. Another three masked male offenders entered the hotel. One of these offenders was armed with a double barrelled shotgun. The hotel Manager was forced to open the hotel's safe. An amount of $4744 was removed. The hotel Manager was again bound and forced to lie on the flor. The appellant was identified by fingerprints developed on the table leg used during the commission of the offence. The Manager, another hotel employee and two patrons were each the victim of an armed robbery. The property taken from the individuals consisted of cash and assorted jewellery to the value of $15,000.
(l) Warwick Farm (Sunnybrook Hotel ) - 12 March 1998
The appellant and three co-offenders entered the hotel about 1.35 am with the connivance of the security doorman. One co-offender who was armed with a black handgun threatened two victims. They were bound; one victim was made to open the hotel safe, whereupon $2,000 was removed. The appellant stated that he was the driver of his brother's vehicle during the armed robbery.
The charge is that being armed with dangerous weapon, the appellant attempted to rob persons unknown of certain property, to wit, certain property including cash monies the property of the Sandringham Hotel. The appellant was arrested about 12.20 am opposite the Sandringham Hotel where he was getting ready to rob the hotel. He was carrying a semi-automatic pistol. He was further charged with possessing a loaded firearm, which was loaded with ten rounds of ammunition, in a public place, namely, the footpath of King Street, Newtown. 41 Thus, it can be seen that the appellant attended at thirteen hotels or clubs. In addition to the robbery of these, some thirty one individuals were the victims of an armed robbery. In some instances the evidence establishes that the appellant engaged in the preparations for the offence, driving co-offenders to the scene of the robbery knowing that a robbery was to take place, waiting for them, driving them away knowing a robbery had been committed and participating in the proceeds of the offence. In other instances the appellant's involvement was even greater as he participated physically in the carrying out of the armed robberies in some of the hotels or clubs. The criminality revealed as to Count 14 was very high. It was also very high in other instances. 42 In Pearce v The Queen (1998) 194 CLR 610 at 623-4, McHugh, Hayne and Callinan JJ said: "To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences." 43 The course taken by the sentencing judge in the present case reflected the practice which existed in New South Wales prior to Pearce. Indeed, the Court of Criminal Appeal of this State had made it clear that on sentence appeals it was only concerned with the effective total of the sentences involved and not with the matter in which individual sentences were structured. That approach is no longer open. In Pearce at p 624 the High Court further said "The appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against 'a sentence', it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the court 'is of opinion that some other sentence … is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor'" 44 The importance of the principle of totality was emphasised by the High Court in Mill v The Queen (1988) 166 CLR 59 at 62-63. At p 63 the Court said as to totality:
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." 45 The approach taken in Pearce has special force where the major sentence has been imposed on one count and subsequently the conviction on that count has been quashed and either a verdict of acquittal entered or a new trial ordered. This brings into sharp focus the correctness of the sentences imposed on the other counts. 46 The problem faced by a sentencing judge becomes acute where there are a large number of offences being dealt with. In Fraser [2000] NSWCCA 97 at para 18 this Court held that where the offender has been sentenced for as many as twenty five offences the Court is not obliged to impose a series of separate sentences with separate commencement dates. The idea of imposing twenty five consecutive sentences each of a few months would be both impractical and verging on the absurd. The problems are usually best overcome by making the sentences concurrent or partially cumulative and partially concurrent or by making one group of sentences on a number of charges concurrent and another group of sentences on a number of other charges, those sentences being concurrent as between themselves, cumulative on the first group. This last mentioned course was permissible at the time the judge imposed his sentences.
47 It is unnecessary to deal with the other grounds of appeal against sentence as the Court has to re-sentence to conform with Pearce. 48 The concurrent sentences for a fixed term of three years are in almost all instances manifestly inadequate having regard to the gravity of the offences. On the other hand, a sentence of eighteen years with a non-parole period of twelve years for one count of robbery whilst armed with a dangerous weapon is, in the circumstances of this case, manifestly excessive, even allowing for the fact that it was a bad case. The judge in his reasons stated that he was reflecting the total criminality in the sentence he was imposing on Count 14. That is not an approach which Pearce and Mill permit. When the judge dealt with these sentences on 5 March 1999 he did not have the power to impose sentences that were partly concurrent and partly cumulative. That limitation has been overcome by s 55(2) of the Crimes (Sentencing Procedure) Act 1999 which commenced on 3 April 2000. 49 As earlier noted there has been no appeal by the appellant against the concurrent fixed term sentences of three years penal servitude. Nor has the Crown appealed against their inadequacy despite this being manifest. The question arises whether this Court if it considers that the judge has erred in his approach can alter the fixed term three year sentences on the ground that they were manifestly inadequate and that the overall sentence which remains after resentencing on Count No 14 does not adequately reflect the totality of the criminality. 50 In McL v The Queen (2000) 74 ALJR 1319 the High Court considered s 569(1) of the Crimes Act 1958 (Vic). Section 7(1) of the Criminal Appeal Act 1912 is to the same effect. That sub-section provides: "7(1) If it appears to the court that an appellant on an appeal under section 5(1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted." 51 McL was convicted on numerous counts of sexual offences against his two step-daughters and sentenced to twelve years imprisonment with a non-parole period fixed at ten years. The Victorian Court of Appeal quashed four convictions but otherwise dismissed the appeal. This had the effect of reducing the total effective sentence of imprisonment to eight and a half years. However, the non-parole period remained at ten years. The High Court upheld the decision of the Victorian Court of Appeal that the sentences imposed on the remaining counts were manifestly inadequate and it exercising its powers under s 569(1) of the Crimes Act (Vic) and re-sentencing the appellant on all remaining counts. The result was that the appellant received increased sentences on all the remaining counts with a total effective sentence of twelve years imprisonment and a non-parole period of ten years. Some of the sentences were concurrent and some were cumulative. 52 McL differs from the present case in that in McL there was an appeal against all convictions and four were quashed. There is no appeal against conviction in the present case. Section 7(1) depends upon there being an appeal against conviction and the appellant not being properly convicted on some count or part of the indictment but being properly convicted on some other count or part of the indictment. It is not directed to the case where there is no appeal against conviction but an application for leave to appeal against sentence. 53 In the opening words of their judgment in McL Gleeson CJ, Gaudron & Callinan JJ at 1320 highlighted the limitations of s 569(1) of the Crimes Act 1968 (Vic), the counterpart of s 7(1) of the Criminal Appeal Act 1912 (NSW) by stating that it gave power to the Court of Appeal "in a criminal appeal, in certain circumstances, to re-sentence an appellant who has been convicted of multiple offences and who successfully appeals against some of his convictions." 54 Section 5(1)(c) of the Criminal Appeal Act 1912 provides that a person convicted on indictment may appeal with the leave of the Court against the sentence passed on the person's conviction. Section 6(3) provides that on an appeal under s 5(1) against a sentence, the Court, if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal. Sections 5(1)(c) and s 6(3) do not empower this Court of its own motion or at the invitation of the Crown to intervene in respect of sentences in respect of which no appeal is brought by either the appellant or the Crown. There is no equivalent of s 7(1) where there is an appeal against sentence simpliciter. 55 The situation which exists is anomalous but there is no statutory provision which enables the Court to overcome it, where, as here, there is an excessive sentence on one count and inadequate sentences on all or most of the other counts. There is a pressing need for remedial legislation to cover this unfortunate gap. Regrettably, the Court is bound to proceed on the basis that it cannot disturb any of the current fixed term three year sentences. Pending any remedial legislation the Crown should give consideration, where there are multiple counts, to revising its traditional approach of looking at the overall sentence and not appealing if the overall sentence is within permissible limits even though some of the individual sentences are manifestly inadequate. Of course, this would only be necessary where there has been an application for leave to appeal against one or some of a number of sentences by an accused and the remaining sentences are manifestly inadequate. One of the problems which the Crown faces is that it does not know whether the application for leave to appeal by the accused and his appeal will be successful. Nevertheless, to protect the public interest the Crown may, in such a situation, need to appeal against the inadequate sentences. 56 The question now arises as to the correct sentence to be imposed on Count 14. I have previously demonstrated the high criminality of the appellant's conduct on this count. The appellant made extensive admissions on his arrest on 5 April 1998 and further admissions on 7 April 1998. He pleaded guilty and has saved the community the expense of a number of trials, some of which would have taken some days. Many witnesses have been spared from having to give evidence. In some instances he named some of those involved with him in the offences, but mostly he declined to name his co-offenders. 57 He was born on 28 December 1977 so that he was either twenty or twenty-one when he committed this series of offences. He came to Australia from New Zealand in about early 1997. He had no prior convictions in Australia. He did have convictions in New Zealand for a break, enter and steal offence and some domestic incidents. The evidence does not disclose why he fell into such a serious and extended cycle of crime. The judge thought that special circumstances existed consisting of his young age, his lack of previous conviction and his co-operation with the authorities. I agree that there were special circumstances. This finding was not challenged. 58 It is doubtful whether the Crown would have been able to prove all the offences to which the appellant pleaded guilty without his admissions. At the start of his police interview the applicant was told that for an early plea he was entitled to a reduction in his sentence. Having regard to the gravity of the criminality, but taking into account the subjective features the sentence imposed was manifestly excessive and out of line with other sentences for a brutal armed robbery. The appellant is entitled to a discount for his early plea of guilty and his early admissions. A correct sentence on Count 14 would have been one comprising a term of imprisonment of fourteen years with a non-parole period of eight years. In reaching this conclusion, I have taken into account the offence of possessing a loaded firearm in King Street, Newtown. In addition to the special circumstances found by the judge I would add the cumulation of the sentences proposed in these reasons. 59 If this court had been so empowered I would have increased the sentences on the other counts of armed robbery. For example, on counts 20 & 21 involving the robbery of $20,000 from the Auburn Village Tavern and the robbery of the hotel manager (HA) personally respectively I would have imposed sentences of equal length to that imposed on count 14 having regard to the treatment and dire threats to which the hotel manager was subjected, notwithstanding that no other offences were being taken into account on those counts. To reflect adequately the criminality involved on the remaining counts of armed robbery (counts 1, 3, 4, and 6-13, 15-19 and 22-44. I would have imposed concurrent sentences of twelve years with a non-parole period of eight years on those counts. Applying the principles of totality I would have made the various sentences partly concurrent and partly cumulative, that is, I would have directed that the sentences on counts 1, 3, 4, 6 to 13, 15-19 and 22-44 (all inclusive) of 12 years with a non parole period of 8 years commence on 5 April 1998 and those on counts 14, 20 and 21 of fourteen years imprisonment commence on 5 April 2002 with a non parole period of 8 years to commence on that day. On count 5 (assault with intent to rob while armed with a dangerous weapon) I would have imposed a fixed term sentence of imprisonment of six years to start on 5 April 1998. 60 However, as earlier explained, because of the gap in the legislation, that is not a course which the court is empowered to take. The question at issue in the present case is whether the sentence imposed on count 14 should be cumulative or concurrent on the fixed term sentences of three years imposed on the other counts. The original sentence of 18 years with a minimum term of 12 years for count 14 was concurrent with the fixed three year terms. That sentence has had to be reduced to accord with principle but that does not mean that the reduced term should be concurrent. If that sentence was concurrent with the other sentences the total criminality would not be adequately reflected in the sentences imposed. Accordingly, the sentence on count 14 should be cumulative to those imposed on the other counts. 61 I propose the following orders:
(i) Leave to appeal against sentence on count 14 granted, appeal allowed; sentence quashed;
(ii) In lieu of the sentence imposed on count 14 the prisoner is sentenced to 14 years imprisonment to be cumulative on the fixed three year terms of imprisonment imposed by Judge Viney on the other counts; such 14 year sentence to start on 5 April 2001 with a non parole period of eight years commencing on that day.
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R
Itamua
(1988) 166 CLR 59
(2000) 74 ALJR 1319
(1998) 194 CLR 610
(1999) 46 NSWLR 436