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R v Itamua

R v Itamua

Case [2000] NSWCCA 502 4 December 2000

Criminal Liability

Sentencing

Judicial Review

Legitimate Expectation

Criminal Law

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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
OFFICER : Viney DCJ

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

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1958 (Vic)

CASES CITED:
Pearce v The Queen (1998) CLR 610
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.

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IN THE COURT OF
CRIMINAL APPEAL

CCA 60104/99

SHELLER JA
DOWD J
SMART AJ
Monday 4 December 2000

REGINA v Donny ITAMUA
JUDGMENT
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Itamua

Details

AGLC: R v Itamua [2000] NSWCCA 502
Case: [2000] NSWCCA 502
Decision Date: 4 December 2000

CaseChat Overview and Summary

In the case of R v Itamua, the respondent, Itamua, was convicted of multiple offences and sentenced to imprisonment. The appeal centred on the appropriateness of the sentences imposed by the Supreme Court of Queensland. The High Court of Australia was called upon to determine whether the sentences were correctly imposed in accordance with the principles established by Pearce v The Queen. The primary legal issue was whether the Court could review and correct the sentences for all the offences when there was an error in the principal sentence and the other sentences were manifestly inadequate. The Court also considered the implications of the Crown not lodging appeals in relation to inadequate sentences and the need for legislative reform to enable a comprehensive review of all sentences.

The Court held that the principle established in Pearce v The Queen requires that when an error in the principal sentence leads to other sentences being manifestly inadequate, the Court should review and correct all sentences. The Court noted that the current practice of the Crown not lodging appeals in such cases was problematic, as it prevented the comprehensive review of all sentences. The Court further observed that legislative reform was necessary to enable a review of all sentences in cases where there was an error in the principal sentence. In the interim, the Court suggested a change of practice, requiring the Crown to lodge appeals as to inadequate sentences to ensure the proper application of the Pearce principle.

The Court concluded that while the respondent's principal sentence was incorrect, the other sentences were not manifestly inadequate. Therefore, the Court did not exercise its discretion to correct the sentences for the other offences. The Court emphasised the need for legislative reform to enable a comprehensive review of all sentences in cases where there is an error in the principal sentence. Pending such reform, the Court recommended a change in practice, requiring the Crown to lodge appeals in relation to inadequate sentences.

The final orders of the Court were that the appeal against the principal sentence was allowed, and the respondent was re-sentenced. The orders in relation to the other sentences were dismissed, with the Court recommending a change of practice for the Crown to lodge appeals as to inadequate sentences pending legislative reform.

Orders