R v John Octavian Iliescu Scc [1986] ACTSC 14 (7 March 1986)

SUPREME COURT OF THE ACT

THE QUEEN v. JOHN OCTAVIAN ILIESCU
S.C.C. No. 41 of 1983
S.C.C. No. 1 of 1986
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Criminal Law - Cumulative Sentences - Power to impose.

Crimes Act 1900 (NSW), ss.444, 447 and 556C.

Campbell v. The Queen [1985] FCA 13; (1985) 58 ALR 407

HEARING

CANBERRA
7:3:1986

DECISION

I turn to the question of sentence for the 14 offences on which the accused was committed for sentence, taking into account the 147 offences on the schedule. A threshhold question is the court's power to impose a cumulative sentence. It is now authoritatively decided that in respect of the power to impose cumulative sentences where at the time of passing sentence the term of any sentence of imprisonment previously passed on the accused in unexpired, the provisions of s.444 of the Crimes Act 1900 (NSW) in their application to the A.C.T. apply. Section 444(1) provides that in those circumstances the Judge may direct that the sentence for the offence of which the accused then stands convicted shall commence at a future day to be named by the Judge and to be within or at the expiration of the period of such unexpired sentence. Section 444(2) provides that where no such direction is given, the sentences shall be concurrent.

2. The submission on behalf of the Crown was that the power of this court derives from s.444 and is confined in the present circumstances to one sentence cumulative on the sentence of 12 months imprisonment which I have just pronounced.

3. It was conceded on behalf of the Crown that s.447 of the Crimes Act 1900 (NSW) would not apply in the present circumstances because the accused is not a person convicted on the same indictment of two or more offences similarly punishable. Section 447 is in the following terms:

"447. Where a person is, in any case, convicted on

the same indictment of two or more offences similarly
punishable, the Judge may, if he thinks fit, pass
sentence on the second and third counts respectively
for a term to commence at a future day named by him,
within, or at the expiration of, the term of sentence
passed on the last preceding count."

4. In my view this submission is not correct and should be rejected. I seriously doubt whether s.444 applies. Section 444 is in the following terms:

"444.(1) Where a person is convicted of any
offence, and at the time of passing sentence the term
of any sentence of imprisonment previously passed on
him is unexpired, the Judge may direct that the
sentence for the offence of which such person then
stands convicted shall commence at a future day to be
named by the Judge, and to be within, or at the
expiration of the period of such unexpired sentence.

(2) Where no such direction is given the
sentences shall be concurrent."

5. The accused is a person convicted of an offence within the meaning of the preliminary words of s.444(1) but it is at least arguable whether a sentence of imprisonment previously passed on him is unexpired.

6. It would be consistent with the Crown's submission to regard the term of 12 months to which I have just committed the accused to prison as a sentence of imprisonment previously passed on him within the meaning of s.444(1). However, in Campbell v. The Queen [1985] FCA 13; (1985) 58 ALR 407, the Federal Court gave guidance as to the meaning of s.444. In that case the Federal Court quashed cumulative sentences imposed pursuant to s.556C(4) for breaches of recognisances. The sentences under consideration in that matter were really in the reverse order of the sentences which fall for consideration in this case. In Campbell the appellant had pleaded guilty in the Supreme Court to charges of stealing a motor car and setting fire to it respectively. In relation to the offence of stealing the accused had been sentenced to 6 months imprisonment suspended upon his entering into a recognisance to be of good behaviour for a period of 2 years and to observe other conditions. For the other offence he had been sentenced to imprisonment for 12 months suspended upon his entering into a recognisance subject to the same conditions. The appellant committed several breaches of the recognisances and for one offence constituting such a breach he was sentenced in the Magistrates Court to two years imprisonment with a non-parole period of 12 months. When he appeared before this court for breaches of the recognisance granted by this court I sentenced him to the original periods of 6 months and 12 months respectively, ordered that they be served concurrently and that they commence at the expiration of the sentence of 2 years imposed by the Magistrates Court.

7. The Federal Court held that I was wrong in purporting to pass a cumulative sentence pursuant to s.444. The submission for the appellant which was upheld by the Federal Court was that in applying under s.556C(4) this court was not "passing sentence" within the meaning of s.444(1).

8. Applying the reasoning of that case to the matter now before the court, it seems to me that the term of 12 months for which I have committed the accused to prison to undergo imprisonment, is not "a sentence of imprisonment previously passed on him" within the meaning of s.444(1). Therefore, s.444 does not empower this court to pass a sentence of imprisonment cumulative upon the term of 12 months for which the accused has been committed to prison to undergo imprisonment pursuant to s.556C(4).

9. The question remains, however, whether s.447 of the Crimes Act 1900 has any application to the present case. As previously stated, the Crown conceded in argument that in relation to the 14 offences on which the accused was committed for sentence pursuant to s.90A of the Magistrates Court Ordinance 1930, adhered to his pleas of guilty and has been convicted, the accused is not a person convicted on the same indictment of two or more offences similarly punishable within the meaning of s.447. This concession, however, seems to disregard or give insufficient regard to the terms of s.90A(8) which reads:

"(8) Except where an order is made in pursuance of
the last preceding sub-section, the Supreme Court has
the same powers of sentencing or otherwise dealing with
the accused person and of finally disposing of the
charge and of all incidental matters as it would have
had if the accused person, on arraignment at any
sittings of the Court, had pleaded guilty to the
offence charged on an indictment filed by the
Attorney-General."

The exception has no application in the present case.

10. Applying the words of s.90A(8) and importing the plural where appropriate, this court has the same powers of sentencing as it would have had if the accused person on arraignment had pleaded guilty to the offences charged on an indictment filed by the Attorney-General. Hence s.447 would apply and empower this court to impose cumulative sentences within the limits prescribed.