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29
Court of Criminal Appeal 19 May 1999

R v Govinden

[1999] NSWCCA 118

Also reported as (1999) 106 A Crim R 314
Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING CROWN APPEAL ARMED ROBBERY IN COMPANY EXCEPTIONS.

Citation: R v Govinden [1999] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 19 May 1999
Judge(s): Dunford J, Greg James J, Smart AJ

Background

The respondent, a 19-year-old man, pleaded guilty to two offences: accessory after the fact to armed robbery (he had minded a shortened firearm used in a Pizza Hut robbery) and robbery in company (he entered a convenience store wearing a balaclava, holding a bag to collect cash while a co-offender brandished a replica pistol). Approximately $3,000 was taken in the second offence. Both offences occurred in 1998 when the respondent was 18.

At sentencing in the District Court, Judge Ainslie-Wallace deferred entering a conviction on the accessory charge, placing the respondent on a two-year good behaviour recognisance with supervision and psychotherapy. On the robbery in company charge, she imposed 200 hours of community service rather than a term of full-time imprisonment.

The Crown appealed, arguing the sentences were manifestly inadequate. The respondent had no prior convictions, had ceased drug use, was performing strongly at school, and had strong prospects of rehabilitation. His co-offenders, mostly juveniles dealt with in the Children's Court, had also received non-custodial outcomes.

  • Whether the non-custodial sentences imposed for armed robbery in company offences were so inadequate as to warrant intervention by the Court of Criminal Appeal
  • Whether the circumstances of this case brought it within the narrow category of "most exceptional" cases where a full-time custodial sentence is not required for such offences
  • Whether the Court of Criminal Appeal should, in the exercise of its discretion, decline to interfere even where some inadequacy was identified

Decision

Dunford J, with whom Greg James J and Smart AJ agreed, acknowledged that armed robbery in company ordinarily demands a full-time custodial sentence. However, the Court accepted that a narrow category of exceptional cases exists where departure from that general rule may be justified.

The Court identified several features that together placed this case within that exceptional category. The respondent was young and had no prior record. He was on the cusp of commencing university. The evidence of rehabilitation was strong and credible. The weapon used in the robbery was a replica incapable of causing injury. His co-offenders, including the apparent instigator, had received non-custodial sentences. Sending the respondent to prison while the instigator remained in the community was difficult to justify.

Dunford J nonetheless expressed the view that, even accepting a non-custodial outcome was appropriate, the community service order was excessively lenient. His Honour suggested a lengthy period of periodic detention (up to three years) would have been more fitting. However, the Crown did not press for an increase in any non-custodial sentence, confining its argument to whether full-time custody was required.

Taking into account the respondent's continued progress since sentencing, as evidenced by affidavits filed on the day of the appeal, the Court exercised its residual discretion to dismiss the appeal without varying the sentence.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • Armed robbery in company ordinarily attracts a full-time custodial sentence, but the Court of Criminal Appeal confirmed a narrow exception exists for "most exceptional" cases with compelling individual circumstances.
  • In dismissing the appeal, the Court considered the combination of youth, no prior record, strong rehabilitation evidence, non-lethal weaponry, and comparable non-custodial treatment of co-offenders as collectively sufficient to bring the case within that exceptional category.
  • A sentencing court's exercise of discretion in favour of a non-custodial outcome is not automatically corrected on Crown appeal merely because the appellate court regards it as lenient, particularly where the Crown limits the scope of its challenge.
  • Even where an appellate court finds a non-custodial sentence excessively lenient in its form, it may decline to interfere where the Crown does not press for variation of the non-custodial component and where post-sentencing progress is demonstrated.
  • The respondent's progress after sentencing, presented by affidavit on the appeal hearing date, was a relevant consideration in the Court's exercise of its discretion to dismiss rather than intervene.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery and robbery in company)

Cases
- R v Readman (1990) 47 A Crim R 181
- R v Roberts (1994) 73 A Crim R 306
- R v Maddocks (CCA, unreported, 25 November 1993)
- R v Wright (1997) 93 A Crim R 48
- R v Henry and Ors [1999] NSWCCA 111
- R v Richards (1981) 2 NSWLR 464
- R v Tocknell (CCA, unreported, 28 May 1998)
- R v Tran [1999] NSWCCA 109
- R v Farah (CCA, unreported, 11 December 1998)
- R v Pham (1991) 55 A Crim R 129
- R v Lattouf (CCA, unreported, 12 December 1996)
- R v Broad (CCA, unreported, 13 March 1984)
- Postiglione v The Queen (1997) 189 CLR 295