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57
Court of Criminal Appeal 31 August 2000

R v Bavadra

[2000] NSWCCA 292

Also reported as [2000] 115 A Crim R 152
Assault & violenceTheft & propertyFirearms & weapons
CATCHWORDS CRIMINAL LAW APPEALS S5D OF THE CRIMINAL APPEAL ACT 1912 ROBBERY WHILST ARMED ROBBERY IN COMPANY

Citation: R v Bavadra [2000] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 31 August 2000
Judge(s): Beazley JA; Wood CJ at CL; Greg James J

Background

The respondent pleaded guilty in the Liverpool District Court to seven counts of robbery: two counts of robbery whilst armed with an offensive weapon, two counts of robbery in company, and three counts of robbery whilst armed with a dangerous weapon. The offending spanned approximately seven months between October 1997 and May 1998. It included a bank robbery in which staff were threatened at gunpoint and forced to the floor, a convenience store robbery in which a victim had a gun held to his head and was stabbed by a co-offender, and several other serious armed robberies.

Eleven additional offences were listed on a Form 1 (a procedural mechanism by which a sentencing court takes further charges into account without recording separate convictions). The sentencing judge at first instance imposed sentences ranging from three to ten years, all structured to run concurrently.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal under section 5D of the Criminal Appeal Act 1912, arguing that the sentences were manifestly inadequate. Three grounds were advanced: insufficient weight given to the Form 1 offences, manifest inadequacy in the individual sentence for each count, and an improper use of fully concurrent sentences that failed to reflect the totality of the respondent's criminality.

  • Whether the sentencing judge gave adequate weight to the eleven Form 1 offences when imposing sentence
  • Whether the individual sentences for each count were manifestly inadequate, having regard to the objective seriousness of the offences and the aggravating circumstances
  • Whether the sentencing judge erred by structuring all sentences to run concurrently, failing to apply the principle of totality correctly
  • Whether, on a Crown appeal, new sentences should be reduced to account for the principle of double jeopardy

Decision

The Court of Criminal Appeal held that the sentencing judge had not given the Form 1 offences proper weight. Where serious offences appear on a Form 1, they must be genuinely taken into account in the sentence, not merely noted. The Court found that even if the Form 1 matters were distributed across the three most serious counts, the overall criminality was still not adequately reflected.

The Court confirmed that the seriousness of individual offences must be assessed both objectively and by reference to the maximum penalties set by the legislature. A sentencing judge may take into account all of the defendant's conduct, including aggravating circumstances, provided the defendant is not sentenced for a more serious offence than that charged. The respondent's conduct escalated over the period of offending, and the Court found the sentencing judge had not given sufficient weight to this pattern of accelerating criminality.

The Court further found that structuring all sentences to run concurrently was a significant legal error. Concurrent sentences did not adequately mark the total criminality involved across seven separate counts, plus eleven Form 1 matters. The proper application of the totality principle required at least partial accumulation of sentences.

On resentencing, the Court applied the double jeopardy principle, which operates to moderate the increase in sentence imposed on a Crown appeal, because a respondent who has already been sentenced once faces the additional burden and uncertainty of a second sentencing exercise. The Court also applied the guideline judgment in Thompson and Houlton and found no significant mitigating factors that would justify leniency, noting it was not persuaded the respondent had reached a turning point or demonstrated clear rehabilitative intent.

Orders Made

  • Sentences imposed for counts 2, 3, 4, 6 and 7 were quashed
  • In lieu, the respondent was sentenced to:
  • Count 2: fixed term of four years imprisonment
  • Count 3: fixed term of six years imprisonment
  • Count 4: fixed term of four years imprisonment
  • Count 6: fixed term of six years imprisonment
  • Count 7: fixed term of nine years imprisonment, with a non-parole period set, to be served concurrently and partly consecutively with the sentences for the remaining counts
  • The overall effect extended the total period of imprisonment and the minimum period before eligibility for release each by two years, resulting in total periods of twelve and eight years respectively, with a four-year potential parole period

Key Takeaways

  • Serious offences listed on a Form 1 must be substantively taken into account when imposing sentence, not simply acknowledged; a failure to do so is an error in the exercise of sentencing discretion.
  • A sentencing judge may consider aggravating conduct, including conduct that escalated in seriousness over the relevant period, provided the offender is not sentenced for a more serious offence than that charged, consistent with the principle from Di Simoni.
  • Structuring all sentences as fully concurrent, where there are multiple serious and distinct offences, may fail the totality principle; the Court of Criminal Appeal confirmed that partial accumulation is sometimes required to reflect the true extent of an offender's criminality.
  • On a Crown appeal, the double jeopardy principle operates to moderate any increase in sentence, recognising the burden on a respondent of facing resentencing, but does not override the need to impose a sentence that properly reflects the offending.
  • The NSW Court of Criminal Appeal has consistently taken a stern approach to sentencing for premeditated armed robbery offences, and sentencing courts are expected to have regard to that established body of authority.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97 (robbery whilst armed, maximum 20 years under s 97(1); 25 years under s 97(2))
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 (guilty plea discount)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against inadequacy of sentence)

Cases:
- Thompson and Houlton (guideline judgment)
- Di Simoni (1981) 147 CLR 383
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59
- Everett v The Queen (1994) 124 ALR 529
- Osenkowski (1982) 20 SASR 212
- Morgan (1993) 70 A Crim R 368
- Readman (1990) 47 A Crim R 181
- Wheeler [2000] NSWCCA 34
- Malone [2000] NSWCCA 156
- Allpass (1994) 73 A Crim R
- R v Moffitt (1990) 20 NSWLR 114
- Various unreported NSWCCA decisions including Broxam, Bishell, McKinnon, Bell, Begnell, Mathews, Mutton, Gardener, Jarrott, Mackenroth, Moran, Kalache, Mark Anthony Rose, Dwight, Morrissey and McDonald