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Court of Criminal Appeal 26 April 2001

REGINA v BAVIN

[2001] NSWCCA 167

Assault & violenceTheft & property
CRIMINAL LAW ARMED ROBBERY KIDNAPPING CROWN APPEAL ARMED ROBBERY WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: Regina v Bavin [2001] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 26 April 2001
Judge(s): Spigelman CJ, Wood CJ at CL, Greg James J

Background

The appellant was convicted in the District Court of armed robbery and kidnapping arising from an incident in Darlinghurst in March 1999. The Crown's case was that the appellant and a co-offender, Pomana, arranged for Pomana to hold up the complainant at gunpoint, steal his Mercedes Benz, and take him on a drive to Burwood before abandoning him. The complainant's wallet, phone, watch, and bank cards were also taken during the ordeal.

The appellant's defence was that the whole episode was staged: a pre-arranged insurance scam in which the complainant was a willing participant who wanted to fraudulently claim on his insurer. The appellant said he was merely intended to be a witness to a fake robbery. The complainant denied any such arrangement.

The District Court jury rejected the defence version and convicted on both counts. Bellear DCJ sentenced the appellant to three years imprisonment with a two-year non-parole period for the armed robbery, and a fixed term of twelve months for the kidnapping. The Crown subsequently filed a notice of appeal against the alleged inadequacy of sentence, and both the conviction appeal and the Crown sentence appeal were heard together in the Court of Criminal Appeal.

  • Whether the convictions for armed robbery and kidnapping were unreasonable, unsupported by the evidence, or attended by a miscarriage of justice
  • Whether the sentences imposed by Bellear DCJ were manifestly inadequate, warranting Crown appeal intervention
  • Whether parity between the appellant's sentence and the co-offender Pomana's sentence was relevant to the Crown appeal
  • Whether the Crown's own conduct during Pomana's sentencing proceedings was a relevant consideration
  • Whether the Court should exercise its residual discretion to decline to intervene, even if the sentence was manifestly inadequate

Decision

Conviction appeal: The Court dismissed the appeal against conviction. No error in the trial judge's summing up was identified, and the competing versions of events, the genuine armed robbery versus the staged insurance scam, were properly left to the jury. The Court found no basis to conclude the convictions were unreasonable or unsupported by the evidence.

Crown appeal, manifest inadequacy: The Court accepted that the sentence imposed on the appellant appeared, on its face, to be manifestly inadequate for offences of this seriousness. The Crown pressed this point by reference to sentencing principles and the objective gravity of the conduct involved.

Parity and the co-offender's position: The co-offender Pomana had pleaded guilty and received a significantly lighter effective custodial period, approximately thirteen months and ten days, plus 300 hours of community service. Critically, the Crown itself had made submissions during Pomana's sentencing proceedings that contributed to what the Court regarded as an error in that sentence. The Court noted that the circumstances surrounding those submissions and any negotiations were not fully before it, and that Pomana's own appeal had not yet been heard.

Discretion not to intervene: Despite finding the sentence arguably inadequate, the Court exercised its residual discretion to dismiss the Crown appeal. Two special circumstances drove that conclusion: the Crown's own direct role in leading the sentencing judge into error in Pomana's proceedings, and the fact that Pomana's appeal remained unresolved with no indication of when it would be heard. The Court also observed that the appellant would serve two years, compared to Pomana's effective thirteen months plus community service, which the Court regarded as adequately reflecting their comparative culpability without creating a justiciable grievance of disparity.

Orders Made

  • Appeal against conviction dismissed
  • Orders of Bellear DCJ varied to add a direction that the appellant be released at the expiry of the non-parole period of two years
  • Crown appeal against sentence dismissed

Key Takeaways

  • A residual discretion exists to decline intervention on a Crown sentence appeal, even where manifest inadequacy may be established, when special circumstances justify that course.
  • The Crown's own conduct in a co-offender's sentencing proceedings can constitute a special circumstance weighing against the Crown obtaining relief on a related sentence appeal.
  • Parity between co-offenders remains a live consideration in Crown appeals, and an unresolved appeal by the co-offender may be a relevant factor in deciding whether to exercise the discretion not to intervene.
  • In dismissing the conviction appeal, the Court confirmed that where two competing factual narratives are properly left to the jury and the summing up is unimpeachable, the appellate court will not lightly disturb the verdict.
  • A technical omission by the sentencing judge, here the failure to expressly direct release at the expiry of the non-parole period, was corrected by variation of the orders on appeal, without disturbing the substantive sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 90A, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Alpass (1994) 72 A Crim R 561
- Fleming v The Queen (1998) 197 CLR 250
- Gipp v The Queen (1998) 194 CLR 106
- Jones v The Queen (1997) 191 CLR 487
- M v The Queen (1994) 181 CLR 487
- R v Diamond (NSWCCA, 18 February 1993, unreported)
- R v Henry (1999) 46 NSWLR 346
- R v Steele (NSWCCA, 17 April 1997, unreported)