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District Court 12 December 2007

R v Apisai BAVADRA

[2007] NSWDC 390

Assault & violenceDrugsTheft & property
CRIMINAL LAW SENTENCE ARMED ROBBERY COMMITTED IN COMPANY ACTUAL VIOLENCE OFFENCE INVOLVED A DEGREE OF PLANNING

Citation: R v Apisai Bavadra [2007] NSWDC 390
Court: District Court of New South Wales
Date: 12 December 2007
Judge(s): Cogswell SC DCJ

Background

The offender pleaded guilty to armed robbery arising from an incident on 12 February 2007 in St Marys. He and an acquaintance had arranged by phone to rob a man known to deal in drugs. The offender forced his way into the victim's unit armed with a large hunting knife, demanded money and drugs, and assaulted the victim three times during the course of the robbery. A female companion of the victim was also present throughout and had her handbag taken.

The offender was arrested approximately one month later and initially denied involvement. After being shown a co-offender's police statement, he cooperated fully and provided a complete record of interview. At the time of arrest, police also found a small quantity of cannabis on his person, which gave rise to a separate drug possession charge.

The key question at sentencing was how the objective seriousness of this particular armed robbery, weighed against the offender's personal circumstances, aligned with the Court of Criminal Appeal's guideline judgment for that class of offence.

  • How serious was this armed robbery when assessed against the features of the offence, including the use of a weapon, commission in company, actual violence, and a degree of planning?
  • What weight should be given to the offender's personal circumstances, including his early guilty plea, long-standing drug addiction, and prior criminal record?
  • How did the offence sit within the parameters set by the guideline judgment in R v Henry (1999) 46 NSWLR 346?
  • What sentence, including non-parole period, was appropriate having regard to all relevant factors?
  • Should the drug possession charge be taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999?

Decision

The court identified several factors that elevated the objective seriousness of the offence. The robbery was committed in company, which makes the experience worse for a victim than a solo offender. Actual violence was used: the offender punched the victim in the face and struck him in the head with the hilt of the knife on three separate occasions during the robbery. The offence also involved some degree of planning, having been arranged by phone before the pair went to the victim's unit. The court treated actual violence not as a statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, but as demonstrating the manner in which the robbery was carried out.

The female victim's fear for her life was noted and taken into account, though the court found the evidence was insufficient to characterise her response as substantial emotional harm in either an aggravating or mitigating sense. The offender's prior criminal record, which included a previous armed robbery for which he had served imprisonment, prevented him from claiming any leniency on the basis of good character.

In the offender's favour, the court gave weight to his early guilty plea, which was acknowledged by the prosecution as having been made at the earliest opportunity. His long-standing heroin addiction, dating from age 18, and his drug-affected state at the time of the offence were also taken into account. The court was satisfied the drug use contributed to the offending, though addiction does not excuse criminal behaviour. The drug possession charge was formally taken into account under s 32.

Having regard to the Henry guideline and all relevant factors, the court imposed a total sentence of five years and six months, backdated to the date of arrest. The court also made recommendations to the Parole Authority concerning supervision conditions and rehabilitation programmes upon any release on parole.

Orders Made

  • Total sentence of five years and six months for armed robbery, commencing 11 March 2007 and expiring 10 September 2012.
  • Non-parole period of two years and six months, commencing 11 March 2007 and expiring 10 September 2009.
  • Balance of term of three years, commencing 11 September 2009 and expiring 10 September 2012.
  • Drug possession charge taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999.
  • Recommendation to the Parole Authority that, upon consideration for release, supervision conditions address: alcohol and other drug counselling; psychological counselling to assist community reintegration; referral to a training and education programme; and referral to the Pacific Islander Programme at the Mount Druitt District Office of the Probation and Parole Service.
  • Pre-sentence report directed to accompany the offender into the Corrective Services system.

Key Takeaways

  • Armed robbery committed in company, with actual violence and a degree of planning, will be assessed as significantly more serious than a spontaneous or solo offence, even where the offender is ultimately sentenced only for the armed robbery and not a more serious charge.
  • The District Court distinguished between treating actual violence as a statutory aggravating factor under s 21A and treating it as evidence of the manner in which an offence was committed. Both approaches result in the offence being viewed more seriously, but the court's characterisation matters for sentencing methodology.
  • A prior conviction for the same offence removes any prospect of leniency based on good character, and a sentencing court will note it as a meaningful indicator of risk.
  • An early guilty plea, confirmed by the prosecution, remained a significant mitigating factor even for an offender with a poor criminal record.
  • Where a separate, less serious charge arises from the same circumstances as the principal offence, taking it into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 is a recognised mechanism for disposing of the matter without imposing additional formal punishment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32
- Drug Misuse and Trafficking Act 1985 (NSW)
- Summary Offences Act 1988 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment for armed robbery)