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District Court 20 June 2008

R v Lee BOBROVIZKI

[2008] NSWDC 164

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE ROBBERY AFFRAY SERIOUS BREACH OF THE PEACE

Citation: R v Lee Bobrovizki [2008] NSWDC 164
Court: District Court of New South Wales
Date: 20 June 2008
Judge(s): Berman SC DCJ

Background

The offender, an 18-year-old male, attended a takeaway food store one evening. After a brief verbal exchange with another patron, he summoned associates from outside, who then punched that patron unconscious. The victim fell to the ground, visibly bleeding, and remained unconscious throughout.

The offender then stole the unconscious victim's wallet. He later told police his motivation was to buy more food. He was arrested shortly afterwards. When interviewed, he expressed no remorse and was openly contemptuous toward police.

The offender appeared for sentencing on a charge of robbery, with an associated offence of affray taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at the same time without separate conviction or sentence).

  • What sentence appropriately reflects the objective seriousness of a robbery committed against an unconscious and helpless victim?
  • What weight should be given to mitigating factors, including the offender's youth, diagnosis of ADHD, expressed remorse, and prospects of rehabilitation?
  • Was the offence properly characterised as below the mid-range of objective seriousness, as the Crown submitted?
  • Whether intoxication could operate as a mitigating factor.
  • Whether periodic detention was an appropriate form of imprisonment given the offender's age.

Decision

Berman SC DCJ rejected the Crown's submission that the offence fell below the mid-range of seriousness. The judge found that stealing from a visibly bleeding, unconscious victim, in a public setting, in the aftermath of violence the offender had deliberately orchestrated, represented a high level of objective gravity. The court also noted that the incident constituted a significant breach of the peace, frightening those present at the scene.

The court accepted, on a limited basis, that the offender had shown remorse, though it noted he declined to give evidence himself and relied instead on a letter and character evidence from his father. The judge accepted that prospects for rehabilitation were reasonable, though expressly declined to characterise them as good. The offender's ADHD diagnosis, completion of his Higher School Certificate, employment, and engagement with a psychologist were each acknowledged.

Intoxication was not treated as a mitigating factor. The judge observed that the law requires people to remain non-violent whether sober or drunk, and that alcohol might explain certain conduct but could not excuse it.

The court determined that a period of imprisonment was necessary to reflect the objective gravity of the conduct. However, solely on account of the offender's age, the sentence was ordered to be served by way of periodic detention rather than full-time custody. The judge was explicit that any further offending would, in his view, result in full-time imprisonment.

Orders Made

  • The offender sentenced to imprisonment with a non-parole period of 12 months and a head sentence of 18 months.
  • The sentence to be served by way of periodic detention.
  • The offender directed to report to Parramatta Periodic Detention Centre at 8:30am on 28 June 2008 to commence the sentence.

Key Takeaways

  • The District Court rejected a submission that the opportunistic nature of a robbery, without more, brings the offence below the mid-range of seriousness; the circumstances surrounding the act of stealing are central to the objective assessment.
  • Stealing from an unconscious and helpless victim, in the immediate aftermath of violence the offender orchestrated, was treated as conduct of high objective gravity regardless of the relatively modest value of the property taken.
  • Intoxication at the time of an offence does not operate as a mitigating factor in sentencing; it may contextualise behaviour but cannot excuse it.
  • Where an offender declines to give evidence of remorse in the witness box, relying instead on written material and third-party testimony, a court may still accept remorse, though the weight given to it may be affected.
  • Youth was the sole reason periodic detention was substituted for full-time custody, with the court explicitly warning that future offending would not attract the same concession.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(3)(h) (reasonable prospects of rehabilitation as a mitigating factor)

Cases cited: None cited in the judgment.