Citation: R v Nith Chav [2016] NSWDC 220
Court: District Court of New South Wales
Date: 16 September 2016
Judge: Mahony SC DCJ
Background
The offender was sentenced for two offences arising from events on 18 and 19 November 2013. On the evening of 18 November 2013, he and a co-offender entered a Haymarket restaurant shortly before midnight. The co-offender held a machete to a supervisor's throat, causing a laceration, while the offender held a knife to a customer's neck and took $400 cash from him. Together, they took the contents of two cash registers and fled to a nearby vehicle.
Police traced the vehicle to the home of the offender's de facto partner and placed it under surveillance. In the early hours of 19 November 2013, the offender arrived at the premises driving that vehicle. In the car park, he deliberately reversed the vehicle towards a police constable in an attempt to avoid arrest. Police found stolen money concealed under the driver's seat.
The offender pleaded guilty to the armed robbery charge shortly before trial, and was found guilty of using an offensive instrument to prevent lawful apprehension following a judge-alone trial. A further armed robbery was taken into account on a Form 1 (a procedure allowing additional offences to be considered in sentencing without separate conviction).
Legal Issues
- What sentences were appropriate for armed robbery under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum of 20 years imprisonment?
- What sentence was appropriate for using an offensive instrument (a motor vehicle) to prevent lawful apprehension under s 33B(1)(a) of the Crimes Act 1900 (NSW), carrying a maximum of 12 years imprisonment?
- What weight should be given to the late guilty plea, the offender's personal circumstances, his criminal history, and relevant comparable sentences?
- How should the two sentences be structured and ordered in light of the co-offender's sentence and the principle of parity?
Decision
Mahony SC DCJ characterised the armed robbery as serious, noting it was committed in company, involved the use of knives, caused physical injury to one victim, targeted members of the public in a commercial setting, and was motivated by financial gain. These features were treated as aggravating circumstances under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offender's prior conviction in 2003 for a similar offence was also aggravating, and his late guilty plea attracted only a 10 per cent discount.
The court drew on the guideline judgment in R v Henry (1999) 46 NSWLR 346 as a reference point, but found the present offending more serious than the case contemplated in that guideline, given the offender's age, prior similar conviction, the involvement of a co-offender, and the degree of planning. Regard was also had to the sentence imposed on the co-offender, Mr Tang, to avoid unwarranted disparity.
On the s 33B offence, the court treated the use of a motor vehicle as a weapon in a confined car park as serious offending. His Honour cited R v Hamilton (1993) 66 A Crim R 575 for the proposition that courts must show appropriate support for police officers performing dangerous duties, and emphasised the reckless manner in which the vehicle was reversed towards a constable.
The court also considered the offender's personal background, including his borderline intellectual functioning, history of substance abuse (particularly methamphetamine), childhood exposure to domestic violence, and the psychological evidence indicating major depression. These matters were treated as mitigating factors, though the court noted the offender's elevated risk of re-offending and his treatment needs in the areas of substance abuse and anti-social behaviour.
Orders Made
- Convicted of using an offensive instrument to prevent lawful apprehension (s 33B(1)(a), Crimes Act 1900): fixed term of 3 years imprisonment, commencing 19 November 2013 and expiring 18 November 2016.
- Convicted of armed robbery (s 97(1), Crimes Act 1900): non-parole period of 2 years commencing 19 November 2014 and expiring 18 November 2016, with a balance of term of 2 years commencing 19 November 2016 and expiring 18 November 2018. Total term: 4 years imprisonment.
- Parole eligibility date: 18 November 2016.
- The Form 1 matter (a further armed robbery) was taken into account and certified accordingly.
Key Takeaways
- A motor vehicle reversed deliberately towards a police officer in a confined car park constitutes use of an "offensive instrument" within the meaning of s 33B(1)(a) of the Crimes Act 1900 (NSW), even where the conduct is characterised as reckless rather than intentionally injurious.
- The District Court confirmed that offending more serious than the baseline scenario in the Henry guideline judgment warrants a heavier sentence, particularly where a prior similar conviction, the presence of co-offenders, and financial planning are established.
- Under the parity principle, co-offenders sentenced for the same events should not receive sentences that are unjustifiably disparate, and the court had regard to Mr Tang's sentence when structuring the present orders.
- Personal mitigating factors, including borderline intellectual functioning, childhood disadvantage, and psychological illness, were weighed in the offender's favour but did not displace the primacy of general deterrence and denunciation where serious violence against members of the public and police is involved.
- A late guilty plea entered after committal for trial but before jury empanelment attracted a discount of only 10 per cent, consistent with the position acknowledged by the offender's own counsel.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33B, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- R v Hamilton (1993) 66 A Crim R 575 (use of offensive instrument to prevent arrest)
- Mun v R [2015] NSWCCA 234
- R v Caldwell [2016] NSWCCA 55