Citation: R v Nasovu; R v Muavou [2021] NSWDC 214
Court: District Court of New South Wales
Date: 28 May 2021
Judge: Noman SC DCJ
Background
Two offenders, both aged 19 at the time of offending and 20 at sentencing, appeared before the District Court for sentence on charges of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). The first offender faced three counts; the second shared two of those counts with him and a third co-offender who was sentenced separately.
The offending occurred across three incidents in April 2020, each targeting either a bottle shop or service station employee working alone in the early hours. The robberies involved knives, an axe, and a hammer, with the offenders wearing face coverings and gloves. Two of the three offences were committed in company of three, with a rideshare vehicle pre-booked for escape. All three incidents were captured on CCTV and the offenders were identified through DNA, recovered clothing, and electronic evidence.
The first offender committed one robbery alone and participated in the two in-company offences, playing a more significant role in each. The second offender's role in both shared offences was limited to holding the store's sliding doors open while his co-offenders entered and took cash and cigarettes.
Legal Issues
- The appropriate sentence for each offender, accounting for their individual roles, criminal histories, and personal circumstances
- Whether drug and alcohol use at the time of the offences mitigated the sentences
- Whether genuine remorse and youthful age warranted leniency
- Whether special circumstances existed to justify reducing the statutory non-parole period ratio
- Parity between the two co-offenders, given their different levels of involvement
- The effect of the first offender's breach of conditional liberty (he was on bail at the time of offending)
Decision
Noman SC DCJ assessed each offence as falling in the lower to mid-range of objective seriousness. The in-company offences were more serious than the solo offence due to the aggravating feature of joint criminality. Across all three incidents, the court noted limited planning (face coverings, gloves, pre-booked rideshare) but also limited sophistication. The amounts stolen were relatively small, but the use of weapons and the vulnerability of sole employees were significant factors.
The first offender's drug and alcohol use before each robbery did not operate to reduce sentence. The court found these were not impulsive or spontaneous acts, and that offending whilst armed and under the influence of methamphetamine, cocaine, alcohol, and Xanax compounded rather than diminished his culpability. The court accepted his expressions of remorse as genuine and acknowledged that aspects of personal disadvantage, including his mother's death and a difficult upbringing, modestly mitigated the otherwise appropriate sentence. His breach of bail was treated as an aggravating factor.
Both offenders were 19 at the time of offending, making rehabilitation a more significant sentencing consideration. The court found special circumstances in each case, noting that both offenders would benefit from an extended period of supervised support upon release, given that this was each offender's first adult custodial term and both had substantial community support available to them. The statutory non-parole period ratio was varied downward to 58% for both offenders. A 25% discount was applied to each indicative sentence to reflect the early guilty pleas entered in the Local Court.
The second offender's lesser role across both shared offences was reflected in lower indicative sentences and a shorter overall term. Parity between the two was maintained by ensuring the sentencing outcomes reflected their different levels of culpability.
Orders Made
Offender Nasovu (three offences):
- Indicative sentences: 2 years 6 months (Hurstville robbery); 3 years (Narwee robbery); 3 years (Penshurst robbery)
- Aggregate sentence: 4 years imprisonment
- Non-parole period: 2 years and 4 months (58% ratio, reflecting special circumstances)
- Sentence commencing 27 October 2020; release to parole 26 February 2023
Offender Muavou (two offences):
- Indicative sentences: 2 years 6 months (Narwee robbery); 2 years 6 months (Penshurst robbery)
- Aggregate sentence: 3 years imprisonment
- Non-parole period: 1 year and 9 months (58% ratio, reflecting special circumstances)
- Sentence commencing 30 July 2020; release to parole 29 April 2022
Key Takeaways
- Drug and alcohol intoxication at the time of armed robbery did not mitigate sentence where the offences were planned rather than impulsive; the District Court found that offending whilst armed and intoxicated evidenced heightened risk rather than reduced culpability.
- A breach of conditional liberty, including bail, is treated as an aggravating factor in sentencing because it reflects an abuse of the freedom granted by the court.
- Where co-offenders play demonstrably different roles in joint criminal enterprise, parity principles require that sentencing outcomes reflect those differences, with the less culpable offender receiving a lesser sentence.
- Special circumstances were established on the basis that both offenders required an extended period of post-release supervision, given their youth, the fact that this was their first adult custodial term, and the availability of community support to assist reintegration.
- Youthful age at the time of offending elevates rehabilitation as a sentencing consideration, though it does not displace the significance of general deterrence and denunciation in cases involving armed robbery.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1