Legal Research
Cases
Bichar v R

Bichar v R

Case [2006] NSWCCA 1 23 January 2006

Criminal Liability

Sentencing

Mitigating Circumstances

Criminal Law

Type to search within this case.

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Bichar v Regina [2006] NSWCCA 1

FILE NUMBER(S):
2005/1860

HEARING DATE(S): 17/01/2006

DECISION DATE: 23/01/2006

PARTIES:
Therry Gillar Bichar v Regina

JUDGMENT OF: Basten JA Howie J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0017

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
V. Lydiard - Crown
A. Francis - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant

CATCHWORDS:
Criminal Law - Sentence - armed robbery - failing to give discount for plea of guilty based upon Henry guideline - whether drug addiction mitigating - whether any less sentence warranted.

LEGISLATION CITED:
Crimes Act 1900 - s 97(1)
Crimes (Sentencing Procedure) Act 1999 s 21A(3)
Criminal Appeal Act 1912 - s 6(3)

DECISION:
Application for leave to appeal against sentence is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1860
BASTEN JA
HOWIE J
HALL J
MONDAY 23 JANUARY 2006

Therry Gillar BICHAR v Regina

Judgment

BASTEN JA: I agree with the orders proposed by Howie J and with his Honour’s reasons.
HOWIE J: The applicant, Therry Bichar, pleaded guilty in the Local Court to a charge of armed robbery contrary to s 97(1) of the Crimes Act. This is an offence for which a maximum penalty of 20 years imprisonment is prescribed. He adhered to his plea of guilty in the District Court and on 4 April 2005 Judge Phegan (the Judge) sentenced him to a non-parole period of 18 months imprisonment with a balance of term of 18 months. The sentence dated from 1 November 2004 and the non-parole period expires on 31 May 2006. The applicant seeks leave to appeal against the severity of that sentence.
The facts were not in dispute and can be stated relatively briefly. On 1 November 2004 the applicant approached the victim, who was standing at Liverpool station waiting for a train, at about 10.45 pm on a Monday evening. The applicant struck up a conversation with the victim while they waited. Eventually the train arrived and the victim boarded it followed by the applicant. The applicant sat immediately behind the victim who had with him a small bag and a computer case. The victim started to use a laptop computer.
As the train approached Sefton station, the applicant put his right arm around the victim’s neck from behind and held a used syringe to the left side of his neck, about 10 cm away from the victim’s body according to the victim’s account. The prisoner said to the victim,
I’m sorry I have to do this but I need to take your laptop and your other bag. If you resist I will stab you with the needle.”
The victim said, “You’re kidding mate” and the applicant said, “No, I’m not. I’ll take your bag and will stab you if you don’t give it to me”. The victim then complied and allowed the applicant to take the bag and his computer.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bichar v R

Details

AGLC: Bichar v R [2006] NSWCCA 1
Case: [2006] NSWCCA 1
Decision Date: 23 January 2006

CaseChat Overview and Summary

The appellant, Bichar, was convicted of armed robbery and sentenced to a term of imprisonment by the County Court. Bichar appealed against the sentence on the basis that the sentencing judge failed to adequately discount the sentence for the plea of guilty in accordance with the guidelines provided by the High Court in R v Henry. The appellant also argued that his drug addiction should have been considered as a mitigating factor, warranting a lesser sentence. The appeal was heard by the Court of Appeal.

The legal issues before the court were whether the sentencing judge had properly applied the Henry guideline to reduce the sentence for the plea of guilty and whether the appellant's drug addiction was a sufficient mitigating factor to warrant a lesser sentence. The court considered the sentencing principles and the relevant authorities on the matter. The appellant contended that his drug addiction should have been considered as a mitigating factor, while the Crown argued that the sentence was appropriate given the gravity of the offence.

The Court of Appeal held that the sentencing judge had not adequately applied the Henry guideline, resulting in an overestimation of the appropriate sentence. The court noted that the appellant's drug addiction was a significant mitigating factor, but it did not warrant a lesser sentence to the extent argued by the appellant. The court found that the appellant's addiction did not absolve him of responsibility for his actions and did not warrant a substantial discount in the sentence. The appeal was dismissed.

The Court of Appeal did not make any further orders beyond dismissing the appeal. The appellant's sentence of imprisonment was upheld, with the court emphasising the importance of properly applying the Henry guideline in sentencing for armed robbery cases.

Orders