Director of Public Prosecutions v Nawabalavu
[2025] VCC 1563
•28 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-25-00226
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARMANIA NAWABALAVU |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2025 and 18 September 2025 |
DATE OF SENTENCE: | 28 October 2025 |
CASE MAY BE CITED AS: | DPP v Nawabalavu |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1563 |
REASONS FOR SENTENCE
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Subject: CRIMINAL Law - Sentence
Catchwords: Plea of Guilty – Aggravated Carjacking – Recklessly Cause Injury – Theft – Obtaining Property by Deception
Legislation Cited: Sentencing Act (Vic) 1991
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 269 – Buckley v The Queen [2022] VSCA 138 - Xian v The King [2024] VSCA 227.
Sentence:TES 3 Years imprisonment, non-parole period 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Fedyszyn | Office of Public Prosecutions |
For the Accused | Ms O. Thompson |
HIS HONOUR:
1Armania Nawabalavu, you have pleaded guilty to aggravated carjacking and a relevant summary offence of unlawful assault.
2You have no criminal record in respect of this indictment.
3You were on bail at the time of your commission of this offence and have subsequently been dealt with for a charge of armed robbery committed in company and a number of relevant summary offences. You were sentenced in this Court on 21 November last year to 18 months' imprisonment with a non-parole period of 12 months.
4Due to being on remand for the matter I am now sentencing you for, you have served the entire head sentence of the previous sentence. That sentence expired on 25 March this year.
5The offence of aggravated carjacking, to which you have pleaded guilty, is a Category 1 offence. Accordingly, it has a mandatory minimum non-parole period of three years unless a special reason is made out pursuant to s10A.
6Aggravated carjacking carries a maximum penalty of 25 years' imprisonment.
Circumstances of Offending
7You were 19 at the time of the commission of the offences before me. Your co-offender, Hayden Leese, was 18 at the time of the offending. Your co-offender, Romesh Perera, was 38 at the time of the offending. The circumstances of your offending are set out in the Summary of Prosecution Opening dated 17 April 2025 which forms part of these Reasons for Sentence.
8On 12 May 2024, your co-offender Hayden Leese called the Punjab Cab Network to book a cab and got put through to cab driver and victim, Mr Singh. It was arranged that Leese, Perera, yourself and two other minors, would be picked up from Leggatt Street, Melton South, to be taken to the nearest train station.
9There was some sort of plan to either leave the cab without paying after your journey or to hijack the vehicle. Despite your admissions to Dr Coat in the Forensicare report as to planning, I cannot be certain to the requisite standard as to the extent of your complicity in any plan.
10When your victim arrived at your location, you and Mr Perera hid in bushes, you were in company with two other minors who got in the back of the vehicle, co-offender Leese got in the front passenger seat. Co-offender Perera then came out of the bushes. Immediately after sitting down, Leese pulled a large machete from his pants, brandishing it and waving it towards your victim. He was yelling, 'Get the fuck out, get the fuck out.' He stabbed Mr Singh on the left side of his stomach, leg and upper left arm, with the machete bending and not puncturing his clothing.
11Your victim tried to cover himself and Leese hit him on the back of the head with the machete causing a laceration. You are not charged with that assault or causing that injury.
12Perera had a small pair of scissors and showed them to Mr Singh as Leese tried to force the victim out of the cab. While Singh was being attacked and accosted by Leese and Perrera, you emerged from where you had been hiding behind a tree and ran to the driver's door. You punched your victim hard to the face twice and then you ran off again.
13Your victim managed to undo his seatbelt and get out. Leese jumped into the driver's seat. Perera jumped into the passenger seat. You then got into the rear seat. Mr Singh tried to open the door again. Leese slammed it shut. Mr Singh kept hanging on and Leese threatened to kill him if he would not let go. You all drove off and Mr Singh raised the alarm.
14An ambulance attended and Mr Singh was conveyed to Footscray Hospital where his wounds were treated. His injuries were photographed and exhibited on the plea. He suffered a five-centimetre horizontal laceration on his head and lost about 100 millilitres of blood. He received six staples to close his head. He was discharged later that day.
15I state again, you are not being sentenced or that injury.
16CCTV footage of the incident was also captured and tendered on the plea, and I viewed that footage. The footage revealed a very violent and shocking incident. You were complicit throughout.
17You were arrested on 27 June last year. You gave a 'no comment' interview. You have remained in custody since that time.
Objective gravity
18Aggravated carjacking is a Category 1 offence and carries a three-year minimum non-parole period unless a special reason exists. The maximum penalty, as I have stated, is 25 years' imprisonment. The objective gravity of your offending is reflected in those strict and severe provisions. These provisions reflect the community's denunciation and concern with offending such as yours.
19Your commission of this offence is a serious example of the offence of aggravated carjacking, and several serious aspects of the offending include:
· the manner in which your victim was lured to the vicinity,
· the carjacking was committed in company at night,
· and the brandishing and use of the machete to inflict injury was a particularly terrifying aspect of the offence.
20The role you played was very significantly less than co-offender Leese, and less than that of Perrera also. It is noteworthy that Leese also played a leading role apparently in the matter for which you have served an 18-month sentence.
21The impact upon the victim, Mr Singh, will be lasting.
Personal Circumstances
22Turning to your personal circumstances.
23You are now 20 years of age. You are the eldest of five siblings.
24You completed primary school in Fiji and came to Australia when you were 14. Fijian is your first language, English your second. Your attendance at school in Fiji was intermittent, and I refer to one of the reports of Aaron Cunningham which sets out your truancy from school whilst in Fiji.
25Whilst growing up you were exposed to family violence and your father’s maladaptive coping mechanisms including physical violence and alcohol abuse. Your parents separated when you were 10.
26You stayed with your father initially who was drinking daily, but you then went to live with your grandmother until you moved abruptly to Melbourne at 14. The separation from your nurturing and caring grandmother, combined with the difficulty in transition, has impacted your development and functioning.
27You came to Melbourne with your father, younger siblings and your stepmother.
28The move to the Australian school system was overwhelming for you. You attended Bayside Secondary College in Melbourne. You left at the end of Year 11.
29After leaving school you had several short-term positions and attempts at apprenticeships. You were not working at the time of the offending.
30In your case I ordered a pre-sentence Forensicare report. In the report of Dr Coat at paragraph 31 it is stated that:
'Mr Nawabalavu explained that he was unemployed, living at home and spending time with antisocial peers in the lead-up to the index offending. He added that he had been using ice and had been awake for days prior to the event due to the impact of the substance, resulting in deficiencies in his ability to understand and control his emotions and behaviour.'
31I accept you have a history of substance abuse including Xanax, alcohol, cannabis and cocaine and that at the time of your commission of the offences before me you were using methylamphetamine and GHB.
32Alongside the Forensicare report from Dr Coat, I received reports from Dr Aaron Cunningham.
33The expert material before me leads me to conclude that you are a particularly immature young man, that is your immaturity is particularly noteworthy from a psychological perspective, as Dr Cunningham emphasises, and I also accept that you have replicated the maladaptive coping methods of your father.
34I refer to the Forensicare report from paragraph [30], and also [32] to [34].
35Dr Coat writes:
'Based on his account, Mr Nawabalavu experienced several adverse childhood events, family violence, parental separation, abrupt removal from his grandmother's care, which were likely extremely distressing for him. His father modelled and normalised the use of maladaptive coping mechanisms which Mr Nawabalavu appears to have replicated in his own life.'
36I pause to indicate that I accept those findings, and further than them being in Mr Nawabalavu's account, in Dr Cunningham's report, based on his conversation with Mr Nawabalavu's stepmother, there is some corroboration of those experiences.
37Coming back to paragraph 30 from Dr Coat:
'As Mr Nawabalavu grew older he recalled getting into fights with children at school and using cannabis daily from mid adolescence onwards, further normalising the use of maladaptive coping mechanisms to solve problems and get his needs met. Broadly, Mr Nawabalavu seemed to lack safe and consistent attachment figures given his removal from his grandmother and exposure to violence via his father. This may have contributed to a non-discerning approach to seeking out a sense of belonging, leading to involvement in a criminal gang.'
38Ms Thompson, of course, relies upon that opinion of Dr Coat and I accept that opinion of Dr Coat.
39Dr Coat goes on at paragraph [32]:
'Mr Nawabalavu impressed as having a very limited understanding of his internal and emotional world and had few mechanisms to manage uncomfortable emotions such as paranoia, worry and anger.'
40At [33]:
'It appears as though Mr Nawabalavu's upbringing is related to his offending in that his own victimisation and exposure to violence led to the normalisation of this behaviour. Mr Nawabalavu's early displacement and lack of consistent family community ties mean that he may be more inclined to participate in gang-related activities as a method of feeling safe and connected with others.'
41And Dr Cunningham perhaps adds to that in the sense that the immaturity that Dr Cunningham emphasises may also be a positive factor if you were in a prosocial workplace or employment where you would be susceptible to positive influences rather than negative influences.
42In his June 2025 report, Dr Cunningham writes:
'In my opinion Mr Nawabalavu presents as psychologically and emotionally immature. In my opinion Mr Nawabalavu presented with limited insight into the seriousness of his offence behaviour and the consequences of his behaviour to the victim. In my opinion this is consistent with the background of abuse, neglect and deprivation reported by Mr Nawabalavu's stepmother.
In my opinion Mr Nawabalavu presents with significant impairment in moral, emotional and psychological development. In my opinion these impairments contributed to his offence behaviour and decision to associate with antisocial peers and abuse drugs. Despite the seriousness of his current offences and history of incarceration, Mr Nawabalavu did not present as fully comprehending the gravity of his situation and the future trajectory of his current life choices.'
43Ms Thompson relies upon the application of the Bugmy principle in a specific sense in your case and relies in particular on those opinions of Dr Coat at paragraph 30, and also that of Dr Cunningham to which I have just referred.
44I accept that Bugmy has application in the specific sense in your case.
45A significant aspect of your plea before me is the fact that your visa has been cancelled. You are not an Australian citizen. There is a very real risk that you will be deported when your sentence has expired. In fact, it is likely you will be deported.
46You do not have much familial support in Fiji and thus the principles enunciated in Guden have application in your case.
47As I understand it, your visa has already been cancelled, no doubt due to the 18-month sentence you received last November, and, as I say, your counsel has relied upon that matter, it is relevant in two ways: the expectation of deportation upon release increases the burden of imprisonment, and the potential loss of opportunity to remain in Australia where family and loved ones live would be an additional punishing consequence of the offending. Both those matters will weigh particularly heavily upon you during the term of your sentence.
48Ms Thompson submits that a combination of circumstances amount to substantial and compelling reasons that are also exceptional and rare which justify a departure from the mandatory non-parole period pursuant to s10A.
49In brief, Ms Thompson relies upon:
·The specific Bugmy mitigation flowing from childhood experiences and poor adjustment upon relocation.
·Significant immaturity in the context of consideration of the mitigatory effect of youth.
·The application of Guden principles.
·Plea of guilty.
·And totality and delay.
50The prosecution submitted the test is not met. The prosecution provided helpful submissions dated 24 June and rely on Buckley v The Queen [2022] VSCA 138 and Xian v The King [2024] VSCA 227.
51I have also had regard to a Court of Appeal decision handed down yesterday; DPP v Raux; and DPP v Rawiri [2025] VSCA 258.
52As well as addressing me on the operation of the provisions in the case law, the prosecution placed particular importance upon the weight to be given to general deterrence in the exercise and the corresponding reduction in weight to be given to personal circumstances.
53Quite rightly, the prosecution emphasised particular aspects of the offending, the use of a frightening weapon and the level of violence.
54I must make an evaluative assessment as to whether, in your case, the test is met. When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare in this case, it is necessary to have regard to the sentencing considerations applicable to cases involving aggravated carjacking, since in order to justify not imposing the mandatory minimum term of imprisonment, circumstances would need to surmount those principles. This involves an assessment of the gravity of your commission of this serious offence, including your role within it.
55In determining whether there are substantial and compelling circumstances that are exceptional and rare, and that justify not imposing the mandatory minimum, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1) of the Sentencing Act. I must give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence. I must not have regard to an early guilty plea, prospects of rehabilitation or parity with the sentences imposed upon your co-offenders.
56In determining whether there are substantial and compelling circumstances, I must have regard to the intention of Parliament that a sentence of imprisonment should ordinarily be made and that a non-parole period of three years, at least three years should ordinarily be fixed, unless the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
57I have given careful consideration to all of the features of your case in my evaluative assessment of whether you meet the test for a special reason for this offence. The combination of your youth, your lack of prior convictions, your particular immaturity, specific Bugmy mitigation, the likelihood of deportation, your plea of guilty and totality, in combination provide substantial and compelling reasons that justify not imposing the mandatory minimum in your case. Considered in combination, the mitigatory effect of each part is amplified beyond the sum of the parts.
58Your experience in custody is also difficult due to your immaturity and the fact that you have had no visitors, as I am informed.
59There is a strong public interest in rehabilitating young offenders. Curial responses that advance rehabilitation serve to protect the community also.
60However, these features of your case that I have listed do not amount to circumstances that are also 'exceptional and rare' in the sense that they are outside of the 'run of the mill.'
61However, one feature of your case that has troubled me from the outset does amount to something that is 'exceptional and rare', and that is the effects of delay.
62One consequence of delay in your case is that you have served the entirety of the 18-month sentence imposed by Judge Bayles and have only been accumulating pre-sentence detention on this matter since 25 March.
63Another consequence of delay is that pursuant to s10AD of the Sentencing Act, I must set a non-parole period under s11 of at least three years unless a special reason exists.
64What that means from a totality perspective is that in respect of your offending from May 2023, for which you have served sentence, and the offences before me committed in May 2024, the mandatory non-parole period would see you serving approximately four and a half years in respect of both matters before you are eligible for parole.
65Parliament has provided for mitigation of the effect of the mandatory minimum non-parole period where an offender is already undergoing sentence, if the non-parole period is unexpired. Had you been dealt with for this matter prior to the expiry of your non-parole period imposed last November, I would not be considering the imposition of a non-parole period pursuant to s11. That is another consequence of delay.
66Section 10AD provides that I must set a mandatory non-parole period in accordance with s11. The words are clear and unambiguous.
67There is nothing in the wording of s10AD that establishes that a mandatory three-year non-parole period must be set when imposing a new non-parole period pursuant to s14.[1]
[1]See my reasoning in Spokes at [ ]-[ ].
68There are good reasons why Parliament would intend this to be so. The application of the totality principle for one, the injustice that attaches to your circumstances if the entire 18-month sentence is to be followed by a three- year non-parole period for a then 18, 19 and now 20-year-old offender with no prior convictions who faces deportation, for another.
69Delay has robbed you of my setting a new non-parole period pursuant to s14.
70In Farmer the Court of Appeal considered the 10A test but in the context of s 5(2H)(e).
71The court noted that imposition of jail or Youth Justice Centre detention for youth in some cases may be harsh and work a 'serious injustice.' The court stated: ‘To a degree paragraph (2H)(e) guards against the risk of injustice but the stringency of the test cannot be avoided.'[2]
[2]Farmer v The Queen [2020] VSCA 140 [51]-[56].
72The injustice flowing from the imposition of the mandatory non-parole period in all of the circumstances of your case attracts the description of 'exceptional and rare' on my assessment.
73Nevertheless, having reached this conclusion, general deterrence, specific deterrence and denunciation remain very significant sentencing factors in a case such as this and the sentence I impose will reflect those factors.
74Having found the exception, I am now bound to consider your early plea of guilty, your prospects of rehabilitation and parity.
75Your role was considerably less than Leese and marginally less than Perrera. Leese was 18 at the time of the offence, younger than you, but he had prior matters.
76Leese had substantially more significant Bugmy mitigation available to him than you. He was assessed as suitable for Youth Justice Centre detention. He had been on supervised bail for a period of time.
77Perrera also had significant mitigation available to him that is not available to you on my assessment.
78I have done my best in arriving at sentence to have due regard to issues of parity and disparity. I sentence you as follows, Mr Nawabalavu:
Sentence
79In relation to Charge 1, aggravated burglary, you are sentenced to three years' imprisonment.
80In relation to the charge of unlawful assault, one month imprisonment.
81The total effective sentence is three years' imprisonment.
82I set a non-parole period of 24 months.
Pre-sentence Detention
83Pre-sentence detention I declare in relation to this matter - is it 202 days, Ms Thompson.
84MS THOMPSON: Yes, Your Honour.
85HIS HONOUR: I declare 202 days pre-sentence detention.
86Pursuant to s6AAA, were it not for your pleas of guilty I would sentence you to three years and 10 months' imprisonment with a non-parole period of three years.
87Were there any other orders required. No, there were no special orders, were there.
88That concludes the matter, we will adjourn the court.
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