R v Apisai Bavadra

[2007] NSWDC 390

CITATION:	R v Apisai BAVADRA [2007] NSWDC 390
JUDGMENT DATE:	12 December 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non parole period of 2 years and 6 months, balance of the term of 3 years.
CATCHWORDS:	CRIMINAL LAW - sentence - armed robbery - committed in company - actual violence - offence involved a degree of planning - form 1 offence - Henry guideline - prior criminal record - plea of guilty at earliest opportunity - under the influence of drugs at the time the offence was committed - long-standing drug addiction
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 21A, s 32 Drug Misuse and Trafficking Act 1985 Summary Offences Act 1988
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	Regina Apisai Bavadra
FILE NUMBER(S):	07/21/1126
SOLICITORS:	Ms Graham for the Director of Public Prosecutions Mr Willis for Mr Bavadra

JUDGMENT

1. Today I am sentencing Mr Apisai Bavadra for an armed robbery. One of the principal issues is how much the seriousness of this armed robbery, weighed against Mr Bavadra’s personal circumstances, coincide with the guideline judgment issued by the Court of Criminal Appeal for armed robberies.

2. What happened in this armed robbery is this. It occurred on 12 February 2007 at about 6.30 at night. Before then Mr Bavadra had been contacted by a man called Troy Robertson, an acquaintance of his. Mr Robertson told Mr Bavadra that he, Mr Robertson, needed some money and knew of a person who deals in drugs. Mr Robertson suggested that he and Mr Bavadra rob the man and take some money and drugs. Mr Bavadra agreed.

3. They both went to the man’s house which was a unit in Putland Street, St Marys. As it happened the man was not alone. It did turn out that the man possessed drugs in the unit. He had some amphetamines and cannabis but he was accompanied in the unit by a female friend. She was watching television and the man was washing up. They knocked on the door. The man answered the door. Mr Bavadra, when the door was opened, pushed himself in carrying a large hunting knife. The person who knocked on the door was Troy Robertson. He was known to the man in the house who, before opening the door, looked through the peephole. It was when he unlocked the door that Mr Bavadra pushed through the door armed with the knife.

4. Mr Bavadra said “Get on the fuckin’ lounge” to the man and said “Where’s the fuckin’ money and gear?”. Mr Bavadra pushed the man onto the lounge chair and started to go through items in the house. Together he and Mr Robertson found cannabis and amphetamines.

5. Mr Bavadra punched the man in the face, causing him to fall over on to the lounge. They rummaged through other rooms. They found two thousand dollars and a diamond ring. They brought the man back to the lounge room and took his wallet and house keys.

6. When Troy Robertson said “Let’s get out of here”, Mr Bavadra hit the man in the side of the head with the hilt of the hunting knife. He also took the handbag of the young woman who was at the unit.

7. About a month later, on 10 March 2007, police attended Mr Bavadra’s house. He was arrested for the crime. At the time they located about one and a half grams of cannabis in his pocket.

8. The presence of that cannabis formed the basis of a charge of possessing a prohibited drug under the Drug Misuse and Trafficking Act 1985. I have been asked by Mr Bavadra to take that offence into account under s32 of the Crimes (Sentencing Procedure) Act 1999 when I am sentencing him for the armed robbery and I do take that into account.

9. When interviewed Mr Bavadra denied the allegations. He was however shown an interview, or a transcript of an interview which Troy Robertson gave to the police. He took exception to what he read because he did not regard Mr Robertson’s account as true. He then co-operated fully with the police and gave a full record of interview.

10. I have heard evidence from Mr Bavadra who was called by Mr Willis who appeared for him. I have also seen evidence in the form of documents tendered by Ms Graham for the Crown, which became exhibits A and B, and a document tendered by Mr Willis, exhibit 1. I do not propose to review that evidence but I make the following findings.

11. First I make findings about how serious this offence was. The first thing to be said is that it was an armed robbery. In a sense Mr Bavadra was lucky not to be charged with something far more serious. Nevertheless it is important that I make it clear that I am sentencing him only for an armed robbery. Parliament nevertheless regards that as a serious offence and it attaches a maximum sentence of twenty years imprisonment to it. That is how serious an offence it is regarded.

12. The next factor is that the armed robbery was not committed alone by Mr Bavadra. It was committed in company. Being robbed by two men is a worse experience than being robbed by one.

13. The third thing I take into account, although I do it in a particular way, is the fact that the offence involved actual violence. I do not take that into account as an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act. I take it into account as demonstrating the way in which Mr Bavadra performed this particular robbery. A robbery can be taking somebody’s belongings accompanied by a threat or it can be taking somebody’s belongings accompanied by actual violence. An offence involving actual violence would be regarded as more serious than one involving no more than a threat. This is a case which involved actual violence. Mr Bavadra assaulted the victim three times during the course of robbing him.

14. The next thing I take into account is the probably obvious reaction of the young woman who was in the unit. Nevertheless it is a reaction which needs to be recorded. She said in her statement that she felt extremely scared. In fact she felt scared for her life. She thought that Mr Bavadra was going to pull the knife on her. She just wanted the male victim to hand everything to them so that they would leave. I do not regard that response as emotional harm which was substantial. In saying that I do not diminish it at all. A crime such as this may well have a long-term impact on a victim, but I do not have before me any evidence apart from the statement which I have referred to. But nor do I regard the response of the victim as a mitigating factor. I could do that if I thought her response amounted to emotional harm which was not substantial. In this regard I adopt Ms Graham’s submission and note the harm. In addition I take it into account, but its impact is neither mitigating for Mr Bavadra or aggravating for him. It is a consequence of his crime which needs to be noted and taken into account.

15. The next thing to be said about the offence is that it was not spontaneous or opportunistic, there was a degree of planning. The planning may have been relatively short-term but nevertheless it was arranged by phone and the detail of how the offence was going to be committed had been worked out in advance. Mr Bavadra had armed himself and there was some degree of planning.

16. The next thing to be said, although it does not aggravate the offence, is that Mr Bavadra does not have a good criminal record. A person without a criminal record at all may point to that and claim some leniency. A judge would be inclined to discount a sentence where the offender comes before the judge without any criminal record. But Mr Bavadra comes before me with a criminal record that involves offences such as stealing from the person, break, enter and steal, assault occasioning actual bodily harm and, significantly, a previous offence for armed robbery. For that offence he was sentenced by a judge of this court to imprisonment for three years with a non-parole period of eighteen months. That sentence was imposed on 1 August 2003.

17. They are all the circumstances which I take into account in assessing the seriousness of the crime committed by Mr Bavadra in this case.

18. I turn now to consider his own personal circumstances. To his credit he pleaded guilty. I say to his credit because I take that into account in his favour. The prosecutor acknowledges that his plea was made at the earliest opportunity. That makes sense because he was frank in his confession to the police.

19. I make the following findings based upon the evidence which was the pre-sentence report. Mr Bavadra’s childhood was stable and he was well supported by his family. He left school in Year 9 at the age of sixteen. He has been mainly unemployed since leaving school. He has in the past undertaken some TAFE courses on a full-time basis. He started using heroin when he was eighteen. He has done some programmes in custody related to his alcohol and other drug use but regarded them as “not in-depth enough”.

20. He was under the influence of drugs when he committed this particular offence. He expressed to the Probation and Parole Officer remorse for this crime.

21. There is another event which is significant for him and his family. His older brother Lorima was killed in a car accident about a year ago. That had, on Mr Bavadra’s evidence, a devastating impact on his family and on him. He was at liberty in the community at that stage. He had been sentenced for the previous armed robbery to three and a half years commencing 27 February 2003. That overall sentence concluded on 26 August 2006. Although a non-parole period of eighteen months was set concluding on 26 August 2004 Mr Bavadra breached his conditions of parole when he was released pursuant to that order. Hence he was returned to custody and released again on parole only a month or two before the expiry of the overall sentence on 26 August 2006. He therefore had a very limited time where he could turn to the Probation and Parole Service for support before his overall sentence expired. That lack of support combined with the tragic death of his brother, as he said in evidence, brought about a return to his old ways. His old ways included regular drug-taking, particularly what he described as party drugs. Affected by his brother’s death he returned to drug-taking and committed this particular offence whilst he was under the influence of drugs. That does not excuse the offence but it does explain it.

22. Mr Bavadra was born on 18 June 1984, so that he is now twenty-three years of age. I should add that after he was released in July 2006 and was for a very short period of time on parole, he had enrolled for the TAFE courses which I had referred to. He was attempting to complete Year 10 of his secondary schooling and was undertaking a Certificate Course in Health and Fitness. This was all interrupted by the return to his old ways associated with his brother’s death and led to the behaviour which amounted to the offence in this case. He said, and I accept, that he wants to do more courses which will assist him whilst he is in custody. He says that he is no longer taking drugs. He has concentrated on fitness and training whilst he has been in custody. He has been on remand up until now and it has been difficult to get into the programmes he would like to do. That will become easier when he is sentenced. He would like to do the Young Offenders Programme and a Violence Prevention Programme, although there may well be still some limitations because of two factors - which are probably themselves associated - one is that he has been convicted in the past of escaping police custody and the other is that he is being held in correctional centres which themselves have limited facilities.

23. The author of the pre-sentence report, Linda Burridge, said in her report dated 8 October 2007 that she regarded Mr Bavadra’s willingness to complete programmes relating to his offending behaviour as encouraging. She thought that he would benefit from the supervision and guidance of this service and recommended that any supervision concentrate on certain areas.

24. There is one other important piece of history I need to refer to. Mr Bavadra was convicted of the offence of bringing a syringe into a place of detention. That is an offence against the Summary Offences Act 1988. He was sentenced to six months imprisonment for that offence. It happened in these circumstances. He had been arrested, as I said, on 11 March 2001 in respect of the armed robbery that I am sentencing him for. He was processed by the police and handed over to Corrective Services. The processing by the police did not detect a syringe which was hidden on his person. Corrective Services discovered it on a strip search an that resulted in the charge and the sentence of six months imprisonment. That sentence commenced on 11 March 2007 and concluded on 10 September 2007. On one view of things a sentence which I impose should commence on 11 September 2007. I will return to that shortly.

25. Mr Willis in his submissions emphasised the full and frank admissions made to the police and realistically acknowledged the objective seriousness of the offence. He laid stress on the fact that his client had had a relatively short time on parole as a result of the previous armed robbery. This was despite him having a long-standing drug problem.

26. He also emphasised, in drawing my attention to the need to find special circumstances to adjust the non-parole period to the parole period, the risk that his twenty-three year old client may become institutionalised. He has spent a good deal of time in custody over the last five years.

27. He acknowledges his prospects for rehabilitation, once again realistically, as hopeful. He acknowledges the impact of the fact that his client has previous convictions and committed this offence in company and that there was a degree of planning, although he says unsophisticated.

28. I accept his submission that his client has been remorseful and I will take into account favourably to his client his plea of guilty and discount the sentence accordingly.

29. Mr Willis invites me to backdate the sentence to 11 March 2007. Ms Graham acknowledges that it is open to me to fully or partially backdate the sentence. I propose to backdate it fully. I do this for two reasons. The first reason is that the possession of the syringe was closely related to the offending behaviour that I am sentencing Mr Bavadra for. The second thing is the relevance of the risk to Mr Bavadra, a young man, that he could become institutionalised by spending so much time in gaol. As a concession to that factor I propose to backdate the sentence to 11 March 2007.

30. Mr Willis invites me to find special circumstances. Ms Graham acknowledges that it is open to me to make such a finding. I do find that there are special circumstances warranting the adjustment of the non-parole period and the parole period. In particular I note the recommendation of the pre-sentence report that a period of supervision at a high level would be appropriate and I accept the submission that this is a case where I need to take into account the risk that a young man could become institutionalised in prison.

31. Both legal representatives addressed the relevance of Henry. Mr Willis acknowledge that arguably the case was outside the guideline judgment of Henry because of his criminal record and a degree of actual violence. Nevertheless he said that Henry should remain as a guidepost. Ms Graham submitted that a sentence should be in excess of the Henry guideline but reminded me that the Henry guideline is based upon the assumption that the plea is quite late. In this case the plea was made at the earliest opportunity and Mr Bavadra needs to be given the benefit of such an early plea.

32. Turning to the factors which the Court of Criminal Appeal described in Henry as typical of an armed robbery case and relating them to Mr Bavadra’s case I make the following findings.

(1) He is a young offender but it cannot be said that he has little or no criminal history. He gets no leniency at all from his criminal history.
(2) He was armed with a knife capable of killing or inflicting serious injury.
(3) There was more than a limited degree of planning in this case. I agree with Mr Willis that it was not sophisticated but it could not be described as limited.
(4) It cannot be said that there was limited, if any, actual violence. Although the violence was not extensive it was gratuitous and involved three separate assaults by Mr Bavadra on the male victim.
(5) The victim was in a vulnerable position. He was in his own home and therefore not able to call to members of the public for assistance.
(6) Relatively speaking it might be said a small amount was taken. On the other hand a thousand dollars would be regarded by some people as not a small amount.
(7) Mr Bavadra has pleaded guilty and, as I said, I take that into account.
For a typical case the Court of Criminal Appeal has proposed, or suggested a narrow sentencing range of between four and five years as the head sentence, or full term, for an armed robbery.

33. I regard Mr Bavadra’s case as being on balance more serious than the typical armed robbery case which the Court of Criminal Appeal had in mind. In particular there was a degree of planning and a degree of violence. This must be weighed against the fact that there was an early plea but also the typical case includes a person with little or no criminal history, so Mr Bavadra falls outside that range.

34. Nevertheless, because of his youth, which is a factor I take into account, I do not propose to impose a sentence which is far outside the Henry range. I propose to fix a head sentence of five and a half years to be served in this case.

35. For the reasons which I have given I find that there are special circumstances warranting my adjusting the proportion between the non-parole period and the parole period. In addition I propose to backdate the sentence for the reasons which I have already given.

36. Accordingly, I fix a non-parole period of two years and six months and a balance of the term of three years.

37. Stand up Mr Bavadra. Mr Bavadra for the offence of armed robbery I sentence you to an overall sentence of five years and six months. That is to commence on 11 March 2007 and to expire on 10 September 2012. I fix a non-parole period of two years and six months. It is to commence on 11 March 2007 and to expire on 10 September 2009. I fix the balance of the term after the non-parole period as three years to commence on 11 September 2009 and to expire on 10 September 2012.

38. When you are considered for parole by the Parole Authority I recommend to the Authority that they consider releasing you to the supervision and guidance of the Probation and Parole Service and that the Authority direct or recommend a case plan involving medium to high level of supervision with focus on the following four areas.

(1) Alcohol and other drug counselling or programme participation.
(2) Psychological counselling to assist you reintegrating into the community.
(3) Referral to an appropriate training and education programme.
(4) Referral to the Pacific Islander Programme facilitated by the Probation and Parole Service, Mount Druitt District Office. And for that reason I direct that the pre-sentence report accompany you into the Corrective Services System.

Just have a seat a moment Mr Bavadra.

Now Ms Graham and Mr Willis are there any other formal orders that I need to make?

WILLIS: I don’t think formal orders, I’m just not sure whether your Honour indicated that you had taken the Form 1 matter into account.

HIS HONOUR:

39. I did towards the commencement of the sentence but, for abundant caution and as part of the orders in sentencing Mr Bavadra as I have, I indicate that I have taken into account the offence which is listed on the list of additional charges pursuant to the Crimes (Sentencing Procedure) Act s 32.

GRAHAM: Does your Honour’s order recommend release to parole with those certain conditions rather than order release to parole because it’s three years.

HIS HONOUR: I didn’t - no I - yes I did - I didn’t order his release. I indicated that when he is considered for release by the Parole Authority that they recommend or direct those conditions.

GRAHAM: And that’s because the parole--

HIS HONOUR: It’s more than three years.

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