R v BACHRA

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BACHRA
[2012] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice White)
4 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
The appellant was sentenced for 20 offences, including offences of violence, theft and blackmail committed over a six week period and involving six victims - the Judge imposed a single sentence of imprisonment for 15 years and seven months and fixed a non-parole period of eight years.
Appeal against sentence - whether sentence is manifestly excessive - whether the sentence is crushing and should have been reduced in accordance with the totality principle.
Held (dismissing the appeal): the appellant's offending warranted a severe sentence - the Judge did not overlook the possible application of the principle of totality - the sentence is not so severe as to have a crushing effect on the appellant - the principle of totality did not require a reduction of the sentence.
R v Rossi (1988) 142 LSJS 451, applied.
Postiglione v The Queen (1997) 189 CLR 295; R v B, RWK (2005) 91 SASR 200; R v E, AD (2005) 93 SASR 20, discussed.

R v BACHRA
[2012] SASCFC 31
R v BACHRA
Court of Criminal Appeal: Vanstone, Anderson and White JJ

VANSTONE J: I have had the advantage of reading the draft reasons of White J.
I agree that the appeal should be dismissed. The sentence imposed was a long one, but that was dictated by the number and seriousness of the offences committed by the appellant. I would not describe the sentence as severe. I would say only that it was within the range of sentences available to the judge and did not call for a reduction by reference to the totality principle.
ANDERSON J. I agree that the appeal should be dismissed for the reasons given by White J.
WHITE J. The appellant was sentenced in the District Court for 20 offences, including offences of violence, theft and blackmail. The Judge imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) of imprisonment for 15 years and seven months and fixed a non‑parole period of eight years.
The appellant appeals against that sentence, contending that it is manifestly excessive. His complaint is that the sentence is crushing, and should have been reduced in accordance with the totality principle.
The offences were committed over a six week period in September and October 2006. They comprised three groups of offences and involved six victims.
At the time, the appellant was 25 years old. His parents had emigrated to Australia from India but the appellant himself was born and educated in the Riverland. His employment before committing the offences had generally been of an unskilled and semi‑skilled kind in the wine and viticultural industries.
The First Group of Offences
The first three offences were committed on 3, 9 and 14 September 2006. All involved the same victim (V1), a resident medical officer at the Flinders Medical Centre (FMC). V1 was an Indian national.
In the early hours of Saturday, 2 September 2006 an altercation occurred between an associate of the appellant, Mr Singh, and V1. In the course of that altercation V1 broke the windscreen of a vehicle driven by Mr Singh but owned by his father.
On the evening of the same day, some associates of the appellant and Mr Singh, using a pretext, picked up V1. They took him to a park at which the appellant and Mr Singh threatened to kill him unless he paid for the damaged windscreen. The appellant and Mr Singh then drove V1 to an ATM and forced him to withdraw $1,200 from his bank account and to hand it over to Mr Singh. This amounted to an offence of aggravated robbery.[1]
[1] The information charged this offence as a contravention of s 137(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), but it should have been charged as a contravention of s 137(3).
Seven days later, the appellant went to V1’s apartment at the FMC. After punching V1, the appellant threatened to beat him further and to arrange for his deportation unless he acceded to the appellant’s demands. The appellant then drove V1 to an ATM at which he withdrew $900 and handed it over to the appellant. This conduct constituted the offence of robbery.[2]
[2] Contrary to s 137(1) of the CLCA.
Five days later, on 14 September 2006, the appellant again went to the apartment of V1 at the FMC. He demanded more money from V1 and threatened to have him deported if he did not comply. When V1 said that he was not prepared to give any more money, the appellant assaulted him by punching him, choking him and kneeing him in the groin. The appellant then took V1’s credit card but shortly afterwards a security guard approached. V1 informed the guard that the appellant had his credit card, whereupon the appellant crushed the card in his hand and threw it to the ground. This conduct comprised the offence of attempted robbery.[3]
[3] Contrary to ss 137(1) and 270A of the CLCA.
The appellant pleaded not guilty to these charges and they were listed for trial. However, on the day the trial was due to start, the appellant entered pleas of guilty to each offence.
The Second Group of Offences
The second group of offences comprised nine offences, five of which were committed on 19 September 2006 and the remaining four on 20 September 2006. These offences were committed against young men of Indian descent who were studying in Adelaide. Each was a stranger to the appellant.
On the evening of 19 September 2006 the appellant was with a group of friends, including Mr Singh. They had a flyer indicating that tickets for a forthcoming Bollywood concert could be obtained from V2. However, when one of the group rang V2’s number, he said that he did not have any tickets. Shortly afterwards, using pretexts, Mr Singh obtained V2’s address and he, the appellant and others went to his home.
After making an implied threat, Mr Singh was admitted to V2’s unit and was followed by the appellant and two others. V2 and a friend (V3) were told to sit on a sofa. Some of the group then went to V2’s bedroom and rifled through his belongings. At the same time another member of the group questioned V2 about the manner in which he had spoken on the telephone and slapped him across the face. One of the group filmed V2’s distress.
The group then engaged in various forms of conduct to humiliate V2 and to emphasise his vulnerability. One forced V2 to drink from a bottle of whisky, at the same time taunting and teasing him. The appellant and another man then held V2 up against a wall, while Mr Singh held a knife against V2’s penis. While doing this, Mr Singh laughed and asked V2 what would happen if he cut off his testicles. Needless to say, this caused V2 considerable distress. That incident constituted the offence of aggravated threatening harm.[4]
[4] Contrary to s 19(2) of the CLCA.
The appellant and Mr Singh then engaged in further cruelty. They took V2 to a bathroom, directed him to remove his clothes and to stand in the bathtub. Mr Singh then poured a bottle of Vodka over V2. At the same time, the appellant lit a cigarette lighter and held it close to V2, while Singh enquired of V2 as to the time which it would take for him to burn. This conduct constituted the offence of aggravated threatening to kill.[5]
[5] Contrary to s 19(1) of the CLCA.
The group of intruders then left but returned shortly thereafter. Mr Singh was wearing V2’s jacket. When V2 asked for the return of his jacket, he was punched and thrown to the floor. The appellant also re-entered the unit and punched V2 in the face. The punch to the face constituted the offence of aggravated assault.[6]
[6] Contrary to s 20(3) of the CLCA.
The appellant’s conduct in remaining in V2’s unit with the intention of committing theft constituted the offence of aggravated serious criminal trespass in a place of residence.[7] The theft of V2’s jacket and other possessions, including an iPod, mobile phone and gold bracelet, constituted the offence of robbery. The appellant’s plea to those offences involved an acknowledgement that he was a participant in a joint enterprise.
[7] Contrary to s170(2) of the CLCA.
On the following day, the appellant telephoned V2’s unit. V3 was present. Acting on a pretext, the appellant arranged to pick up V3 and to take him to a McDonald’s restaurant. There he told V3 that he could arrange for him to be deported unless he handed over money.
The appellant then drove V3 back to the unit. Two further victims, V4 and V5, were present. The appellant boasted that he could arrange for each of the four victims to be charged falsely with criminal offences and then deported unless they handed over $6,000. The men agreed to pay that money but had only $1,300 immediately available. The appellant arranged for them to meet him later that day to collect the money. Later, on 20 September, the victims handed over a total of $1,250. The appellant then said that he would call them later in the day to organise payment of the balance of the $6,000.
The appellant telephoned the victims later that afternoon. When they indicated that they were unable to raise the $6,000, he made further threats with a view to securing their compliance. At that point the victims reported the appellant’s conduct to the police.
The appellant’s conduct in relation to each of the four victims gave rise to four separate charges of blackmail.[8]
[8] Contrary to s 172 of the CLCA.
The appellant’s trial for the offences in the second group was listed to commence in April 2011. However, on 31 March 2011 he pleaded guilty to each of the offences.
The Third Group of Offences
The third group, comprising eight offences, were committed on 10, 11 and 16 October 2006. All involved the one victim (V6), an Indian student studying in Adelaide. The appellant was found guilty of these offences by a jury on 15 April 2010.
The convictions and the circumstances of the offences are set out in some detail in R v Bachra.[9]Briefly, the circumstances were as follows. The appellant agreed to sell a car (which he did not then own) to V6 for $600. V6 gave the appellant the money and took possession of the car. He asked the appellant for the registration transfer papers but the appellant did not provide them. V6 then telephoned the appellant on a number of subsequent occasions requesting the registration papers. On each occasion he was fobbed off.
[9] [2010] SASCFC 42 at [12]-[31].
On 9 October 2006, V6 went to the Motor Vehicles Department and arranged for the car to be transferred into his own name. On the following day the appellant confronted V6 at the home of another about his conduct in arranging the registration of transfer. He accused V6 of wasting his time and demanded money from him to compensate him, so he said, for having had to take time off work to deal with the matter, and for the cancellation of the existing registration of the car. In the course of this confrontation, the appellant punched V6 on the left cheek. This constituted the offence of assault.[10]
[10] Contrary to s 20(3) of the CLCA.
The appellant then demanded of V6 why he was trying to get money from a housemate for payment of an electricity bill. He told him that he would have to pay the housemate’s share of the bill, pushed him to the ground and placed his foot on the chest of V6. The appellant then left the room but returned shortly afterwards with a handgun. He pressed the muzzle of the gun against V6’s forehead and told him “I can kill you right now, but today you are a bit lucky, because there are no bullets in this gun”. He then removed the magazine from the gun and showed V6 that it was empty. This conduct comprised the offence of aggravated assault.[11]
[11] Ibid.
On learning that V6 owned a laptop computer, the appellant drove V6 to his home and took the laptop. That conduct comprised the offence of aggravated robbery. The appellant then drove V6 to an ATM and demanded that he withdraw money to compensate him, so he said, for having had to take time off work. He warned V6 that he could “blow his head off” and also warned him not to talk to anyone else. V6 then withdrew $500 and handed it over to the appellant. This was another offence of aggravated robbery.
The appellant met V6 later again on 10 October and told him that he had incurred more fines so that V6 now owed him $1,700. The appellant told V6 to ring his friends to obtain the money from them. V6 made some calls but was unable to raise the money. He handed over $400 which he held in cash. The appellant’s conduct in this incident constituted an offence of robbery.
On 11 October, V6 informed some persons who turned out to be associates of the appellant, that he was thinking of reporting the appellant’s conduct to the police. Shortly afterwards the appellant arrived and informed V6 that he was in trouble for even thinking of going to the police. He demanded payment of $2,000 instead of the $1,700 which he had demanded on the previous day. The appellant threatened to kill V6 and his family if he did not cooperate. The appellant told V6 that if he paid the money, he would return the stolen laptop and give him the registration papers for the car.
The appellant arranged to meet V6 that evening. He told V6 that he would return the laptop and provide the registration papers if he paid $2,000 for the fines which he claimed V6 had incurred while driving the car. The appellant told V6 to meet him at midday the next day to hand over $1,000 and that he would collect the balance of $1,000 from V6 later. The appellant threatened to kill V6, his former housemate, his current housemate and his current housemate’s children if he went to the police or failed to cooperate. That threat and the demand for money gave rise to a charge of blackmail. Before leaving V6 on this occasion, the appellant took $20 from V6’s wallet. This constituted the offence of robbery.
On 12 October, V6 did provide $2,000 to the appellant but did not receive the laptop or the registration papers.
Over the ensuing days, V6 received a number of telephone calls from the appellant but did not answer them. On 16 October 2006, the appellant pulled up alongside V6 as he was walking on Regency Road. He told him to get into the car and drove him into some side streets. The appellant told V6 that he had to pay for further fines and threatened to kill him, his current housemate and his parents if he did not. He then drove V6 to an ATM and, having forced V6 to disclose the PIN for each of his bank cards, withdrew $200 from V6’s account. This conduct constituted an offence of robbery.
Shortly afterwards V6 reported the matter to the police.
Summary of Offences
All in all, in this six week period, the appellant committed three offences of aggravated robbery, five offences of robbery, five offences of blackmail, two offences of aggravated assault and one offence of each of aggravated serious criminal trespass in a place of residence, attempted robbery, aggravated threatening to cause harm, threaten to kill and assault. In general, the appellant’s conduct was of an intimidatory and bullying kind directed to students in positions of some vulnerability. It was the crude conduct of a standover man. I agree with the Judge’s description:
The crimes you committed were very serious and warrant condign punishment. You subjected your victims to intimidation, violence, robbery and blackmail. These were not impulsive offences. Each set of offences involved guile, cunning and planning and thuggery which you seem to relish. … The magnitude and gravity of your offences is such that general deterrence and punishment must be the primary sentencing considerations.
The seriousness of the offences is evident from the maximum penalties which are applicable. Each of the offences of aggravated robbery and aggravated serious criminal trespass in a place of residence has a maximum penalty of imprisonment for life, the offences of robbery and blackmail a maximum penalty of imprisonment for 15 years and the offence of aggravated threatening life a maximum term of imprisonment for 12 years.
The other offences carried maximum penalties of imprisonment for terms between two years and nine years and nine months.
Needless to say, the appellant’s conduct had profound effects on his victims. Several of them were international students studying in Adelaide and not altogether familiar with the customs and practices of this society. The appellant took advantage of their vulnerability.
Several of the victims have reported that the distress of the offences themselves, and of their involvement in the subsequent criminal proceedings, has been disruptive to their studies. They have, in addition, suffered financial losses as a result of the appellant’s conduct.
In the case of V6, the effect has been even more significant. He requested his parents in India to provide him with funds by which he could meet the appellant’s demands. They had borrowed to support V6 in his studies in Australia and could ill‑afford to make extra advances.
The Appellant’s Personal Circumstances
The appellant was born in 1981 and has one brother. His family has experienced significant misfortune. In 1979, the appellant’s father was rendered a paraplegic as a result of a car accident. In 1992, the appellant’s parents lost their vineyard in the Riverland after his father was declared bankrupt. The appellant’s mother suffers from a variety of ailments which are disabling.
The appellant and his brother have been loyal sons and over the years have provided considerable support to their parents. This included saving the money for a deposit on a house in the Riverland which the two boys bought for their parents. The parents now subsist on a disability pension but, bearing in mind the father’s paraplegia, this is insufficient for their needs. The appellant and his brother provide financial support and, until his incarceration, the appellant provided considerable practical assistance around the home.
The Judge accepted that in about 2005 the appellant had befriended a man who persuaded him to act as guarantor in respect of a loan of $160,000. However, shortly afterwards, the borrower returned to India keeping his whereabouts unknown. The lenders then confronted the appellant demanding payment from him under his guarantee, including by making threats and subjecting him to an assault in order to enforce their demands for repayment. The appellant said that he committed the offences because he needed the money to repay the friend’s loan and also to maintain the mortgage payments on the property which he and his brother had purchased in the Riverland. However, the appellant also acknowledged that his financial difficulties were exacerbated by his abuse of alcohol and use of illicit drugs.
The appellant did not have previous court appearances for offences of violence or dishonesty but did have several convictions for traffic offences, including offences of driving an unregistered and uninsured vehicle, driving whilst disqualified and driving without a driver’s licence. The Judge regarded the appellant’s history as indicating a disregard for the law, but accepted that his conduct since 2006 was consistent with him endeavouring to lead a law abiding life.

The appellant has been in custody since April 2010. He has used the time to obtain further educational qualifications and has assisted other prison inmates in their educational endeavours.
The Judge had several letters of commendation and references concerning the appellant. All spoke well of him. However, it is not clear that the authors of these references are aware of the full extent of the appellant’s offending.
The Judge’s Sentence
The Judge sentenced the appellant on the basis that he was “in dire financial circumstances at the time and under pressure from unscrupulous persons”. He indicated, however, that little lenience could be extended on that basis saying that the appellant was expected to address his financial problems in a lawful manner. The Judge also considered that the appellant’s offending was not motivated entirely by a desire for money with which to meet his own debts. He referred to the evident perverse enjoyment which the appellant had obtained from inflicting physical and mental cruelty upon the victims.
The Judge accepted that the appellant was ashamed of his crimes and genuinely contrite. This was a significant finding in the appellant’s favour as he had falsely maintained his innocence at two trials for the offences involving V6, and had then challenged the convictions on appeal.
In addition, the Judge accepted that the various references and commendations submitted as part of the sentencing submissions, the report of the psychologist, Mr Balfour, and the appellant’s conduct since being incarcerated all indicated that he had favourable prospects of rehabilitation. He took into account the effect on the appellant’s parents of his incarceration.
Unsurprisingly, having regard to the number and nature of the offences, the Judge considered that a severe sentence was appropriate.
The Judge adopted the technique of identifying a notional single sentence for each group of offences and then accumulating those individual notional sentences. In respect of each of the first two groups of offences, the Judge commenced with a notional starting sentence of imprisonment for six years, but reduced that starting point in each case to four years and six months on account of the appellant’s guilty pleas, contrition and remorse. In relation to the third group of offences, the Judge considered a notional sentence of imprisonment for eight years was appropriate. No reduction from this notional sentence was possible, bearing in mind the absence of contrition and remorse as expressed in guilty pleas.
The Judge considered that each of the three groups of offences involved distinct and separate acts of offending and therefore considered it appropriate that the notional sentences should be made cumulative. By this means the Judge reached a sentence of imprisonment for 17 years. The Judge reduced that period by 17 months on account of the time which the appellant had spent in custody and on home detention bail. This led to the imposition of a single sentence under s 18A of 15 years and seven months. The Judge considered that the appellant did have good prospects of rehabilitation and so fixed “a relatively low” non‑parole period of eight years imprisonment. Both the head sentence and the non‑parole period commenced on 19 April 2010, when the appellant’s bail had been revoked following his convictions on the third group of offences.
Consideration
Counsel for the appellant accepted that the notional sentences fixed by the Judge for each group of offences were within an appropriate range for those offences. Counsel also accepted that it was appropriate for the Judge to have regarded each group of offences as a separate incursion into criminal conduct so as to warrant the accumulation of the notional sentences.
Counsel submitted, however, that the Judge had erred in failing to regard a starting point of imprisonment for 17 years before reduction for time served as so crushing so as to warrant reduction under the principle of totality.
Counsel emphasised the aspects of the appellant’s personal circumstances to which I referred earlier. These included the appellant’s expression of remorse and contrition, the fact that he had come from a good and stable family, that he had demonstrated the ability to engage in hard work, that he was a responsible and dutiful son, that he was of considerable assistance to his disabled parents, that he was generally well regarded in his community, and that since going into custody he has made considerable attempts to improve himself and to assist in the education of other prisoners.
The principle of totality is well established. King CJ in R v Rossi[12] said:
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes become so crushing as to call for the merciful intervention by the court by way of reducing the total effect …[13]
In Postiglione v The Queen[14] Kirby J indicated that a sentence may be regarded as crushing if it “would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”.[15]
[12] (1988) 142 LSJS 451.
[13] Ibid at 453.
[14] (1997) 189 CLR 295.
[15] Ibid at 341.
The circumstances in which it will be appropriate for a court to apply the totality principle are confined. Doyle CJ made this point in R v B, RWK[16] when he said:
The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.[17]
Further, the totality principle does not always require a sentence which is otherwise just to be reduced on the ground that it may be crushing to the offender involved. Doyle CJ made this point in R v E, AD[18] when he said:
Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the Court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.[19]
[16] [2005] SASC 84; (2005) 91 SASR 200.
[17] Ibid at [16]; 203.
[18] [2005] SASC 332; (2005) 93 SASR 20.
[19] Ibid at [38]; 30.
The Judge did not overlook the possible application of the principle of totality in the present case. Having determined that the sentence of 15 years and seven months was appropriate he said “I do not believe that the totality principle warrants any further reduction”.
The sentence imposed on the appellant is undoubtedly severe. Before the deductions on account of the appellant’s late pleas of guilty to the first and second groups of offences and for time served, the Judge’s starting point is, in effect, imprisonment for a 20 year term. Before the deductions for the time already spent in custody and on home detention bail, the Judge’s starting point is 17 years.
On the other hand, the appellant’s offending warranted a severe sentence. Each of the offences considered by itself was serious, some obviously more so than others. The appellant had numerous opportunities to reflect upon the wrongfulness of his conduct and yet persisted in it. The offences involved thuggish conduct in relation to six separate victims and involved, in each case, exploitation of their vulnerability for the appellant’s self‑centred ends. In the case of V2 in particular, the appellant’s conduct included gratuitous humiliation and cruelty. This was a case in which it was important that, in addition to the usual requirements for both personal and general deterrence, the sentence reflected an emphatic denunciation of the appellant’s conduct. The courts should indicate that the use of the standover tactics adopted by the appellant in the subject offences should not be tolerated.
The non‑parole period of eight years is also important in considering whether the sentence should be regarded as crushing. It is just over half the sentence actually imposed, and less than half of the Judge’s starting point before deduction for time served. The Judge fixed this “relatively low” non‑parole period because of the appellant’s good prospects of rehabilitation. In this way, the Judge did take account of the factors upon which the appellant now relies. It cannot be said that they were overlooked and have not been reflected in the overall sentence.
As I have indicated, I consider that the sentence in this case is severe. However, I do not consider that the sentence should be regarded as so severe as to have a crushing effect on the appellant or as being manifestly excessive. I do not consider that the principle of totality requires a reduction in the sentence fixed by the Judge.
Conclusion
For the reasons given above, I would dismiss the appeal.

[2012] SASCFC 31

4 April 2012

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Sentencing

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