Sentences imposed in relation to counts 2,3,4,6 and 7 quashed. In lieu, respondent sentenced to a fixed term of imprisonment for four years for count 2, six years for count 3, four years for count 4, six years for count 6 and a fixed term of imprisonment for nine years for count 7 to be served concurrently and partly consecutively with the sentences imposed for the remaining counts.
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IN THE COURT OF CRIMINAL APPEAL
No. 60845/99
BEAZLEY JA WOOD CJ at CL GREG JAMES J
THURSDAY 31 AUGUST 2000
Regina v Lorima BAVADRA
JUDGMENT
The respondent pleaded guilty to two counts of robbery whilst armed, two counts of robbery in company, and three counts of robbery whilst armed with a dangerous weapon. In addition, there were eleven offences included in the Form 1, which included six separate and unrelated robberies. The DPP appealed under s5D of the Criminal Appeal Act 1912 against the inadequacy of sentence imposed on grounds that (1) the sentencing judge did not give sufficient weight to the offences included in the Form 1, (2) in relation to any particular count, the sentence imposed was manifestly inadequate, and (3) there was manifest leniency in the way in which the sentencing order was framed by way of concurrent sentences.
HELD:
1. Where a Form 1 includes serious offences they should not simply be noted, but must be taken into account when the sentence is imposed. Even if the Form 1 offences were applied distributively among the three s97(2) offences, the criminality of the respondent’s conduct was not given its proper weight. Morgan (1993) 70 ACrimR 368
2. In determining the appropriate sentence, the number of offences and their individual seriousness, judged objectively and by reference to the penalties specified by the legislature, must be taken into account. In imposing the sentence, the judge is permitted to consider all of the conduct of the defendant including conduct which aggravates the offence, on the proviso that the defendant…
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.
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AGLC
R v Bavadra [2000] NSWCCA 292
Case
[2000] NSWCCA 292
Decision Date
CaseChat Overview and Summary
The matter before the Court was an appeal by the Crown against the sentence imposed on the respondent, Bavadra, who was convicted of robbery whilst armed with a dangerous weapon and robbery whilst armed in company. The sentencing judge had imposed a sentence of imprisonment for six years and three months on each count, to run concurrently. The Crown sought an increased sentence on the basis that the original sentence was inadequate.
The central legal issue was whether the sentence imposed by the trial judge was manifestly inadequate under section 5D of the Criminal Appeal Act 1912. The Crown argued that the sentence did not adequately reflect the seriousness of the offences, nor did it achieve the purposes of denunciation, retribution, and general deterrence. The respondent, on the other hand, contended that the sentence was appropriate given the circumstances and the principle of totality.
The Court held that the sentence imposed by the trial judge was indeed manifestly inadequate. The Court found that the trial judge had not sufficiently considered the aggravating factors present in the case, including the use of a dangerous weapon and the involvement of others in the commission of the offence. The Court noted that the principle of totality required the sentence to reflect the overall criminality of the respondent's conduct, and in this case, the concurrent sentences did not adequately reflect the cumulative seriousness of the two counts of robbery. The Court increased the sentence to a total of eight years and six months imprisonment, to be served consecutively.