R v Bavadra

Case [2000] NSWCCA 292


Reported Decision: [2000] 115 A Crim R 152

New South Wales


Court of Criminal Appeal

CITATION: R v Bavadra [2000] NSWCCA 292
FILE NUMBER(S): CCA 60845/99
HEARING DATE(S): 7 August 2000
JUDGMENT DATE:
31 August 2000

PARTIES :


Regina
Lorima Bavadra
JUDGMENT OF: Beazley JA at 1; Wood CJ at CL at 2; Greg James J at 53
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 99/21/0018
LOWER COURT JUDICIAL
OFFICER :
English DCJ
COUNSEL : P. Hock for Crown
G.D. Wendler for Applilcant
SOLICITORS: E.E. O'Connor
Van Houten
CATCHWORDS: CATCHWORDS - CRIMINAL LAW- appeals - Crown appeal against inadequacy of sentence - s5D of the Criminal Appeal Act 1912 - robbery whilst armed - robbery whilst armed with dangerous weapon - robbery in company - Form 1 matters - aggravating circumstances - accelerating criminality - principle of totality - concurrent sentences - double jeopardy
CASES CITED:
ACTS CITED
Crimes Act 1900 (NSW) s97
Crimes (Sentencing Procedure) Act 1999 (NSW) s22
Criminal Appeal Act 1912 (NSW) s5D
DECISION: 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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