R v Govinden

[1999] NSWCCA 118

Reported Decision: 106 A Crim R 314

New South Wales

Court of Criminal Appeal

CITATION:	R v Govinden [1999] NSWCCA 118
FILE NUMBER(S):	CCA 60837/98
HEARING DATE(S):	19 May 1999
JUDGMENT DATE:	19 May 1999
PARTIES :	Regina (Appellant) Jean Vincent Didier Govinden (Respondent)
JUDGMENT OF:	Dunford J at 1; Greg James J at 43; Smart AJ at 44

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1228; 98/21/1223
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ

COUNSEL:	MG Sexton SC (Appellant/Crown) H Di Suvero (Respondent)
SOLICITORS:	CK Smith (Appellant/Crown) Castagnet Lawyers (Respondent)
CATCHWORDS:	CRIMINAL LAW - Sentencing - Crown Appeal - Armed robbery in company - General requirement for custodial sentence - exceptions.
ACTS CITED:	Crimes Act 1900, s 97(1).
CASES CITED:	R v Readman (1990) 47 A Crim R 181. R v Roberts (1994) 73 A Crim R 306. R v Maddocks (CCA - unreported - 25 November 1993). R v Wright (1997) 93 A Crim R 48. R v Henry and Ors [1999] NSWCCA 111. R v Richards (1981) 2 NSWLR 464. R v Tocknell (CCA - unreported - 28 May 1998). R v Tran [1999] NSWCCA 109. R v Farah (CCA - unreported - 11 December 1998). R v Pham (1991) 55 A Crim R 129. R v Lattouf (CCA - unreported - 12 December 1996). R v Broad (CCA - unreported - 13 March 1984). Postiglione v The Queen (1997) 189 CLR 295.
DECISION:	Crown appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60837/98

DUNFORD J
GREG JAMES J
SMART AJ 19 MAY 1999

R v Jean Vincent Didier GOVINDEN
JUDGMENT

1 DUNFORD J. This is a Crown appeal on the ground of inadequacy against the sentences imposed on the respondent following his pleas of guilty to charges of accessory after the fact to armed robbery and robbery in company, both contrary to section 97(1) of the Crimes Act 1900, which provides for maximum penalties of 14 years and 20 years penal servitude respectively.

2    In respect of the charge of accessory after the fact to armed robbery, and taking into account a further matter on a Form 2 of possess a shortened firearm, her Honour Judge Ainslie-Wallace deferred entering a conviction, on the respondent entering into a recognisance himself in the sum of $500 to be of good behaviour for two years with provision for supervision and psychotherapy.

3    On the charge of robbery in company, her Honour sentenced the respondent to 200 hours community service, of which 50 hours was to be spent at an attendance centre. The sentences were imposed on 8 December 1998 and the Director's Notice of Appeal was signed on 22 December and served personally on the respondent on 23 December.

4    The facts giving rise to the two matters may be shortly stated as follows. On 14 March 1998 one Yann Legrand robbed a Pizza Hut takeaway store at Woodcroft using a shortened firearm. He was questioned, arrested and charged with armed robbery on 27 March and in the course of the interview he made full admissions and revealed that the firearm used in the offence had been left by him at the respondent's residence. Police attended with a search warrant, the weapon was recovered, and consequently the respondent attended Blacktown Police Station in company with his father.

5    He made full admissions and was arrested and charged with the first offence. He admitted in particular that he had been minding the gun for Yann Legrand, as the latter was worried that his parents or the police might find out, that he knew the gun had been used in the robbery, that robbery was an offence, and that the gun was illegal. He was released on bail.

6    On 16 April 1998 at about 8.50 pm he went with three juveniles, Ricky Pass, Tony Issa and Mathew Bonney, to the vicinity of the Dost Market Food Store at Blacktown. Issa and Bonney remained in Bonney's vehicle whilst Pass and the respondent entered the store wearing balaclavas over their heads. Issa carried a replica pistol (actually a toy water pistol) and the respondent a sports bag. They approached the co-owner of the business, a Mr Izci, and Pass produced the replica pistol and demanded that Mr Izci give them money, whereupon the respondent held the bag open to receive it. Ultimately, they decamped with approximately $3,000. They ran out of the shop and down a laneway to the waiting vehicle, and Bonney drove them from the scene.

7    Subsequently, Bonney was arrested and interviewed. He described the person who accompanied Pass to the shop, whose name he did not know. The respondent attended Blacktown Police Station in company with his solicitor and declined to answer questions but agreed to participate in an identification parade, at which Bonney subsequently identified him.

8    He was again interviewed and again declined to answer any questions and was again charged. The respondent gave evidence at the sentence proceedings that he received no payment for the accessory offence and only $40 for the armed robbery offence.

9    He further said that in relation to the latter offence he had been telephoned by Ricky Pass, whom he knew from school and who had asked him if he was interested in doing an armed robbery, to which he had replied "No". Pass phoned back later and invited the respondent to play pool with a few friends. He agreed to do this, but said that when he arrived at Pass' home Pass again suggested doing a robbery and the respondent, in the company of Issa and Bonney, agreed.

10    The respondent was born on 4 September 1979 and was accordingly aged approximately 18 years at the time of the commission of the two offences, and is now aged 19 years. He was born in Mauritius and came to Australia in 1988. His father teaches English as a second language at a high school and his mother is a high school teacher/librarian. He has an older sister and a younger brother and the evidence was that he lives in a stable family environment.

11    In junior high school he was apparently a good student and an excellent basketball player, but in Year 10, in 1995, he sustained an injury to his left knee necessitating a knee reconstruction in October 1995, which brought an end to his prospects of any future career or enjoyment of basketball. At about this time the family moved house and the respondent changed schools for Year 11.

12    During Year 11 he was introduced to drugs, apparently marijuana, which he began to use in an experimental fashion at weekend parties, but it escalated to smoking on a daily basis and in addition his use of marijuana was partly to alleviate his depression at not being able to play basketball. This drug use led to truanting and it affected his grades at school.

13    During Year 12 he spoke to the school counsellor, was referred for drug counselling, and he ceased using marijuana in mid to late 1997. But by this time he was behind in his studies and he did not sit for his Higher School Certificate at the end of Year 12 in 1997 because he felt he had not studied enough.

14    At the beginning of 1998 he again changed schools, with a view to repeating Year 12. As a new boy in a new school he was in a situation of making new friends. Unfortunately, he seems to have chosen the wrong ones. It was his association with new acquaintances at the new school that led to his involvement in these offences.

15    Following his arrest in March 1998 for the accessory offence, he resumed using marijuana, but the evidence is that after the arrest for the robbery he has not used it.

16    Particularly after his arrest he applied himself more enthusiastically to his studies and achieved good results in the half-yearly report in 1998. He topped the class in 2-Unit Mathematics in Society and Legal Studies. At the same time he was third out of a class of twenty in Modern History and fourth out of a class of forty-four in 2-Unit General English. He was also first out of two in French and third out of twenty-six in General Studies. However, the French result may be largely due to his background and the fact that I presume it was the primary language used at home.

17    He gave evidence expressing his remorse for the offences, particularly for the trouble caused to his family and the trauma caused to the shopkeeper, and said he no longer associated with his co-offenders from either of the offences. His evidence was corroborated so far as is relevant by his father.

18    Yann Legrand, the principal in the accessory offence, was dealt with by his Honour Judge Dodd in the District Court in respect of two armed robberies, including the one at the Pizza Hut at Woodcroft. In respect of each matter sentence was deferred on his entering into a recognisance to be of good behaviour for a period of three years, the recognisance to be subject to certain conditions.

19    The other persons involved in the robbery of Mr Izci were dealt with in the Children's Court. Ricky Pass, the person who actually carried out the robbery with the respondent and carried the replica pistol, was ordered to perform 200 hours community service and ordered to participate in counselling. Issa was dealt with for receiving and conceal serious offence and was placed on a 12 months good behaviour bond. Bonney was sentenced as an accessory after the fact to armed robbery and placed on probation for 18 months.

20    Although her Honour recognised the authorities to the effect that, except in the most exceptional circumstances, persons who commit armed robberies should receive sentences involving at least some period of full-time custody, she considered that in all the circumstances, having regard in particular to the respondent's excellent prospects of rehabilitation, that this was one of those exceptional cases and imposed the sentences to which I have referred.

21    This Court has on many occasions emphasised the seriousness of the offence of armed robbery: R v Readman (1990) 47 A Crim R 181 at 184-5, an offence for which Parliament has prescribed a maximum penalty of twenty years. With these matters in mind, the Court has further said that, save in exceptional circumstances, persons who commit this offence must receive full-time custodial sentences: eg, R v Roberts (1994) 73 A Crim R 306, R v Maddocks (CCA - unreported - 25 November 1993), R v Wright (1997) 93 A Crim R 48.

22    This principle has now been authoritatively restated by a Bench of five members of this Court in the guideline judgment of R v Henry and Ors [1999] NSWCCA 111, particularly at [113].

23    A matter of particular concern in the present case is that the armed robbery in company offence was committed whilst the respondent was on bail for the accessory after the fact and the possess firearm offences, and the courts have said many times that persons who commit further offences whilst on bail, which is a form of conditional liberty, should receive "severely deterrent" sentences for such offences: R v Richards (1981) 2 NSWLR 464.

24    Not only is it necessary to have regard to this principle of sentencing in the present case, but the commission of the armed robbery in company after being interviewed, charged and released on bail for the accessory offence, makes it very difficult to accept the submission that the armed robbery in company was a one-off incident committed at the prompting of others, possibly as a fresh experience or youthful prank, with a sense of bravado or risk-taking, the seriousness of which was not realised. After being charged with the first offence, this respondent must have realised that anything remotely resembling armed robbery was to be avoided at all costs and that involvement in such an enterprise could put his liberty at jeopardy.

25    Another aggravating factor in the offence was that the victim was particularly vulnerable, being the proprietor of a small general store doing business at night. R v Tocknell (CCA - unreported - 28 May 1998).

26    On behalf of the Crown, our attention was drawn, firstly, to a number of what was said to be aggravating factors present in this case; namely, that the offence was planned and premeditated; the victim was particularly vulnerable, being the proprietor of a small general store; both robbers wore balaclavas; the proceeds of the robbery were substantial, being over $3000 and the offence was committed whilst on bail. I have already dealt with the vulnerability of the victim and the fact that the offences were committed whilst on bail.

27    Although there was some degree of planning, as I suspect there must be for any armed robbery, it appears to have been cursory and only involving a matter of hours before it was carried out. The wearing of balaclavas or taking whatever money can be located are not really unusual features to armed robberies, but are factors which make the offence objectively serious in every case.

28    In relation to the matters which the Judge found amounted to exceptional circumstances, there were the respondent's youth, his previous good character, his prospects of rehabilitation and the question of parity. Matters that were not specifically referred to in her Honour's Remarks on Sentencing but which were also relevant included the destruction of his sporting ability and his difficulty in coping with that, the change of school and the search for new friends in his new environment. There was convincing evidence of the respondent's prospects of rehabilitation, as demonstrated by his subsequent progress at school, progression to university and the various reports that were available before her Honour.

29    I turn now to consider the other two matters of his youth and the question of parity with his co-offenders. It is well-recognised that in dealing with young offenders, questions of general deterrence are of less importance than in the case of older offenders and the rehabilitation of the offender is given a greater significance. This principle has recently been reaffirmed in R v Tran [1999] NSWCCA 109 at [9 - 10], one of the cases dealt with at the time of the guideline judgment of R v Henry earlier referred to. See also R v Tocknell supra and R v Farah (CCA - unreported - 11 December 1998). But this respondent was aged 18½ when the offences were committed and the principle is more commonly applied to offenders younger than that, and it is not applied to offenders who commit crimes of the nature normally committed by adults, such as armed robbery: see R v Pham (1991) 55 A Crim R 129 at 135 referred to in R v Tran at [10-11]. 30    In Maddocks, a case which bears some similarity to the present case although the respondent was a couple of years older, the Court found that otherwise similar circumstances to this did not amount to the "most exceptional" circumstances which would justify a non-custodial sentence, although in the exercise of its discretion the Court decided not to interfere in view of the progress in rehabilitation that had been made since the respondent had been dealt with in the District Court. 31    Another important case in this regard is R v Lattouf (CCA - unreported - 12 December 1996) which was another armed robbery case. It was also a Crown appeal and the respondent was a single man aged nineteen residing with his family, which was described as warm and caring, and he had a good record of employment. 32    In giving judgment, Mahoney ACJ, reaffirmed the seriousness with which this Court treats armed robbery and he reiterated that it is only in the most exceptional circumstances that a non-custodial sentence will be imposed. 33    He pointed out that there is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it. But his Honour went on to refer to the paramount objective of achieving justice in the individual case and said at 7-8:

"But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest. It has to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly this is so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person."

34    The appeal was dismissed, although the judgments of the different members of the Court reflected some variation in thinking as to how that result should be achieved. 35    Sentencing judges must be vigilant to ensure that they do not accept uncritically at face value all submissions to the effect that the person standing for sentence is "at the cross-roads", "has seen the error of his ways", "is at a turning point in his life", or "has excellent prospects of rehabilitation." Often such submissions have no justification in fact and are based on no more than wishful thinking, but there are exceptional cases where such submissions do have validity and the Court should be astute to recognise them. I believe this is such a case, even though, unlike Mr Lattouf, this respondent was not a first offender at the time of the commission of the more serious offence. 36    The other matter is the question of parity. These principles are not normally relevant to offenders who are dealt with under different regimes, as was the case here, the other offenders being dealt with in the Children's Court, but the sentences imposed on them are not, for that reason, entirely irrelevant: R v Broad (CCA - unreported - 13 March 1984) per Street CJ at 3. 37    However, when one looks at the sentences imposed on the other persons, one might see how this respondent, if sentenced to full-time custody, could be left with a justifiable sense of grievance: see Postiglione v The Queen (1997) 189 CLR 295 at 301. True it is that he was older than Pass, and true it is, it was not his first offence and he was on bail for the earlier offence at the time, but he does not appear to have been the instigator of the offence and it is not therefore irrelevant, in my view, to have regard to the sentence imposed on Mr Pass. 38 The respondent was about a year older than his co-offenders, but they were classmates at school and, having recently moved to the new school, the respondent was seeking new friends. Notwithstanding that the others were dealt with in the Children's Court under a different regime, it would be, in my view, difficult to justify a full-time custodial sentence in an adult gaol for this respondent, when whoever was apparently the instigator of the offence received a non-custodial sentence. 39 There was a lot of material before her Honour indicating positive prospects of rehabilitation, and although the weapon was intended to, and no doubt did, strike fear and terror into the victim, it was only a replica and there was therefore no prospect of the victim suffering any sort of gunshot wound. 40 Notwithstanding that the applicant was on bail at the time, her Honour was confronted with the stark choice between permitting the respondent to proceed to university in circumstances where the evidence indicated he was unlikely to offend again, and sending him to gaol, which is commonly referred to as the "university of crime". 41 Although this is very much a borderline case, for these reasons I consider the case is within the "most exceptional" type of case where a full-time custodial sentence was not necessary. 42 I should say, however, that even accepting that a non full-time custodial sentence was appropriate, I still regard the sentence as excessively lenient. For myself, I see no reason why, if a non full-time custodial sentence was appropriate, that in lieu of a community service order he should not have been sentenced to a lengthy period of periodic detention - say up to three years. But, in all the circumstances, and having regard to the fact that the Crown does not press any increase in a non-custodial sentence, the main issue, full-time custody or not, having been resolved in favour of the respondent, and having regard to his progress since he was sentenced, as disclosed by the affidavits that have been filed in Court today, I consider that the Court should not otherwise vary the sentence but, in the exercise of its discretion, dismiss the Crown appeal, and I so propose. 43 GREG JAMES J: I agree, and I agree with the reasons given by the presiding Judge for the order he has proposed. 44 SMART AJ: I also agree. 45 DUNFORD J: The order will therefore be that the Crown appeal is dismissed.

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