R v Nasovu; R v Muavou

[2021] NSWDC 214

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nasovu; R v Muavou [2021] NSWDC 214

Hearing dates:

27 May 2021

Decision date:

28 May 2021

Jurisdiction:

Criminal

Before:

Noman SC DCJ

Decision:

Sentence for Nasovu - Indicative sentences: Robbery at Hurstville: 2 years and 6 months imprisonment; Robbery at Narwee: 3 years imprisonment; Robbery at Penshurst: 3 years imprisonment.

Sentence of 4 years imprisonment with a non-parole period of 2 years and 4 months non-parole period to date from 27 October 2020. Release to parole 26 February 2023. This is a variation of the statutory ratio to 58% to give effect to the finding of special circumstances. Release to parole 26 February 2023.

Sentence is partially accumulated on the control order. Overall detention period of 4 years and 6 months with an overall non-parole period of 2 years and 10 months with a ratio of 62%.

Sentence for Muavou - Indicative sentences: Robbery at Narwee: 2 years and 6 months imprisonment; Robbery at Penshurst: 2 years and 6 months imprisonment.

Sentence of 3 years imprisonment with a non-parole period of 1 years and 9 months non-parole period to date from 30 July 2020. This is a variation of the statutory ratio to 58% to give effect to the finding of special circumstances. Release to parole 29 April 2022.

Catchwords:

SENTENCING – Robbery whist armed with an offensive weapon – in company – Parity – Special circumstances – breach of conditional liberty – drug use - remorse

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Category:

Sentence

Parties:

Regina (Crown)
Aporosa Nasovu (Offender)
Moses Muavou (Offender)

Representation:

Counsel:
Crown: Belcher
Nasovu: Subeska
Muavou: Webb

File Number(s):

Nasovu: 2020/125645; 2020/252966
Muavou: 2020/222840

Judgment

1. The offenders Aporosa Nasovu and Moses Muavou appear for sentence on offences of robbery whilst armed with an offensive weapon. Each offence is contrary s.97[1] Crimes Act. The offender Nasovu is before the court on three offences and the offender Muavou shares two of these offences.

2. The facts set out the circumstances of the offending. The robberies were captured on CCTV. I have had regard to the full facts and only recite them in summary.

3. 16 April 2020 - Nasovu: at 3.15pm the offender was wearing a face mask that covered his mouth and nose. He caught a taxi and en-route asked the driver to stop. He crossed the road and at 3.25pm he entered a bottle shop in Hurstville holding a knife. He demanded money from the employee more than once. He walked behind the counter and pointed the knife at the employee. $1220 was taken. He then sat on the counter and demanded cigarettes. He took cigarettes valued at about $2400. He then ran from the store and returned to the taxi before continuing to his original destination. He left a polo top behind containing his DNA. He was identified from the CCTV within the taxi. Police located clothing matching that in the CCTV from the robbery and cigarettes and money when executing a search on 27 April 2020.

4. The robbery, committed alone, involved a robbery on a vulnerable victim. A reasonable amount was stolen. I have had regard to the nature of the weapon being a knife. The offender had the knife and a facemask with him suggesting some forethought. There was limited sophistication.

5. This offence falls towards the lower end of mid-range.

6. 20 April 2020 - both offenders and Tevita Ratucadre: This offence occurred at the service station with a sole employee. At 3.54am the co-offender obtained access to the locked store. Once allowed inside he pulled his balaclava on. The offender Nasovu ran in wearing a face covering and carrying an axe or hatchet. The offender Muavou remained at the front holding the sliding doors open. The offender Ratucadre produced a knife and yelled for the employee to open the inner security door. The offender Nasovu, who was wearing gloves, entered this area holding the axe and he accessed the cash register. $350 was stolen. The offender Ratucadre put a glove on and took cigarettes. The value of the cigarettes taken is not stated in the facts although the certified charge refers to 40 packets. The three ran from the store and left in a ride share car booked under an account linked to the offender Ratucadre.

7. The robbery, committed in company of three, involved a robbery on a vulnerable victim. In company is an aggravating feature. A reasonably small amount was stolen. I have had regard to the nature of the weapons being a knife and an axe. I have had regard to the offence and the role played by each. The offender Nasovu played a more significant role. That they were together, with weapons and balaclavas and gloves denotes some planning. A ride share car was pre-booked. There was limited sophistication.

8. This offence falls towards within mid-range with the offender Muavou sitting below the offender Nasovu.

9. 25 April 2020 - both offenders and Tevita Ratucadre: all three were captured on CCTV loitering near the service station at Penshurst between 3.12am and 4.35am. Each was wearing face coverings and wearing gloves. They appeared to be watching the service station. After a customer left at 4.43am, which required the otherwise locked doors to open, the offender Ratucadre, armed with a claw hammer, ran into the store followed by the offender Nasovu, who was armed with the small axe. The offender Ratucadre pointed the hammer towards the employee. The offender Nasovu demanded to be let into the inner secure area. The offender Nasovu entered and commenced taking cigarettes. The offender Nasovu demanded the till and used his hammer to hit the counter. The employee handed across $350. The value of the cigarettes taken is not stated in the facts although the certified charge refers to 20 packets. The offender Muavou remained holding the doors open. The three ran from the store and left in a ride share car booked under an account of a friend of the offender Ratucadre at his request.

10. The robbery, committed in company of three, involved a robbery on a vulnerable victim. In company is an aggravating feature. A reasonably small amount was stolen. I have had regard to the nature of the weapons being a hammer and an axe. I have had regard to the offence and the role played by each. The offender Nasovu played a more significant role. They were within the vicinity for over an hour. That they were together, with weapons and balaclavas and gloves denotes some planning. A ride share car was pre-booked. There was limited sophistication.

11. This offence falls towards within mid-range with the offender Muavou sitting below the offender Nasovu.

12. Although the offender Muavou was employed at the time of offending, all offences are informed by the offending being for financial need as opposed to greed. This factor was taken into account in assessing each offence.

13. The offenders Ratucadre and Muavou were captured on a telephone intercept discussing the police interest. This is not admissible against the offender Nasovu.

14. Police executed search warrants.

15. On 30 July 2020 police searched the home of the offender Muavou. A knife and gloves were located. When arrested the offender denied any knowledge of the robberies.

16. On 27 August 2020 police searched the home of the offender Nasovu. The backpack, clothes and gloves were located. When arrested the offender denied any knowledge of the robberies. He declined to be interviewed.

17. The maximum penalty is 20 years imprisonment. This represents the Legislature’s assessment of the seriousness of the offence.

18. There were pleas of guilty in the Local Court. I intend to apply a reduction of 25% to each indicative sentence.

19. The offenders, now 20, were 19 at the time of offending and it follows that rehabilitation assumes greater significance. General deterrence and denunciation are of importance in sentencing for robbery offences.

The Offender Nasovu

20. At the time of offending the offender was subject to conditional liberty. He was on bail entered in 2018 for a Children’s Court matter. He breached bail by this offending. A breach of conditional liberty is a matter of aggravation as it reflects an abuse of the freedom granted by taking the opportunity to further offend.

21. The offender has a sole entry on his criminal history as a juvenile for an offence of sexual intercourse without consent. He received a control order that was imposed on 11 May 2020 whilst on remand for this offending. He has minor offences as an adult in 2019 that resulted in the imposition of fines. The offender’s antecedents do not operate to disentitle him to some leniency.

22. The offender relies upon a report of Kim Dilati, Consultant, Clinical and Forensic psychologist. Therein it is detailed that the offender’s parents separated when he was aged 4. His father was a harsh disciplinarian and his mother experienced mental health issues. The offender described family discord within a happy childhood. An exception to this is an incident of a personal nature that occurred to him in primary school. He described periods of financial hardship and otherwise unknown offending. He was involved in sport and the church. He left school in year 11 and worked as a labourer. He was not working at the time of offending. His mother died when he was aged 19.

23. The offender described his drug and alcohol use much of which presents as recreational. He did use methamphetamine regularly but not daily in a period close to the offending when he was aged 20. From other details in the report this was before remand. In custody he illicitly used buprenorphine.

24. He advanced he used Xanax and methamphetamine before the first robbery, alcohol and methamphetamine before the second robbery and methamphetamine, cocaine and alcohol prior to the third robbery. He did not believe his substance use impacted his decision making. The psychologist offers an opinion of the role they may have on impulsivity and risk taking. These were not impulsive or spontaneous offences. His substance abuse does not ameliorate sentence. To the contrary, it evidences the inherent risk attached to committing the offences he did with a weapon whilst under the influence.

25. Expressions of remorse are contained in the psychological report. I accept this as genuine remorse and also an indication of insight. I accept he has pro-social ambitions.

26. He is assessed in the psychological report as falling in the moderate risk for future violence. It is noted this is a dynamic risk.

27. I do not regard the disorders documented in the psychological report as causally connected to the offending. However, the aspects of disadvantage in the offender’s background do modestly mitigate the sentence that would otherwise be appropriate.

The Offender Muavou

28. The offender comes before the court as a person of prior good character and this entitles him to leniency. He is assessed in the Sentencing Assessment Report as falling in the medium-low risk of reoffending.

29. Expressions of remorse are contained in the character references and in the psychological report of Tim Watson- Munro. I accept this as genuine remorse and also an indication of insight.

30. The offender advanced he used cannabis and alcohol before the offences. He said he used cannabis before each offence which impacted on his judgement. He however said he accepted responsibility for his ‘stupid’ decision to participate. He told the author of the Sentencing Assessment Report he used alcohol and cannabis but neither daily.

31. The offender was employed briefly in the community and has sourced employment on remand. He has support in the community. He had and has a positive relationship with his mother. He father was not present during his childhood. He left school mid-way through year 12. He was involved in sport.

32. Mr Watson- Munro referred to depressive disorder. This is referrable to the current situation rather than the time of offending. It does not operate to ameliorate sentence. There is no suggestion it makes custody more onerous or that it invokes any De La Rosa considerations.

33. There is nothing in the offender’s background to warrant mitigation to the sentence that would otherwise be appropriate.

Parity

34. I am required to consider parity between offenders and to avoid creating a legitimate sense of grievance. They are of the same age. The offender Nasovu committed three offences as opposed to the two committed by the offender Muavou. For their shared offences he played a more significant role. He additionally has prior albeit limited offending and a breach of conditional liberty.

35. There are points to differentiate the offenders and to warrant different outcomes.

36. I have had regard to the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act 1999.

37. One of the purposes for which a court may impose a sentence on an offender is to recognise the harm done to the victim of the crime and the community. I do not have any victim impact statements. Even absent any direct statement I determine that being confronted by an armed offender, whether in company or alone, whilst working alone would be a frightening event.

38. Both offenders’ prospects of rehabilitation and of not reoffending are reasonable.

39. I have considered the offending against that in the Henry guideline. I have referred to the greater money in the first offence committed by the offender Nasovu and also that the second and third in time were committed in company. These are matters of distinction as against other similar characteristics. No offence was isolated.

40. Having considered all the possible alternatives I am satisfied no penalty other than imprisonment is appropriate.

41. I am required to consider accumulation and totality. The offences involved discrete acts on separate days albeit within a short period of time. Some accumulation is required.

42. I am also mindful that the offender Nasovu received a control order that resulted in him being detained in an adult gaol for 12 months from 11 May 2020. This means he was on remand on these offences solely from 27 April 2020 to 10 May 2020 or about 2 weeks, and then from 11 May 2021. This is for an offence committed as a juvenile, and for an offence unrelated in time and type to those for sentence.

43. I make a finding of special circumstances based on the need that each receive an extended period of support upon release to the community. This is the first adult gaol term. Both offenders have considerable support in the community. This will assist their reintegration. There will be allowance for accumulation and restricted COVID conditions.

44. The offenders are convicted.

Sentence

45. I intend to impose aggregate sentences.

46. In sentencing the offender Nasovu I nominate the following indicative sentences:

Robbery at Hurstville:   2 years and 6 months imprisonment

Robbery at Narwee:      3 years imprisonment

Robbery at Penshurst:   3 years imprisonment

47. Sentence will commence midway through his control order period, backdated further to allow for the additional pre-sentence days. It will commence on 27 October 2020.

48. The sentence I impose is one of 4 years imprisonment with a non-parole period of 2 years and 4 months non-parole period to date from 27 October 2020. This is a variation of the statutory ratio to 58% to give effect to my finding of special circumstances. Release to parole 26 February 2023.

49. I have not overlooked that this sentence is partially accumulated on the control order. This accumulation influences on the overall sentence and the overall ratio. The overall detention period of 4 years and 6 months with an overall non-parole period of 2 years and 10 months with a ratio of 62%.

50. In sentencing the offender Muavou I nominate the following indicative sentences:

Robbery at Narwee:      2 years and 6 months imprisonment

Robbery at Penshurst:   2 years and 6 months imprisonment

51. Sentence will commence from the date of remand being 30 July 2020.

52. The sentence I impose is one of 3 years imprisonment with a non-parole period of 1 years and 9 months non-parole period to date from 30 July 2020. This is a variation of the statutory ratio to 58% to give effect to my finding of special circumstances. Release to parole 29 April 2022.

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Amendments

26 July 2021 - corrected formatting and case name

Decision last updated: 26 July 2021