R v Nith Chav

[2016] NSWDC 220

District Court

New South Wales

Medium Neutral Citation:	R v Nith Chav [2016] NSWDC 220
Hearing dates:	5 September 2016
Date of orders:	16 September 2016
Decision date:	16 September 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence; special circumstances. For orders see [58]
Catchwords:	Armed robbery; use offensive instrument to prevent lawful apprehension.
Legislation Cited:	Crimes Act 1900 (NSW) ss 33B, 97 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 44
Cases Cited:	Mun v R [2015] NSWCCA 234 R v Caldwell [2016] NSWCCA 55 R v Hamilton (1993) 66 A Crim R 575 R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Nith Chav (Accused)
Representation:	Trial Advocate: J Smith (Crown) Counsel: N Steel (Accused)
File Number(s):	2013/00348144
Publication restriction:	Nil

Remarks on sentence

1. The offender is being sentenced in respect of the following two offences.

1. Armed robbery, pursuant to s 97(1) of the Crimes Act 1900. The maximum penalty is imprisonment for 20 years.

2. Use of an offensive instrument to prevent lawful apprehension, pursuant to s 33B(1)(a) Crimes Act 1900. The maximum penalty is 12 years imprisonment.

2. There is no standard non-parole period prescribed for either offence. The offender has also asked that a further offence be taken into account on a Form 1, namely armed robbery pursuant to s 97(1) of the Crimes Act 1900.

3. The offender was committed for trial on the first offence of armed robbery listed above on 9 September 2014. This trial was listed to commence on 11 May 2015, however he entered the plea of guilty on 15 May 2015 before a jury was empanelled. He is therefore entitled to a discount on sentence in respect of that matter for his plea of guilty, which his counsel acknowledged should be 10 per cent.

4. The offender was found guilty in respect of the second offence pursuant to s 33B(1)(a) of the Crimes Act 1900 on 13 April 2016 after a trial by judge alone.

5. The offender has been in custody since his arrest on 19 November 2013.

The sentence hearing

6. The sentence hearing took place on 5 September 2016. The Crown bundle (Exhibit A) contained a statement of agreed facts in respect of the armed robbery offence, which was committed in company with a Mr Choi Kia Tang. Mr Tang was found guilty after a trial on 25 November 2015. The armed robbery took place at the “Meet Fresh” restaurant in Haymarket, at approximately 11:40pm on Monday 18 November 2013. CCTV at the restaurant showed the offender and his co-offender enter the premises and approach the supervisor at the cash register. The co-offender held a machete to the supervisor’s throat and caused a small laceration to the left side of his neck. Both offenders demanded money to be taken from the cash register.

7. Whilst in the restaurant, the offender demanded a wallet from a customer which contained $400.00 cash. In doing so, the offender held a knife to the back of the customer’s neck.

8. The offender and his co-offender then took the contents of two cash registers in the restaurant, and ran from the restaurant to a car which was parked in a nearby alleyway. They were observed by two security guards from a nearby venue, and the offender was observed to drive the car away.

9. Police were called immediately and investigations revealed that the vehicle was registered to the offender’s de facto partner, and her residence was placed under surveillance.

10. At 1:49am on 19 November 2013 the offender arrived at that residence driving the vehicle. What occurred in the car park of those premises led to him being charged with the offence pursuant to s 33B(1)(a) of using an offensive weapon to prevent arrest.

11. In finding the offender guilty, I made the following findings of fact:

1. The offender deliberately reversed his vehicle towards a police constable in the car park.

2. In the circumstance, by rapidly reversing the vehicle, he was reckless as to the consequences of doing so.

3. He did so with the intention of preventing his lawful apprehension by reversing the car.

4. He endeavoured to conceal money that was stolen under the driver’s seat of the vehicle.

12. The co-offender, Mr Tang, was sentenced on 24 April 2016 by his Honour Judge Graham. He was sentenced to a term of imprisonment on the charge of armed robbery of 4 years 6 months and a non-parole period of 2 years. He was also sentenced for an offence of armed robbery which occurred whilst the co-offender was on bail for the armed robbery offence of 18 November 2013. The subsequent offence occurred on 16 April 2015 and the sum stolen was $100.00. On that robbery, he was sentenced to a fixed term of 2 years 3 months to be served partly concurrently with the previous sentence. The total sentence was 5 years and 6 months with a non-parole period of 3 years.

13. Exhibit A contained the criminal antecedents of the offender. He had a number of drug related offences dealt with in the Children’s Court in 1999 and 2000. In 2001 and 2002 he had a number of offences of robbery armed with offensive weapon, and assault dealt with in the Youth Drug Court.

14. In September 2003 he was sentenced in the District Court for robbery armed with an offensive weapon for which he was sentenced to a total 3 years imprisonment, with a non-parole period of 1 year.

15. Since 2008 the offender had a number of traffic offences, however, on 10 February 2014 he was convicted of drive vehicle under the influence of alcohol and imprisoned for 3 months.

16. Exhibit A also included the ERISP interview of the offender on 19 November 2013. In that interview he denied any involvement in the armed robbery and denied reversing his car towards police officers in an attempt to prevent his lawful apprehension.

17. Exhibit A also contained the Remarks on Sentence of Judge Graham in respect of Mr Tang, a report from Dr Kerri Eagle, forensic psychiatrist, dated 12 April 2016, in respect of Mr Tang, and a pre-sentence report relating to him.

The offender’s evidence

18. The offender tendered a report from Ms Ruth Allen, Psychologist, dated 29 June 2016 (Exhibit 1). He also tendered a letter from his sister, Ms Chantha Chav (Exhibit 2) which set out her observations as to his remorse, and his motivation to set an example for his children upon his release from custody.

19. The report from Ms Allen set out the offender’s family background. He is the second son of four children and was born in Thailand. His family moved to Sydney when he was four, and settled in Cabramatta. He had a good relationship with his mother, however, his father had an alcohol problem and there was domestic violence. He became involved in drug use at school as a result of peer pressure. He left school in year 9 after repeated truancy and spent some time in juvenile detention. He did not work until he was 23 years of age. At about that time he was released from a custodial sentence and he formed a relationship with the mother of his two children, who are now aged 7 and 4 years. That relationship had broken down as a result of his arrest for the subject offences.

20. The offender had begun smoking cannabis and using heroin and ice at age 16. Prior to his remand in custody he had been on a heroin replacement program and had ceased heroin use, however, his use of ice had escalated. He has, however, been drug free throughout his remand in custody.

21. After his release from custody in 2003 he had tried to change his life and had obtained regular employment. Unfortunately, his use of ice escalated to a daily use. The author of the report noted that the offender had said, “I feel miserable, embarrassed”, about his involvement in the armed robbery.

22. On assessment, he was shown to have an overall cognitive function on the borderline range of intellectual disability. He was also placed in the high-moderate group for risk of re-offending and his treatment needs were identified as relating to anti-social personality, substance abuse, and anti-social associates.

23. Personality testing demonstrated a profile within the significant range on the measure of schizoid, depressive, anti-social, dependant, and avoidant patterns. He was an individual who was inherently conflicted and had an increased risk of mood disorders and substance dependence.

24. His testing was consistent with a clinical assessment of him suffering major depression. He was now 32 years of age, and would benefit from counselling and advice in respect of his drug and alcohol issues, and to assist him obtaining employment in the future. The author was of the opinion that he may benefit from a prolonged period of supervision and monitoring upon his release from custody.

The Crown submissions

25. The Crown submitted that in respect of the armed robbery offence, it was an aggravating circumstance that the offence occurred in company. Further, the offence was committed for financial gain, which is also an aggravating feature pursuant to s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”).

26. The Crown submitted that the offence was more serious than that contemplated in the guideline judgement of R v Henry (1999) 46 NSWLR 346 (“Henry”), as the offender was older, namely 28 years, and had a previous conviction (in 2003) for a similar offence, the offence was committed in company, and also involved some planning. Like Henry, there was a late plea of guilty here.

27. The Crown characterised the offence of using an offensive instrument to prevent lawful apprehension as serious offending, referring to R v Hamilton (1993) 66 A Crim R 575. In respect of the objective seriousness of the offending, the Court would have regard to the finding that the offenders’ actions were reckless, that the instrument in question was a motor vehicle being driven within a confined space, and that the offender must have known that police officers were in the vicinity. Therefore it was submitted that the offending lay within the mid-range for an offence pursuant to s 33B of the Crimes Act.

28. The Crown submitted that the expressions of remorse reported by Ms Allen, and outlined in the letter from the offender’s sister, should be viewed with some caution by the Court, relying on Mun v R [2015] NSWCCA 234. Also, as Ms Allen had assessed him as being in the high-moderate group for risk of reoffending, it was submitted that caution is required in assessing his prospects of rehabilitation. Ms Allen had recommended treatment to assess his substance dependence, anti-social attitudes and associates to reduce the risk of reoffending.

29. On the question of parity, the Crown submitted that the co-offender had a more serious criminal history than the offender, and was also on two section 9 bonds at the time of the armed robbery offence. His antecedent criminal history and his diagnosis of PTSD resulting from previous custodial experiences also differentiated the subjective matters relating to the co-offender. The fact that the co-offender appears to have been institutionalised and to have developed serious drug and mental health issues from his earlier incarceration was also a highly relevant subjective matter which distinguished him from the offender on the question of parity.

The offender’s submissions

30. Learned counsel for the offender acknowledged that the offender was beyond the range of sentencing outlined in the guideline judgment of Henry because he was not a young offender, and had a previous criminal history for similar offences, namely the armed robbery offence in 2003. Although he had matters of a like nature in 2001 and 2002 that were dealt with in the Children’s Court, his criminal antecedents were otherwise made up of minor driving and drug related matters. It was also conceded that this offending was more serious than the guideline judgment in that it involved robbery in company.

31. It was submitted that the role of the co-offender in the armed robbery was more significant than that of the offender. The co-offender had used a machete, and placed it at the throat of the restaurant supervisor, whereas the offender had used a knife.

32. It was further submitted that there was a limited degree of planning here. The evidence established that the knife used by the offender was already in the car. It was conceded that the offender and co-offender had driven from Liverpool, and had parked the car in a laneway nearby.

33. In respect of the aggravating feature of financial gain, it was submitted that in the guideline judgment of Henry, the Court had taken into account as a factor the small amount of money taken. Here, the amount of $2,000.00 approximately was also a relatively small amount. The Court should exercise caution in taking into account financial factors in the sentencing process so as to avoid double counting.

34. In respect of parity of sentencing, the offender submitted that the co-offender had a worse criminal history as an adult than the offender, and that the co-offender was on two section 9 bonds for similar offences of stealing from the person at the time of this offence. Further, whilst he was on bail on remand for this offence, he had committed a further offence of robbery pursuant to s 94. Also, the co-offender had not pleaded guilty, although counsel accepted that the offender was entitled to the minimum 10 per cent utilitarian discount upon sentencing for his plea of guilty. This was on par with the guideline judgement in Henry.

35. It was submitted that the Form 1 offence of armed robbery concerned a patron who was dining in the restaurant, and therefore the offending had taken place simultaneously with the armed robbery. It was submitted in those circumstances there should be no accumulation on sentence or extra weight given to the Form 1 offence.

36. Learned counsel submitted that the offender should be entitled to some leniency given that there were some 10 years between his last significant offending and the current offence. He therefore should be sentenced in a way which is comparable with the co-offender on the armed robbery offence, and possibly with a shorter term of imprisonment.

37. In respect of the offence pursuant to s 33B(1)(a) of the Crimes Act, counsel submitted that the objective seriousness of the offending was at the lower end of the range. It was spur of the moment or spontaneous offending borne of the offender panicking. Further, his driving was reckless; it was in a different category from offences involving deliberate driving towards police officers. The offending was also very connected to the armed robbery, which provided the reason for the offender to panic. In those circumstances counsel submitted that the Court consider wholly concurrent sentencing, or some moderate accumulation having regard to the principal of totality.

38. In respect of the offender’s subjective factors, counsel submitted that he had reasonable prospects of rehabilitation. He had been drug free since being in custody and notwithstanding that he had been characterised as a high to moderate risk of reoffending, substance abuse was behind his offending and would affect any risk assessment. It was submitted that he had the capacity not to engage in criminal conduct if he remained drug free. He is now 31 years of age and was highly motivated to rehabilitate himself for the sake of his two children.

39. Counsel submitted that the offender would benefit from a long period of supervision by Probation and Parole in respect of his drug and alcohol abuse and therefore a finding of special circumstances should be made pursuant to s 44(2) of the CSPA. He was aware of the impact of his offending on his life and had suffered a great loss in terms of the loss of his family, as the result of his current offending. He therefore had good motivation to rehabilitate.

40. Counsel also submitted that the Court should take into account that he had expressed some remorse for his criminal conduct. He described himself as “miserable and embarrassed” for his offending. He had, during his trial, expressed remorse for his participation in the armed robbery, and his sister’s letter (Exhibit 2), demonstrated his remorse.

41. Finally, it was submitted that as the offender had now served 2 years and almost 10 months in custody since his arrest, it was open to the Court to impose a sentence which would involve him being in custody for the time already spent in custody to date.

Crown submissions in reply

42. In reply the Crown conceded that a finding of special circumstances pursuant to s 44(2) of the CSPA was open to the Court. The Crown emphasised the need in the sentencing process to impose an appropriate sentence which showed some accumulation. Ultimately, it was submitted that the principle of totality would lead to a sentence longer than the time already served.

Determination

43. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

44. In the guideline judgment of Henry, supra, Spigelman CJ at [162] identified the category of case upon which the guideline was based. It involved the following features:

1. Young offender with no or little criminal history

2. Weapon like a knife, capable of killing or inflicting serious injury

3. Limited degree of planning

4. Limited, if any, actual violence, but a real threat thereof

5. Victim in a vulnerable position such as a shopkeeper or taxi driver

6. Small amount taken

7. Plea of guilty, the significance of which is limited by a strong Crown case.

45. The Court identified a range of sentences for such a case of 4-5 years for the full term, with aggravating and mitigating factors justifying a sentence above or below the range. At [170] Spigelman CJ said as follows:

“In addition to factors which may arise in any case, for example, youth, offender’s criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail et cetera, a number of circumstances are particular to the offence of armed robbery. These include:

(i) Nature of the weapon

(ii) Vulnerability of the victim

(iii) Position on a scale of impulsiveness/planning

(iv) Intensity of threat, or actual use of force

(v) Number of offenders

(vi) Amount taken

(vii) Effect on the victim(s).”

46. The guideline judgment also took into account a guilty plea of limited value. That should be understood to involve a late plea of guilty for the purpose of the application of the guidelines.

47. It is clear, as was conceded by counsel, that the offending here is more serious criminal conduct, given that the offender was 28 years of age at the time of the offence, and had a previous conviction for armed robbery. Given the aggravating factors here, namely that the offence occurred in company, and was committed for financial gain, the objective seriousness of the offending was, in my view, within the mid-range of offences pursuant to s 97(1) of the Crimes Act.

48. Although the offence on the Form 1 occurred at the same time during the armed robbery, it also constituted serious criminal offending and must be given some weight in the sentencing process.

49. Further, I am not persuaded that the offending was either opportunistic or spur of the moment. Rather, there was some planning involved by both offenders; they had driven from Liverpool into the city and parked their vehicle in a laneway close to the restaurant where the offences took place so as to ensure their getaway. The co-offender had armed himself with a machete, and the offender with a knife.

50. The offender would not be entitled to any leniency on the basis of his criminal history. He had three similar offences, albeit the last of those was some 10 years prior to this offence. I accept, however, that his criminal record was not as serious as that of his co-offender, and that will be taken into account in the application of the principles of parity in sentencing.

46. The objective seriousness of the offending in respect of the offence pursuant to s 33B(1)(a) has to be assessed in light of the Court’s finding that the offender was reckless in his driving of the motor vehicle, and therefore his conduct did not amount to a deliberate intention to drive the vehicle towards the arresting police officers. Notwithstanding that, the offensive instrument was a motor vehicle, and therefore capable of causing serious injury or death. I accept counsel’s submission that his conduct was borne of panic, and having regard to all of the circumstances I assess the objective seriousness of the offending as just below the mid-range of an offence pursuant to s 33B(1). It still, however, constituted serious criminal conduct. Having pleaded not guilty, the offender at no time has demonstrated remorse or contrition, or accepted responsibility for his criminal conduct. Again, he is entitled to no leniency based on his criminal antecedents. I accept the Crown submission that as the offender has given no sworn evidence, statements of remorse given to Ms Allen should be treated with considerable caution and given little, if any, weight – see Mun v R [2015] NSWCCA 234 at [36].

47. The offender’s criminal conduct was clearly borne of his addiction to ice. He had been taking illicit drugs since the age of 16, and I accept the opinion of Ms Allen that he would benefit from extended supervision in helping him come to terms with his drug and alcohol addiction. He is now aged 32 years and professes to be highly motivated to overcome his drug addiction, and contends that he has been drug free since he has been in custody. I find therefore that special circumstances are made out pursuant to s 44(2) of the CSPA, and that the usual ratio between any head sentence and his non-parole period should be varied.

48. I have taken into account the maximum penalty of 20 years imprisonment for the offence pursuant to s 97(1), and 12 years imprisonment for the offence pursuant to s 33B(1) of the Crimes Act 1900. These are guideposts in the sentencing process.

49. Having regard to the principles of parity in sentencing, I have paid close attention to the remarks on sentence of the sentencing judge in relation to the co-offender, Mr Tang. There are some distinguishing features. On the one hand, Mr Tang’s role was more serious in that he placed a machete against the neck of the restaurant supervisor to obtain money from the cash register, and his criminal antecedents were worse than that of the offender. On the other hand, he had suffered a post-traumatic stress disorder and related drug dependence having regard to his incarceration for a period of seven years as a young man on a charge of murder for which he was ultimately acquitted. Those matters were, in his case, held to be worthy of some leniency. However, he was on conditional liberty at the time of the armed robbery, which involved breach of two section 9 bonds, and subsequently, when he was granted bail on remand from this offence, he committed a further serious offence. He did not, however, have the benefit of a discount for a plea of guilty, as does the offender here.

50. I do not accept the submission made by learned counsel on behalf of the offender that the sentences for each offence should be served concurrently. In Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] Howie J said:

“[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences…. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

See also R v Caldwell [2016] NSWCCA 55.

56. I accept the Crown submission that in respect of the offence pursuant to s 33B of use an offensive instrument to prevent lawful apprehension, the Court should regard such offences extremely seriously. In R v Hamilton (1993) 66 A Crim R 575 at 581, Hunt CJ and CL stated that:

“It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task.”

57. I therefore intend to sentence you in respect of the offence pursuant to s 33B to a fixed term of 3 years imprisonment to date from 19 November 2013. In respect of the offence pursuant to s 97(1) I intend to sentence you to total period of imprisonment of 4 years, with a non-parole period of 2 years, to commence on 19 November 2014 and to expire on 18 November 2016. There will then be a balance of 2 years, to expire on 18 November 2018.

Conclusion and orders

58. I make the following orders:

1. You are convicted of the offence of using an offensive instrument to prevent lawful apprehension pursuant to s 33B(1)(a) of the Crimes Act 1900.

2. I sentence you to a fixed term of 3 years for that offence to commence on 19 November 2013, and expire on 18 November 2016.

3. You are convicted of the offence of armed robbery pursuant to s 97(1) of the Crimes Act 1900.

4. I sentence you to a non-parole period of 2 years imprisonment commencing on 19 November 2014 and expiring on 18 November 2016. There will be a balance of 2 years to commence on 19 November 2016 and expiring on 18 November 2018. The total term will be 4 years imprisonment.

5. Your parole eligibility date will be 18 November 2016.

59. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

60. I have certified that I have taken into account the matter on the Form 1.

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Decision last updated: 16 September 2016