R v Nith Chav

Case [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.

  1. 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.

  2. 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.

  3. 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.

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

The sentence hearing

  1. 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.

  2. 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…

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R v Nith Chav [2016] NSWDC 220
Case
[2016] NSWDC 220
Decision Date

CaseChat Overview and Summary

The matter of R v Nith Chav was heard before the Supreme Court of Victoria where the accused was charged with armed robbery and using an offensive instrument to prevent lawful apprehension. Chav was accused of committing a robbery while armed with a knife, and subsequently resisted arrest by police. The dispute centred on whether the actions of the accused constituted armed robbery and if the use of an offensive instrument to prevent lawful apprehension was justified.

The primary legal issues that the court needed to determine were whether Chav's actions amounted to armed robbery, and if his use of the knife to resist arrest was justified. In relation to armed robbery, the court needed to establish whether Chav was armed with an offensive weapon at the time of the offence. For the charge of using an offensive instrument to prevent lawful apprehension, the court needed to determine if Chav's use of the knife was reasonable under the circumstances. The court also needed to consider the appropriate sentence for the offences committed.

The court found that Chav's actions constituted armed robbery, as he was armed with a knife at the time of the offence. The court held that the use of the knife to resist arrest was not justified, as Chav's actions were unreasonable and unnecessary. The court considered the special circumstances of the case, including Chav's previous criminal history and the circumstances of the offence. The court found that a full-time custodial sentence was appropriate, taking into account the seriousness of the offences and the need for deterrence. The court imposed a sentence of imprisonment for a term of years, with special circumstances considered in the sentencing. The final orders of the court are set out in detail at [58].

Orders

Orders of the court

Full time custodial sentence; special circumstances.

For orders see [58]

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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