New South Wales District Court CITATION: R v Lee BOBROVIZKI [2008] NSWDC 164 HEARING DATE(S): 20 June 2008 JUDGMENT DATE: 20 June 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment with a non-parole period of twelve months and a head sentence of eighteen months. That sentence is to be served by way of periodic detention. CATCHWORDS: CRIMINAL LAW - Sentence - Robbery - Affray - Serious breach of the peace LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 PARTIES: The Crown Lee Bobrovizki FILE NUMBER(S): DC 2008/11/0184 COUNSEL: M Buscombe (Offender) SOLICITORS: NSW DPP Chalmers Marx SENTENCE 1 HIS HONOUR: The offender Lee Bobrovizki stands for sentence for an offence of robbery committed in the most disgraceful circumstances. He asks that when I sentence him for that matter I take into account an offence of affray arising out of the same incident. 2 The offender went to a takeaway food store one evening. Also in the food store were a number of other people. They had been out that evening. Everyone, presumably, was out to enjoy themselves. For reasons which are very difficult to understand, the offender decided to turn what should have been a pleasant evening into a violent one. 3 When later interviewed by police, the offender attempted to blame the victim for what later occurred but I reject that completely. There is nothing in the statement of the victim or the those who witnessed the offence to suggest that the victim did anything to provoke what later happened to him. Those statements were tendered before the court without objection. Mr Buscombe who appears for the offender at no stage suggested that the victim had in any way provoked his client. 4 So this is what the situation was inside the takeaway food store: a number of people were there ordering food. One of them was the offender. He became engaged in a conversation with a man by the name of Blake. He said, "Don't talk to me." When Mr Blake said, "Why can't I talk to you?" The offender became angry, leaning over Mr Blake and gesturing at him with his hands. He said, "You can't talk to me. Who do you think you are? You guys are giving me shit." 5 At this stage the offender went to the doorway of the takeaway food store and yelled to people outside. He later told police that what he was doing was getting his mates in to "smash" Mr Blake and that is exactly what happened. Two associates of the offender entered the takeaway food store. Despite attempts by those inside, not including the offender of course, to calm matters down, one of the offender's associates, a man by the name of Talbot, punched Mr Blake to the side of this face with a clenched fist. Mr Blake immediately hit the ground face down and was unconscious. 6 His arms were splayed out either side of his body with blood underneath him. The blood, as the offender later told police, was visible to him. Mr Blake was then kicked whilst he was lying unconscious on the ground although there is no suggestion that the offender was responsible. Mr Blake's friends attempted to protect him bravely from those intent on violence. 7 How did the offender respond to this? Well, he had succeeded in what he set out to do. He had got his associate in to "smash" Mr Blake and Mr Blake had been smashed. The offender responded by taking advantage of the fact that Mr Blake was helpless on the ground, unconscious by stealing his wallet. 8 Those present at the scene were clearly shocked at this callous behaviour. A Mr Barber said to the offender: "Mate, what are you doing? Don't steal his wallet. The bloke is unconscious. What the fuck are you doing? He is unconscious." 9 The offender took no notice of these sensible suggestions. Instead he took the victim's wallet. Why did he do it? As he later told police he wanted to buy two more cheeseburgers and get some more to eat. At this stage the offender and his associates ran from the takeaway food store. A short time later they were arrested by police. 10 The offender displayed absolutely no remorse when he was back at the police station being interviewed. Examples of his attitude can be found at question 212 of the ERISP where the offender said, "That guy deserves everything that comes to him." At question 272 he complains about the length of time that the police investigations are taking. At question 315 when the police say, as they routinely do, "Is there anything else you'd like to say?" The offender responded eloquently, "Fuck the police." 11 This is a very serious offence of robbery indeed. The best that can be said for it is it was an opportunistic offence. The Crown, somewhat surprisingly, went so far as to suggest that that circumstance alone put the offence in a category where objectively it was below the mid range. I reject that submission completely. Mr Blake was unconscious on the ground with blood clearly visible. For the offender to steal Mr Blake's wallet so he could get two more cheeseburgers shows a level of objective seriousness much greater than that which the Crown was prepared to concede. 12 When the offender, and those who are here in court to support him, reflect on the sentence I will later announce they should bear in mind that there is a fundamental principle of law which is that the sentence for an offence must reflect the objective gravity of an offender's conduct. This was very grave conduct indeed. One of the particular aspects that I should mention arises more as a result of the affray offence than the robbery offence. This offence represented a significant breach of the peace. Those present at the takeaway food store were no doubt shocked and frightened by the violence which they witnessed. 13 It is notorious amongst those who regularly practise in the criminal law that deaths resulting from a single punch, usually when one male hits another, are relatively common. I recently had to sentence a man for manslaughter after he, with a single punch, caused the death of another human being. I had occasion then to examine the sentences for such offences. And one thing which was obvious was that such offences were, as I have said, relatively common. 14 The offender should consider himself very fortunate that the physical injuries to Mr Blake appear to have been relatively minor, although, of course, he has suffered in many other ways because of the offender's conduct. When I say the offender's conduct, I of course am not suggesting that the offender struck Mr Blake at any time. The consequences for Mr Blake were set out in the victim impact statement tendered before me. They were entirely foreseeable. 15 The offender now says that he is sorry. He did not give evidence to that effect but instead relied on a letter apparently signed by him, tendered by Mr Buscombe. Other evidence suggesting that the offender was remorseful came in the form of evidence from his father, both written and documentary, and also other testimonials tendered on behalf of the offender. Quite why the offender was not prepared to himself express remorse in the witness box is beyond me. Nevertheless I am prepared to accept that he has accepted responsibility for his actions and acknowledged the injury that his actions have caused, and therefore prepared to accept that he is remorseful for what he did. 16 The offender is shortly to turn nineteen. He was eighteen and three months at the time of the offence. He lives with his father, his parents having separated when he was seven years old. At first he lived with his mother but then moved in with his father. His father says that upon reflection he should have spent more time with his son but was understandably concerned about his various business interests. 17 The offender has been diagnosed with Attention Deficit Hyperactivity disorder. The pre-sentence report suggests that his schooling was affected by his condition. Nevertheless he managed to complete his Higher School Certificate. He is now employed in a call centre, that job having apparently been arranged, since this offence was committed, through a friend of the family. 18 He has also seen a psychologist and a psychiatrist. The psychologist, Ms Ruth Osborne, says that she has observed a positive change in the offender's attitude and level of responsibility. There are prospects for the offender's future. Mr Buscombe said that there are reasonable prospects of rehabilitation. I am prepared to accept that although I do note that Mr Buscombe is not prepared to submit that the prospects for rehabilitation were good. Although that is, what I will call the cut-off point for the mitigating factor in s 21A(3)(h) Crimes (Sentencing Procedure) Act the fact the prospects for rehabilitation are reasonable is still a matter which operates in the offender's favour. 19 I am frankly unable to find that it is unlikely that the offender will not offend again in the future. Much will depend on the success of the counselling he undergoes in the future but I intend, through the sentence I will shortly announce, to deter the offender from future misbehaviour of a criminal kind. I intend to impose a sentence on the offender which will operate very much as a deterrent to him against committing further offences. 20 One matter I should mention concerns the situation of Mr Talbot, the man who actually struck Mr Blake. He was sentenced for assault occasioning actual bodily harm upon Mr Blake whilst in company. He received a sentence of imprisonment for that offence. I am frankly unsure as to the length of that sentence because the material provided by the Crown did not enable me to determine precisely what the sentence was. He appears to have a non-parole period of six months but what the head sentence was, I do not know. Nevertheless it was a period of full-time imprisonment. 21 Mr Talbot was on four bonds at the time of that offence. But it was also to be noted that the maximum penalty for the offence that he faced was seven years whereas the maximum penalty for the offence faced by the offender is twice that. 22 The offender has only one matter on his criminal history and that is a s 10 dismissal for an offence of possessing a prohibited drug. That offence was committed after this offence and involved his possession of a small quantity of cannabis. It is significant that there is no violence on his criminal history. 23 Mr Buscombe relied on sentencing statistics. I have looked at them but I do note the enormous range of outcomes for offences even when the search is narrowed to match the circumstance of this offender and this offence. In some cases sentencing statistics can be of particular assistance, but in this case they were of limited utility. 24 It appears that one explanation for the offender's conduct is that he had been drinking. There are suggestions to that effect both in what the offender said to police in his interview with them and the way he responded to them. I do not however regard that as a mitigating feature. People are required to remain non-violent when sober and they are required to act in a way which does not breach the law, when drunk. The fact that the offender had been drinking may explain some of what the offender did but it can scarcely excuse it. 25 There are special circumstances in this case, they relate to the age of the offender and the benefit which he could clearly obtain from further treatment with the psychologist. This is a matter where a period of imprisonment is required. As I said, it is a fundamental rule of sentencing that the sentence has to reflect the objective gravity of an offender's conduct. In my view no sentence other than that of a period of imprisonment would effectively meet that rule. However I am prepared for one reason and one reason alone to order that the sentence be served by way of periodic detention; that reason is due to the offender's age. Had the offender been older, even slightly older, the sentence I will now announce would have been served in full-time custody. 26 I am very confident that any further breaches of the law by the offender will result him going to gaol full-time. The offender is sentenced to imprisonment. I set a non-parole period of twelve months and a head sentence of eighteen months. That sentence is to be served by way of periodic detention. The offender is to report to the Parramatta Periodic Detention Centre at 8.30am on 28 June 2008 in order to commence serving his sentence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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