Dusan Pavicevic v The Queen [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Gray P,Refshauge,Ryan JJ
• Judgment Date: 22 October 2010
• Docket Number: No. ACTCA 15-2009
• Date: 22 October 2010

Between:

Dusan Pavicevic

Appellant

and

The Queen

Respondent

[2010] ACTCA 25

Judges:

Gray P, Refshauge and Ryan JJ

No. ACTCA 15-2009

No. SCC 10 of 2009

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW — appeal — appeal against asserted disparity in sentence with co-offender — parity principle — co-offenders preferably to be sentenced by same judge — appeal dismissed.

Lowe v The Queen (1984) 154 CLR 606

Postiglione v The Queen (1997) 189 CLR 295

R v JW [2010] NSWCCA 49

R v Pan [2005] NSWCCA 114

R v Swan [2006] NSWCCA 47

R (Commonwealth) v Kai Kong Li and Others [2005] NSWCCA 154

Counsel for the Appellant: Mr R Livingston

Counsel for the Respondent: Mr J White

ORDER

THE COURT ORDERS THAT:

• 1. The appeal be dismissed.

REASONS FOR JUDGMENT

THE COURT:

1 Dusan Pavicevic (the appellant) appeals against a sentence of eight years imprisonment with a non-parole period of five years that was imposed by Higgins CJ on 18 June 2009. The sentencing judge ordered that the sentence commence on 22 July 2008. The sole ground pursued on this appeal is that of disparity with the sentence imposed of his co-offender, Prasatphone Phimphisane, who was sentenced at the same time as he was.

2 In respect of the co-offender, Higgins CJ imposed a sentence of six years and six months imprisonment with a non-parole period of three years and three months.

3 The appellant and his co-offender were charged, and pleaded guilty to, an offence of aggravated robbery. The robbery took place at Campbell's Cash and Carry at about 11.45am on 19 July 2008.

4 The agreed statement of facts upon which the sentencing judge acted is set out:

Mr Dusan Pavicevic has pleaded guilty to a charge of aggravated robbery. The maximum penalty for this offence is 2500 penalty units, imprisonment for 25 years or both. Mr Pavicevic also wants the court to take into account the following additional offences;

• i) unlawfully confined another person [CC 2008/8220]

• ii) unlawfully confined another person [CC 2008/8221]

• iii) unlawfully confined another person [CC 2008/8222]

Mr Phimphisane has pleaded guilty to a charge of aggravated robbery. The maximum penalty for this offence is 2500 penalty units, imprisonment for 25 years or both. Mr Phimphisane also wants the court to take into account the following additional offences

• i) dishonestly without consent drive a motor vehicle belonging to another [CC 2008/9216]

• ii) unlawfully confined another person [CC 2008/8218]

• iii) unlawfully confined another person [CC 2008/8216]

• iv) unlawfully confined another person [CC 2008/8217]

Mr Pavicevic and Mr Phimphisane are friends with, or acquaintances of, Mr Benjamin Day. Mr Day from about 2 April 2008 until 19 July 2008 was employed by “Campbell's Cash & Carry Pty Ltd”, which is located at 6 Hume Place, Griffith in the Australian Capital Territory (ACT), as a casual forklift operator.

From about 16 July 2008 to about 19 July 2008 Mr Day resided at the Kingston Hotel, 73 Canberra Avenue, Griffith ACT. Mr Day had booked a room for a total of six nights (16 July – 22 July 2008) and when booking that room he had provided his details, a mobile phone number and had stated that he would be the only occupant of the room. Mr Day was allocated room 11.

At some point after 16 July 2008 Mr Pavicevic and Mr Phimphisane moved into room 11 at the Kingston Hotel and stayed there with Mr Day until about 19 July 2008.

On 18 July 2008 between about 6.25pm and 7.30pm a white 1995 Ford Econovan, registration (NSW) UBU586 belonging to Mr Andrew Laggner was stolen from the first level of the secure under cover car park at the Target building off Ainslie Avenue in the City. This vehicle was driven to an area near the Kingston Hotel.

Between about 7.00pm [on 18 July 2008] and about 3.45am on 19 July 2008, a white 1990 model Mazda E2000 van, registration (ACT) YUR 569 belonging to Mr Aaron Coventry was stolen from the Civic Pool car park on Constitution Avenue Reid in the Australian Capital Territory (ACT). This vehicle was driven to a car park near the Kingston Hotel.

On Saturday 19 July 2008, Mr Day was rostered to work at “Campbell's Cash and Carry” from 7.00am to 11.00am and, at some point prior to 7.00am Mr Day left the Kingston Hotel and went to work. After Mr Day went to work he contacted Mr Pavicevic using his mobile telephone. The telephone records of Mr Pavicevic and Mr Day show that between about 9.46am and 11.47am on 19 July 2008 Mr Day made 7 telephone calls to Mr Pavicevic and, Mr Pavicevic made two calls to Mr Day. The calls made between the two varied in times from between 21 seconds to 3 minutes 35 seconds.

At about 9.50am on Saturday 19 July 2008, Mr Pavicevic was observed by the weekend manager of the Kingston Hotel running through the alley way behind the hotel and [a] short time later he was seen placing a green environmental shopping bag and newspapers into the garbage hopper and then walking towards the direction of the rear of the Kingston Hotel.

Mr Pavicevic went to the dirt car park located between the Kingston Hotel and the Eastlakes Club car park and he was seen by the weekend manager standing at the rear of a white van, registration (ACT) YUR 569.

A short time later, the weekend manager of the Kingston Hotel saw Mr Phimphisane in a white Ford Econovan, registration (NSW) UBU 586 in the car park of the alley way at the rear of the hotel. Mr Phimphisane drove the vehicle out of the car park, into the alley way, towards Oxley Street. (CC 2008/9216)

At about 10.30am, Mr Pavicevic and Mr Phimphisane were seen near room 11. At that time Mr Phimphisane was kneeling on the floor in the corridor and Mr Pavicevic was walking into room 11.

A short time later Mr Pavicevic and Mr Phimphisane left the premises in the white Ford Econovan registration (NSW) UBU 586.

Police later executed a search warrant on room 11 at the Kingston Hotel and the following items were located:

• i) a hand drawn plan of “Campbell's Cash and Carry” which included the location of surveillance cameras, the “smoke cage” and “dispatch” area,

• ii) a “Gregory's Street Map” with a page marked with a Canberra Centre parking ticket. The page marked included the location of “Campbell's Cash and Carry” in Griffith ACT,

• iii) the Canberra Centre parking ticket had date / time of 18.07.08 / 19:28:35 which is consistent with the time of the theft of the Ford Econovan registration (NSW) UBU 586 on 18 July 2008,

• iv) medication in the name of Mr Pavicevic,

• v) a mobile telephone belonging to Mr Phimphisane,

• vi) an unconnected mobile telephone and Vodafone card,

• vii) a r?sum? in the name of Mr Day,

• viii) a wallet and identification belonging to Mr Phimphisane.

After Mr Phimphisane and Mr Pavicevic left the Kingston Hotel they drove to “Campbell's Cash and Carry” and arrived at about 11.35am. They approached the entrance of the building and as they did so they were told by an employee that they could not go in. Mr Phimphisane and Mr Pavicevic walked away from the building.

At about 11.45am on 19 July 2008 Mr Pavicevic and Mr Phimphisane returned and entered “Campbell's Cash and Carry” through the staff entrance. At that time the store was closed. The public entrance and exit had been locked, but the staff entrance adjacent to the public entrance had not been locked.

At the time they entered the premises Mr Pavicevic had his face covered with a black bandana, with a white pattern on it. He was wearing dark sunglasses and a black beanie, a black long sleeve hooded top, dark coloured long pants, black Dunlop Volley shoes and was wearing gloves similar to weight lifting gloves. He was carrying a long serrated kitchen knife with two tips. Mr Phimphisane also had his face covered with a black bandana. He was wearing dark sunglasses, a black beanie, a black long sleeve top, long dark pants and black Dunlop Volley shoes. Mr Phimphisane was carrying a large wide blade chef's knife.

When Mr Pavicevic and Mr Phimphisane entered the premises Mr Day was near the front of the premises.

At this time there were three other staff members still in the building, the manager Mr Peter Ashton (aged 47), Ms Ashley Shaw (aged 18), Mr Mark Moroney (aged 16).

Mr Pavicevic, Mr Phimphisane and Mr Day went to the office where Mr Moroney and Ms Shaw were located. Mr Pavicevic and Mr Phimphisane tied the hands of Mr Moroney and Ms Shaw behind their backs using long thick black cable ties.

Mr Pavicevic and Mr Day left the office and Mr Day called out to Mr Ashton. Mr Phimphisane remained in the office with the other staff members.

Mr Ashton came from the rear of the store and as he did so Mr Pavicevic said to Mr Ashton ‘ Do as you're fucking told and no one will get hurt. Get over here.’

Mr Pavicevic and Mr Day walked Mr Ashton to the office where the other staff members were being held. Mr Pavicevic tied the hands of Mr Day and Mr Ashton behind their backs with long black cable ties. Mr Day's hands were tied in order to hide from the other staff members his involvement in the aggravated robbery.

During this time Mr Pavicevic and Mr Phimphisane demanded everybody's phone, wallets and keys. Mr Day at this time stated he did not have a mobile phone.

Mr Phimphisane removed the keys, wallets and phones from the other staff members and he asked Mr Moroney and Ms [sic] Ashton for their PIN and account limits for their bank accounts while pointing the knife at them. Both provided these details in fear of being stabbed.

After receiving the phone, wallets and keys of the staff members, Mr Phimphisane said words to the effect of ‘ Don't go to the cops. We have your addresses and will hurt your families’.

Mr Pavicevic and Mr Day left the office and after they had done so Mr Pavicevic untied Mr Day's hands. They both went to the rear of...