Nikoljic v WorkCover Authority

[2008] NSWDC 36

CITATION:	Nikoljic v WorkCover Authority [2008] NSWDC 36
HEARING DATE(S):	26 February 2008
EX TEMPORE JUDGMENT DATE:	26 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The appeal is dismissed and the orders of the magistrate are confirmed
CATCHWORDS:	Criminal law - Judgment - Severity Appeal - Obtaining a benefit by deception
PARTIES:	Kolja Nikoljic Workcover Authority
FILE NUMBER(S):	08/12/0114
COUNSEL:	A.C. Casselden (Respondent)
SOLICITORS:	Legal Aid Commission (Appellant) WorkCover Authority

JUDGMENT

1 HIS HONOUR: Kolja Nikoljic appeals against four sentences of imprisonment imposed by a magistrate after the appellant pleaded guilty to four counts of obtaining a benefit by deception. In relation to each of those counts there are associated forms 1 relating to other similar offences.

2 In overall terms, taking into account the four offences plus the four forms 1, the appellant defrauded insurers of the sum of $363,642.63. I have looked at the matter in overall terms at this stage because of Ms Rodger’s submissions, they being focused on the overall term imposed by the magistrate of imprisonment for four years and two months with a non-parole period of three years and two months.

3 The sentences imposed by the magistrate also should be looked at individually. For the first matter he received 289 days imprisonment, that being a fixed term. Identical sentences were imposed on the second and third matters. But on the fourth there was a sentence of 654 days imposed with a non-parole period of 289 days. All of those sentences were ordered to be served cumulatively.

4 The fact that the sentences for the first three matters are significantly less than the sentence for the final matter suggests that the magistrate has given effect of the principle of totality by reducing the sentences which would otherwise have been imposed for those matters. It would have been preferable for him to have imposed identical sentences on each count to reflect the identical criminality, subject to minor variations about the amount involved, and ordered that the sentences be served partially accumulatively. However, the approach which the magistrate took was open to him and there has been no suggestion that any error was made in that respect.

5 The offences were brazen. The offender registered completely fictitious businesses. As soon as the business is established, he obtained up to five workers compensation policies in relation to each business. Through those means, he had obtained fourteen workers compensation policies for businesses which did not exist. The next stage was that the appellant would then lodge a workers compensation claim under each of the policies. He or another person would attend at a doctor using a false name and then he would make a workers compensation claim in relation to the injuries supposedly observed by the doctor. The businesses were fictitious and so were the employees. Through these means the offender obtained more than $350,000. These were, thus, very serious offences involving ongoing, deliberate defrauding.

6 The offender is fifty-three years of age and has a reasonably lengthy criminal history. Most of those matters do relate to driving offences, but it is significant to see that there are other offences of dishonesty on his criminal history for which he received sentences of imprisonment.

7 Ms Rodger asked me to accept that the offender was remorseful. That is a difficult submission to make in view of the contents of the presentence report. Under the heading Attitude to the Offences this appears:

“Mr Nikoljic completely minimised his role in the current offences, blaming his co-offenders for organising the whole scheme and stating that his own involvement had been very negligible. The offender appeared to have no recognition of the antisocial nature of his offending conduct. He also did not appear to take any personal responsibility for his offending behaviour, either present or past.”

I reject the submission that he is remorseful.

8 Ms Rodger said also that he was not fully aware of the consequences of his actions. In this respect she relies upon a psychologist’s report. The psychologist diagnoses the appellant as suffering from post traumatic stress disorder, the initial stress coming when he was the subject of a robbery by violent criminals. However, there is little that I can see in the presentence report explaining why those suffering from post traumatic stress disorder, and in particular why this appellant, would be unable to recognise that the consequences of systematic defrauding are a significant breach of the law and the suffering of significant loss.

9 The next matter relied on by Ms Rodger was the plea of guilty entered by the appellant. That came only on the day that the matter was listed for hearing, although some short time earlier a plea had been indicated to WorkCover who were the prosecuting authority. It may be that there has been some delay in the appellant’s lawyers conveying to the prosecutor the intention of their client to plead guilty, but the discount that Ms Rodger was addressing is a discount for the utilitarian value of a plea, which is not affected by any delays in a person’s lawyer communicating an intention to plead guilty to a prosecutor. It is the utilitarian value which is taken into account, and that appears to have been done so adequately by the magistrate. It may be that the plea of guilty has other benefits such as an expression of remorse, but in this case I am not satisfied at all, even taking into account the plea of guilty as well, that the offender is remorseful.

10 There is one matter which Ms Rodger referred me to which is somewhat unusual. In the course of the robbery which I mentioned earlier the appellant shot and killed one of the would-be robbers. He was tried for murder, but acquitted. Nevertheless, the fact that he has killed a person who was trying to rob him has led to him serving his sentence in something of a state of fear. He is concerned that those who knew or are related to the person whom he killed might seek retribution from him whilst in custody. It may be necessary at some time in the future for the offender to serve his sentence on protection. I will take that matter into account. Whether he serves his sentence in protection or not, there is no doubt that the offender will do his time in custody harder than the rest of the prison population.

11 Ms Rodger also relied on the offender’s age. He is fifty-three. It has to be said that there are very few ages which are not the subject of submissions by defence lawyers. There is nothing particularly significant about someone being fifty-three. He is not elderly, nor is he young. I do not regard his age as significant at all.

12 Ms Rodger addressed me about some similar cases, or cases which she said were similar. Without me going through them, Ms Rodger in this judgment, Ms Rodger submitted that the four years two months head sentence was slightly excessive. But I took that to mean that she could not say that the head sentence was outside the range appropriate to this sort of offence and this sort of conduct. When looking at the cases to which Ms Rodger referred me, there was no information given as to whether the offenders in those cases had blemish-free criminal histories or had been doing this sort of thing regularly in the past. As I have noted, the offender does have previous offences of this nature on his criminal history, for which he was sentenced to imprisonment.

13 Ms Rodger’s main submission, however, was directed to the issue of special circumstances. A calculation of the ratio of the non-parole period to the overall head sentence reveals that the former is 76 per cent of the latter. Ms Rodger relied on those factors which I have already identified as suggesting the need for an extended period of supervision on parole.

14 When I look at the offender’s criminal history revealing an absence of any willingness to take advantage of leniency which is offered to him in the past, when I look at the presentence report suggesting the response of the offender to supervision by the Probation and Parole Service, (and I include here this sentence, “overall Mr Nikoljic’s response to supervision has been very negative, with him having breached almost every order he has been placed on”), and when I consider the objective gravity of the offender’s conduct, I am satisfied that no less overall non-parole period is appropriate.

15 The appeal is dismissed and the orders of the magistrate are confirmed.

16 CASSELTON: Your Honour, does that include the restitution orders which were made below?

17 HIS HONOUR: Yes, of course. It includes the restitution orders made by the magistrate.

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