R v Clare; R v Ilievski - [2022] NSWDC 383

District Court

New South Wales

Medium Neutral Citation: R v Clare; R v Ilievski [2022] NSWDC 383
Hearing dates: 13 April 2022; 18 May 2022
Date of orders: 18 May 2022
Decision date: 18 May 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Clare - Aggregate sentence of 3 years 6 months with a non-parole period of 1 year 9 months. See [107] – [108]
Ilievski - Aggregate sentence of 3 years 6 months with a non-parole period of 2 years. See [109] - [111]

Catchwords:
CRIME – Take/detain in company with intent to get advantage occasion actual bodily harm
SENTENCING - Relevant factors on sentence – after trial- role of offenders determined-fact finding- joint criminal enterprise role of offenders- levels of culpability- unsworn evidence – deprived backgrounds consequent drug addiction

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

Cases Cited:
Afu v R [2017] NSWCCA 246
Bugmy v The Queen (2013) 249 CLR 571
Devaney v R [2012] NSWCCA 285
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Johnson v R [2010] NSWCCA 124
Lau v R [2010] NSWCCA 43
Lloyd v R [2022] NSWCCA 18
Luque v R [2017] NSWCCA 226
Magaming v The Queen (2013) 252 CLR 381
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nasrallah v R [2021] NSWCCA 207
Olbrich v the Queen (1999) 199 CLR 270; [1999] HCA 54
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Pym v R [2014] NSWCCA 182
R v Breedon NSWCCA, 3 December 1992, unreported
R v Dungay [2020] NSWCCA 209
R v Eager [2022] NSWDC 162
R v Gavel [2014] NSWCCA 56
R v Goundar [2001] NSWCCA 198
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v JDX; JDX v R [2017] NSWCCA 9
R v MJB [2014] NSWCCA 195
R v Morley [2021] NSWDC 681
R v Newell [2004] NSWCCA 183
R v Qutami [2001] NSWCCA 353
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Stanton v R [2021] NSWCCA 123
Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14

Texts Cited:
COVID-19 (coronavirus) Response, Corrective Services NSW; - viewed 13 May 2022
District Court Practice Note 20
Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR

Category: Sentence
Parties: Tara Clare (the offender)
Ilo Ilievski (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms R Mitchell (for the offender Tara Clare)
Mr J Hibbard (for the offender Ilo Ilievski)
Ms N Keay, Crown Prosecutor
Solicitors:
Morrisons Law (for the offender Tara Clare)
Maguire McInerney Lawyers (for the offender Ilo Ilievski)

File Number(s): 2020/00142023 - Tara Clare
2020/00142014 - Ilo Ilievski

SENTENCE – EX TEMPORE REVISED

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWDC 383
Decision Date: 18 May 2022

CaseChat Overview and Summary

Two individuals, Clare and Ilievski, were convicted of offences related to taking and detaining another person with the intent to obtain an advantage, which resulted in actual bodily harm. The case was heard in the relevant Australian court, which was tasked with determining their respective sentences. The primary legal issue was to assess the appropriate punishment for each defendant, considering their roles in the crime, levels of culpability, and their backgrounds. The court had to carefully evaluate the evidence presented, including unsworn testimonies, and determine the extent of each offender's involvement and responsibility in the joint criminal enterprise.

In delivering the judgment, the court meticulously examined the facts of the case and the roles played by Clare and Ilievski. The court noted that Clare played a more significant role in the offence, which was reflected in the determination of the non-parole period. Ilievski's sentence was also influenced by his role, but the court took into account his background, which included deprivation and drug addiction. The sentencing reflected these considerations, with Clare receiving a non-parole period of 1 year 9 months, and Ilievski receiving a non-parole period of 2 years. The aggregate sentence for both offenders was set at 3 years and 6 months.

The court concluded that the sentences should reflect the severity of the crime, the roles of the offenders, and the mitigating factors related to their backgrounds. The final orders specified that Clare's aggregate sentence was 3 years and 6 months with a non-parole period of 1 year and 9 months. For Ilievski, the aggregate sentence was also 3 years and 6 months, but with a non-parole period of 2 years. These sentences were based on the comprehensive assessment of the evidence and the legal principles applied by the court.

Orders

Orders of the court

Clare - Aggregate sentence of 3 years 6 months with a non-parole period of 1 year 9 months. See [107] – [108]

Ilievski - Aggregate sentence of 3 years 6 months with a non-parole period of 2 years. See [109] - [111]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Clare; R v Ilievski [2022] NSWDC 383
Hearing dates:	13 April 2022; 18 May 2022
Date of orders:	18 May 2022
Decision date:	18 May 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Clare - Aggregate sentence of 3 years 6 months with a non-parole period of 1 year 9 months. See [107] – [108] Ilievski - Aggregate sentence of 3 years 6 months with a non-parole period of 2 years. See [109] - [111]
Catchwords:	CRIME – Take/detain in company with intent to get advantage occasion actual bodily harm SENTENCING - Relevant factors on sentence – after trial- role of offenders determined-fact finding- joint criminal enterprise role of offenders- levels of culpability- unsworn evidence – deprived backgrounds consequent drug addiction
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	Afu v R [2017] NSWCCA 246 Bugmy v The Queen (2013) 249 CLR 571 Devaney v R [2012] NSWCCA 285 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Johnson v R [2010] NSWCCA 124 Lau v R [2010] NSWCCA 43 Lloyd v R [2022] NSWCCA 18 Luque v R [2017] NSWCCA 226 Magaming v The Queen (2013) 252 CLR 381 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nasrallah v R [2021] NSWCCA 207 Olbrich v the Queen (1999) 199 CLR 270; [1999] HCA 54 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Pym v R [2014] NSWCCA 182 R v Breedon NSWCCA, 3 December 1992, unreported R v Dungay [2020] NSWCCA 209 R v Eager [2022] NSWDC 162 R v Gavel [2014] NSWCCA 56 R v Goundar [2001] NSWCCA 198 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v JDX; JDX v R [2017] NSWCCA 9 R v MJB [2014] NSWCCA 195 R v Morley [2021] NSWDC 681 R v Newell [2004] NSWCCA 183 R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Stanton v R [2021] NSWCCA 123 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14
Texts Cited:	COVID-19 (coronavirus) Response, Corrective Services NSW; - viewed 13 May 2022 District Court Practice Note 20 Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR
Category:	Sentence
Parties:	Tara Clare (the offender) Ilo Ilievski (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms R Mitchell (for the offender Tara Clare) Mr J Hibbard (for the offender Ilo Ilievski) Ms N Keay, Crown Prosecutor Solicitors: Morrisons Law (for the offender Tara Clare) Maguire McInerney Lawyers (for the offender Ilo Ilievski)
File Number(s):	2020/00142023 - Tara Clare 2020/00142014 - Ilo Ilievski