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

1. The sentencing proceedings for Cheyne Morley, Benjamin Walker, Tara Clare, Ilo Ilievski and Lee Eager commenced some weeks ago. I heard submissions but was not able to finalise the sentences for various reasons, one reason being that Mr Ilievski was not present on the last occasion as he was in COVID isolation in custody. I was able to finalise the matter for Eager. Today, the continuing exigencies caused by the COVID pandemic, diary clashes, availability of court time, and availability of counsel meant that I was able to receive evidence on behalf of Ilievski and list that matter and Clare's matter so that they could be finalised today. The matters of Walker and Morley have been stood over.

Introduction

2. On 12 May 2020, the police received information that two men were being detained and assaulted, and that their families have been asked to either provide or help in the transfer of money. A police task force was rapidly assembled. Family members were spoken to, police went on the road looking for one of the men's Citroen van. Late in the afternoon, both men were spoken to by police. Both refused to co-operate. Both were arrested and charged with conceal a serious criminal offence. Soon after, both were informed that they were no longer under arrest. Both agreed to speak to police. One was unable to provide any information that night due to his state of intoxication. The other participated in a recorded interview. Both later made formal witness statements.

3. Police investigations continued that day and night. At about the same time the men were located, the Citroen van was seen and placed under surveillance. It was abandoned in an industrial area, but the Volkswagen (VW) station wagon that picked up its occupants was followed to a home in Cringila in southern Wollongong. Soon after it arrived, the VW left that location; it was followed to a serviced apartment complex in Towradgi in Wollongong's northern suburbs.

4. Police stopped the vehicle at the complex. Three of its occupants, Benjamin Walker, Tara Clare, and Ilo Ilievski were arrested. Each exercised their right to silence. The fourth, Cheyne Morley, was spoken to by police, but police at the scene were directed not to arrest him; subject of an earlier judgment: R v Morley [2021] NSWDC 681. He was arrested the following day.

5. Each accused was charged with two counts of detain with intent to obtain an advantage in circumstances of aggravation and special aggravation: s 86(3) Crimes Act 1900. The circumstance of aggravation pleaded was that when each offence was allegedly committed, they were in company with the others. The circumstance of special aggravation was that a complainant was occasioned actual bodily harm. Ilievski was also charged with dealing with property that there were reasonable grounds to suspect was the proceeds of the other offence; s 193C(2) Crimes Act. When arrested, he had $4,500 in cash on him.

6. On arraignment, each accused said they were not guilty. After COVID related delays, the matter was fixed for trial at Wollongong District Court on 17 January 2022. Each accused was arraigned again before a jury panel and said they were not guilty. On 31 January 2022 after a ten day trial, Ilievski was acquitted of the dealing with property offence. He had earlier received the benefit of a directed verdict of not guilty on the count of specially aggravated obtain for advantage relating to the second Complainant (Count 2).

7. The jury acquitted the other three accused of that second count. The jury did, however, convict each accused of the alternative to Count 2; detain the second Complainant with intent to obtain an advantage of circumstances of aggravation. Each accused was convicted of Count 1 - detain the first Complainant with intent to obtain an advantage in circumstances of aggravation and special aggravation.

8. Each accused must have a full advantage of the count or counts for which they were acquitted. Each must, however, be sentenced for the two counts where the jury returned guilty verdicts.

9. A fourth man, Lee Eager, was arrested on 21 September 2020 after further police investigations. He attended the premises in Cringila while both complainants were being detained there. Agreed facts in his matter have him arriving after each complainant was assaulted and while one was having a cigarette break. He remained at the home for a period while both were locked under the house. At times he joined with others in coming to the door of the space and telling the complainants they were not leaving until money was paid. It is not suggested Eager participated in or had knowledge of any assault of either complainant.

10. In the Local Court, Eager entered guilty pleas to two offences of detain in company, on the basis he was a principal in the second degree; s 86(2)(a) Crimes Act. His matters were expedited so they could also be dealt with along with his co-accused. He was sentenced on 13 April 2022: R v Eager [2022] NSWDC 162.

11. Sentence proceedings for Morley, Clare and Walker commenced on 13 April 2022. Ilievski could not attend, even via video link, as he was in gaol in COVID isolation. Morley's proceedings could not be finalised as for COVID related reasons, reports had not been completed. His sentence hearing has been stood over to 22 July 2022. Clare, Ilievski and Walker's matters were adjourned to today, 18 May 2022, in the hope that I could finalise them. Walker's matter could not be finalised. It has been stood over until 8 July 2022.

Fact Finding

12. While it is for me to determine what facts I accept and reject, my finding must be consistent with the jury's verdicts. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. Where a fact in that is contested, it may not be acted upon for sentencing purposes unless it is established the proof of such a fact must occur in the context of the proceedings concerned, namely, an uncompleted criminal trial. It is fundamental that in any such proceeding, the accused person cannot be obliged to prove a fact. The criminal trial process does not cease to be accusatorial after the conviction is recorded and during the proceedings relevant to the determination of sentence.

13. Matters of mitigation must be established on balance of probability. Matters of aggravation, the penalty must be established beyond a reasonable doubt; Olbrich v the Queen (1999) 199 CLR 270; [1999] HCA 54. Sometimes a sentencing court must sentence according to what is known or agreed. If I am not satisfied of some matter urged on behalf of the offender, I do not have to sentence based on that contention unless the prosecution proves the contrary beyond reasonable doubt; Olbrich at [24].

14. It is important here to note that I had no evidence from the offenders. Each clearly entered into a joint criminal enterprise, but there is little material before me as to any personal interactions between them, what was said or done in the absence of the complainants, where exactly they were in the small house concerned, why both Ilievski and Walker were at the premises, or why Clare did not go to the Cringila service station.

15. As in many such cases, the judge does what they can and is governed by the principles to which I have referred. I was taken in submission to differences between the accounts of both complainants. It is obvious the jury did not think those differences were significant enough to undermine the prosecution case; I have formed the same view. Trauma may affect people differently. They may not remember all the details of a traumatic offence committed against them in the same way each time, or in the same way as other participants. It is relatively common for there to be differences between witnesses' accounts of traumatic crimes. I accept the versions given by each complainant as a proper factual basis to proceed to sentence, but where a difference favours an offender, I will act on the most favourable finding available.

Facts for sentence

16. Reviewing the objectively established evidence, I am left with the following facts upon which I can proceed to sentence.

17. Each accused in each complainant were methylamphetamine (ice) users. Morley would sell ice from his home, a two bedroom flat under a house in Cringila. Complainant 1 was one of his customers.

18. In early 2020, there was a shortage of the drug ice in the local area. Complainant 1 had a contact number for a supplier based in Sydney; he had been given it by his friend, Complainant 2. He gave that number to Morley. Morley agreed to purchase 2 ounces (56 grams) of methylamphetamine from the Sydney dealer. A price was arranged. It is not quite clear whether it was for $5,000 or $9,000.

19. Suspicious, Morley insisted that Complainant 1 accompany be in Sydney when the deal was done. Late on 11 May 2020, Complainant 1 was picked up by Morley from near his home and the two men, accompanied by Clare, drove to Western Sydney in a VW station wagon. They met the Sydney supplier at a designated location. A sample was handed over to Complainant 1 and smoked by Clare. Money was exchanged and a packet of white crystals supplied. The supplier left and the occupants of the VW headed south. Soon after, they discovered that, to use the colloquial term, they had been ripped off. Instead of ice, they had been supplied with a similar quantity of what looked like bath salts. Police later recovered about 60 grams of white crystals in a packet, in bedroom 1 of Morley and Clare's flat or home in Cringila.

20. Morley held Complainant 1 responsible for the loss; he wanted compensation. Complainant 1 had no money. He contacted Complainant 2 who he knew had just cashed out $10,000 of his superannuation using the COVID related relaxation of superannuation rules. He asked Complainant 2 to the meet him at the flat at Cringila; Complainant 2 said no. They then arranged the meet at the Cringila service station.

21. The VW was driven to the flat at Cringila; Clare got out and Walker got in. Walker is a large, heavily built man. At the service station, Walker got into Complainant 2's Citroen van and directed him to follow the VW to Cringila. After the cars were parked in the driveway, both complainants were told to go into the flat and sit down. There Morley, in the presence of Clare and Walker, made it clear to the complainants that they were responsible for the lost money, and they would not be leaving until “their debt” was repaid. To reinforce that request, Morley and Walker, using weapons, struck the complainants on their legs and knees. Complainant 1 said Morley used the side of the blade of a tomahawk and Walker used silver nunchucks (martial arts fighting sticks joined by a chain). A fingerprint impression and a DNA profile matching Walker's was later recovered from the silver nunchucks found in bedroom 1.

22. Complainant 2 said tomahawks were used. He told the jury he was frightened but, "It wasn't that bad physically. It didn't hurt." He later found a bruise at the site he was hit.

23. Complainant 2 then transferred $1,050 to an account nominated by Morley. That account belonged to Clare. Soon after he rang his mother and had her transfer $2,500 to Clare's account from an account she held for him. He then offered those in the flat some ice that he had purchased the day before.

24. Complainant 1 told the jury that Morley “hit me four times on the right knee. I think it was the third impact I felt something pop in my knee and I knew something was potentially fractured. Felt a click happen. Following that, severe pain. Noticed immediate swelling started to occur. Definitely knew something bad - that bad - bad that’d happened."

25. A police photograph of the swollen knee was tendered at trial. Complainant 1 told the jury the pain and discomfort continued throughout the following day. He told the jury he had a great difficulty that morning because of the injury to his knee, but he "tried to stretch out as best I could with my knee." On sentence I received a medical report noting that there was a nondepressed subchondral fracture and associated oedema to the knee. On 19 May 2020, Complainant 1's knee was found to be unstable, and he was unable to straighten it. There was no significant ligamentous or meniscal pathology found within the knee, but there was a moderate sized multiloculated parameniscal cyst.

26. As this assault occurred, Complainant 1 said that both Morley and Walker were saying things like, "How you gunna sort it out?" He said Clare was present when this occurred. He said, Morley was telling him to make phone calls “telling me to call my mum, call my - well, like, my family, in which I was simply saying "I'm not going" - "I don’t have anyone to call.”

27. Complainant 1 continued to refuse to pay any money or contact his family and ask them for payment. His phone was taken from him. He told the jury he kept explaining to them that “kept explaining to them that I definitely wasn't going to be calling my mum and asking for $9,000 at that time in the morning - I wouldn't be doing it during the day, let alone at that time." Later that phone was used so that Complainant 2 could speak to Complainant 1's mother, as he would not.

28. Complainant 1 said he was not allowed out of the storage area, although he was given some ice to smoke. Complainant 1 later came to think Complainant 2 may have had something to do with the rip off.

29. Complainant 2 on the other hand blamed Complainant 1 for luring him to Cringila and getting him into this predicament. He told the jury this was not the first time he had helped Complainant 1 out of difficulties arising from his drug use. He also said he resented the fact he was still being held because Complainant 1 was not cooperating or making any effort to raise any of the funds demanded.

30. In the morning Clare came to the storage area door and handed both complainants water bottles and the burek (pastry). In the morning, Morley put the phone on loudspeaker, so Complainant 1 could talk to his brother. He told him, "Sorry, I, I fucked up. In a shit position. They want, they want nine grand which I don't expect you to pay.”

31. Complainant 1 said most of the demands were made by Morley who came to the door to ask about contacts on his phone. He said Walker did not come to the door. He said Ilievski “came to the door and would ask me how I was going to sort it out.”

32. Complainant 1 told the Court, "The only point where Tara [Clare] really spoke was when she had enough of looking at us and told Ben [Walker] and Cheyne [Morley] to put us underneath the house."

33. Complainant 1 said that; “Later in the afternoon, after Cheyne and Ilo come to the door repeatedly asking how I was going to sort it out to no avail, Ben Walker came to the little hatch, opened it up”. He said Walker told him to “"get the fuck out…get the fuck out the front…He'd kept asking me how I was going to come up with the money, when I was going to come back with the money. If not, if I didn't come back with the money and stuff, they were going to chop me up. If I went to the police, if my family went to the police, they were going to chop me and my family up.”

34. As he passed the living room, he saw Clare, Ilievski and Complainant 2. Ilievski came outside as Walker was walking him outside.

35. When Walker had him out the front Morley “come running out really fast, grabbed a hold of my jumper and started hitting me at the side of the face.” Walker stood to the side watching. He then told Morley to stop, as people passing might be able to see. As this occurred, Ilievski was also present.

36. Complainant 1 suffered swelling, haemorrhaging, bruising and facial fractures, which were later treated in hospital. A report tendered on sentence noted that Complainant 1 had a left comminated fracture of his naval bone, a left zygomatic fracture, and other facial fractures. A plate was inserted in his left maxilla.

37. Complainant 2 told me that when the assaults occurred in the living room and the demands were made of him, Clare was coming and going from the living room. At one stage she asked for “privacy." It was then both complainants were ordered into a large storage space at the rear of the unit under the floor of the home above. To access the space they had to step up and manoeuvre through a small door, or small hatch, set midway up the rear wall of the unit. That hatch was then locked behind them.

38. Complainant 2 said he was treated more leniently than Complainant 1 because he had cooperated. He was allowed out at times to smoke cigarettes and ice, and was allowed to get his notebook from the van, but after each outing he was told to return to the storage area and the hatch was closed behind him. "I always had to go back in", he said. On one cigarette break, he saw Ilievski in the lounge room of the flat. He said Ilievski later came to the door of the storage area and said, “that Cheyne would be happy with taking possession of my car to - as a down-payment for the rest of the money and they would let me go."

39. He said, "Clare also came to the door to ask Complainant 1 to make phone calls to get money." She gave them water and a pastry. Another man, Eager, he said, also came to the door. He said his phone had been taken but he was given it, and on request rang Complainant 1's mother and told her son was being taken. He said, "I'm sick of paying for Brendon's mess and that I've already paid - gave them all the money that I have and now that it's her turn to bloody clean up her son's mess." At first, she thought he was joking.

16. Complainant 2 told the jury Complainant 1 made no effort to arrange the money, so eventually he got over being in the space and gave in, signing his car over to Morley. When he said he would do this, he was let out of the space. He felt he had no option. This was about 3 to 4pm. He said when this was happening, Walker told Complainant 1 he could leave. Complainant 2 heard yelling out the front. He next saw Complainant 1 when they were both at the holding area of the police station.

17. The complainants were detained for over 15 hours. They were directed to the lounge room in Cringila at about 1am. Complainant 1 was released at 4pm; Complainant 2 left at 5pm; when exactly his detention stopped cannot be determined, but it was not until the Citroen was signed over.

18. Most of the time they were kept in the restricted underfloor space. Only Complainant 2 was allowed some freedoms and breaks as a reward for arranging payments.

Specific factual finding

Ilievski

43. Ilievski was he was not present when the first assaults occurred, nor could I find he was even aware of them, but he was present when Complainant 1 was hit by Morley after he had been let outside, before he left the premises. By its verdict, the jury must have accepted his presence during this violence. Contributed to that, circumstance of special aggravation on Count 1. He also lent his weight to the detention on both counts and intimidation. On both counts, there is no evidence of any pre-planning. He must also get the full benefit of his acquittal on Count 3.

Clare

44. Clare was present from the start. She was aware that Complainant 1 was blamed for the rip off. She was present when both complainants were confronted and assaulted by Morley and Walker. She was aware they were placed in the underfloor space. She must have known what was being said to them. She provided food and drink to them while they were being detained in that space. Given the size of the flat, any suggestion she was not involved or was unaware of what was going on must be rejected.

45. She played a lesser role than Morley and Walker, but she was still involved. Her presence did not add to the intimidation, and she did bring food and drink. She did leave the premises for a period during the detention. Some facts I could not determine, how long she was absent, but in part this was to recover the proceeds and does not significantly reduce her culpability. Other facts cannot be determined beyond reasonable doubt, particularly the extent of her relationship with Morley or her involvement in any drug deal other than the fact that she was present and tried the sample that was offered to them.

Objective seriousness - General

46. When offenders are involved in the joint criminal enterprise, each is equally liable. This does not necessarily or automatically mean that each offender is sentenced on the basis their individual actions had the same objective criminality. The sentence imposed must be proportionate in the sense that it properly reflects the personal circumstances of the particular offender and the particular conduct in which the offender engaged when those circumstances and that conduct are compared with others, other offenders and defending; Magaming v The Queen (2013) 252 CLR 381 at [51].

47. There can thus be differentiation between each participant. Examples of differences include where one offender stands out as the obvious ringleader or one or more inflict violence or use a weapon to cause injury. Any individual assessment should however begin with the propositions that each involve themselves in the course of criminal conduct, each intended the crime, and each played their part in carrying it into effect; R v Goundar [2001] NSWCCA 198; R v Breedon NSWCCA, 3 December 1992, unreported; Johnson v R [2010] NSWCCA 124.

48. Generally, in a detention matter, a Court takes into account:

1. The period of detention;

2. The nature of the advantage sought;

3. The circumstance of the detention, including:

1. motive;

2. any real threat of violence;

3. the presence of a weapon in its nature;

4. any anguish, severe discomfort, violence and/or harm inflicted;

5. the number of offenders, the force of numbers deployed against the victim, that is, the force of numbers complied against the victim, and

6. for the specially aggravated defence, the nature and extent of any bodily harm inflicted; R v Newell [2004] NSWCCA 183.

4. Co-offenders, where the basis of the offenders' liability for kidnapping is joint criminal enterprise, it is often difficult to draw a distinction between them, but the Court can draw a distinction between the role of offenders. For example:

1. between the person who inflicts the violence and the person who is present, and at least implicitly approves of, if not encourages that action, and

2. between those who were part in the planning or preparation; see for example, Johnson v R [2010] NSWCCA 124.

49. The complainants were detained because they were thought to have been responsible for the loss of money in a failed drug transaction. There was no evidence they were involved in the “rip off.” To the contrary, the loss was the result of Morley's negligence.

50. While it is correct to say, as was submitted for Morley, Complainant 1 got his now former friend involved by having him come to the Service Station, that occurred only because of the threats felt by him, he had, as the Crown submitted, been forced into “self-preservation mode” and Complainant 2 had bailed him out.

51. Complainant 2 did not want to go to the Cringila home, hence the meeting at the service station. Walker went uninvited to his car and directed him to the home. Walker's commanding presence in his car gave him no choice. Mr Hart, Counsel for Walker, noted there may be differences here between what was subjectively felt by Complainant 2 and what was objectively proved Walker did. What occurred at the house the minute they returned, indicates Walker's intention corresponded with Complainant 2's understanding; he had no choice.

52. The initial injury inflicted on Complainant 1 made it harder for him to resist his detention. Weapons were used. Given what Complainant 1 told the jury and forensic evidence I find, both nunchucks and an axe were used. I do not believe it makes any difference what weapon was used, as both weapons are of a similar type. The fact a weapon was used is the aggravating factor. Complainant 1 was detained for many hours in an uncomfortable, confined space. His discomfort was exacerbated by the injury to his knee. The intention of the initial assault and the subsequent confinement was to create fear and humiliation in order to intimidate him into arranging his family to transfer money. Complainant 1 resisted and was kept confined as a consequence. He was confined for 15 hours.

53. At the end of the detention, he was again assaulted, this time causing him even more serious injuries, causing multiple fractures and requiring the insertion of a plate.

54. Complainant 2 was assaulted using a weapon but not injured. He was threatened, but not as badly treated as Complainant 1. This was because he made efforts to hand over money and later his car. He also successfully mollified his captors by providing them with methylamphetamine, but he was still detained and forced to hand over money and property. He too, was assaulted and humiliated, although he suffered no serious physical injury. He was held for many hours, although he was allowed some breaks from the space under the floor.

55. In each case, the threats were continual and reinforced by the detention. Each Complainant was aware their families were being involved and were possibly also under threat. Each was subject to a continuing offence accompanied by a continued threat of harm or further harm.

On sentence

Clare

56. On sentence, Ms Mitchell, Counsel for Ms Clare raised some factual issues for resolution. Ms Mitchell submits that I could not find beyond reasonable doubt that Clare was present when the initial assault occurred and that she removed herself from the enterprise, and I would find that she removed herself from the enterprise when she left the Cringila house the next day. She noted that Clare had only one interaction with the complainants when they were in the space, and that was to bring them food and drink.

57. Clare's role in the assaults and the detention was passive, but as the jury found she was involved. Both complainants were detained at her small home. I accept Complainant 1's account that she was present when the initial assault occurred. She was not involved in the second and more serious assault on Complainant 1.

58. There is no evidence Clare made any demands of the Complainants, but I have no reason to doubt hers was the female voice heard in the background when demands were being made of a relative at 2.26pm; Trial transcript 361-362. She was not actively involved in the detention in the underfloor space, but she was present and when called on she did assist by providing food and drink. And it was her bank account that was used, and she left the home to collect the money.

59. It may be that during the period of the detention she did other things, such as shopping, and thus her role did not cover the entire period of the detention. She did not otherwise remove herself from the enterprise. She was present throughout most of the day. She was, as Complainant 1 told the jury, present when they were assaulted. She left to go shopping and collect deposit, but in doing so, and in doing other things she did not remove herself from the enterprise.

Ilievski

60. Ilievski was not involved at the beginning. He was not present when the complainants were first assaulted. My directed verdict makes that clear. There is no evidence why he came to the Cringila home, what his motivation for involvement in the crimes was, but once there, he lent his presence to the detention and the threats and attempts to extort money and the car. He played his role by encouraging them to meet the demands. He was not a conciliator, rather he was a party to serious crimes.

61. He was not involved in any physical interaction with either complainant, but the jury, by its verdict on count 1 found he lent his presence to the second assault. He did spend less time in the house, and as Mr Hibbard submits on his behalf, this offence would have occurred whether he was present or not. As he was acquitted of the proceeds of crime count, and must have the full benefit of that acquittal, I cannot find that the money found was related to the earlier offending. There is no evidence about why he chose to involve himself in the offence. He received no obvious benefit for doing so. His involvement accordingly appears gratuitous and unnecessary.

Victim impact

62. No Victim Impact Statement was provided from either complainant. The absence of a Victim Impact Statement does not give rise to any inference that on offence had little or no impact on the victims - on the complainants; s 30E(5) Crimes (Sentencing Procedure) Act 1999.

Maximum penalty

63. The maximum penalty for a s 86(3) offence is 25 years imprisonment; for a s 86(2)(a) offence it is 20 years imprisonment. Those maximums are important guides to the exercise of any sentencing discretion.

COVID

64. When I come to synthesise an appropriate sentence, I cannot ignore the impact of the COVID pandemic. COVID-19 has entered our gaols. Prisoners have been and will be subject to the considerable restraints, lockdowns and lack of access to work programs and visits brought in to reduce the chance of infection entering or spreading. Those restrictions will continue for some time, although they have been moderated: COVID-19 (coronavirus) Response, Corrective Services NSW; - viewed 13 May 2022.

65. We all feel heightened anxiety and concerns about the pandemic, but prisoners have no control over their lives or who they associate with, so such concerns are exacerbated. These are relevant factors that must be synthesised along with all other matters. New prisoners must also endure initial quarantine, effectively solitary confinement. That is the fate that awaits Ms Clare. I also note and accept as it corresponds with evidence given many times during the last two years that Mr Ilievski has spent almost five months of his period on remand in isolation.

Unsworn evidence

66. No offender gave evidence on sentence. Each tendered reports from expert psychologists. None was required for cross-examination. Both gave their history to Community Corrections officers for incorporation in Sentence Assessment Reports (SARs).

67. Most sentencing proceedings do not involve some general joinder of issue between prosecution and offender. Calling and testing evidence is required if a certain fact controverted, or if the judge is not prepared to act on the assertion. Reasonable minds may disagree when assessing the weight that must be given to matters raised the proceedings, particularly those sentencing proceedings to which the Evidence Act 1995 does not apply. Calling and testing evidence is required if a certain fact is controverted or if the judge is not prepared to act on the assertion. Most often this comes up in three areas:

1. Where the matter not on their oath is repeated and repeated second hand is put forward as evidence going to an assessment of the objective circumstances of the offence; R v Qutami [2001] NSWCCA 353.

2. So called expert psychological reports which uncritically parrot claims by an offender who does not give evidence. In such circumstances, expressions of good intentions by an offender who is not willing to be tested in the witness box carries little weight; R v JDX; JDX v R [2017] NSWCCA 9.

3. Expressions of remorse and contrition that are not reflected by the offender's actions or other evidence.

68. To the extent that matters raised in the reports transgressed these three areas, as they were not subject to cross-examination, I am entitled to view what was reported with appropriate scepticism.

69. Otherwise here there is no reason to lessen the effect of the opinions of the authors of the SARs, or the professional psychologists who gave their opinions in reports which were based on history and admitted without cross-examination, in compliance with the District Court Practice Note 20, cl 15. The considered opinions of experts with clinical experience in taking histories, testing and assessing their significance are relevant and should be taken into account; Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79]

Subjective case

Clare

70. I had the benefit of a Sentence Assessment Report for Ms Clare. She was, and remains at the time of sentencing, effectively homeless. She reports she has been in a relationship with the co-accused Morley. She has children who are now with her family. She has exhausted most supports, but I do note that there are friends and supporters here for her. She is, from all the reports before me, in a complete state of denial, given her claim that she knows nothing about the offending. There is a history she is long-term drug user and also uses alcohol. She will need interventions and an intervention plan has been set out and can be put in place.

71. I have the benefit of report from Ms North, a forensic psychologist. She notes a history of depression that at the time she managed by taking methylamphetamine and other substances. From her history and testing, she also finds that Ms Clare had an adjustment disorder with mixed anxiety and depressed mood. She said her unstable lifestyle contributed to a downward spiral and contributed to impaired judgment at the time of the offending. In her opinion, her mental health and substance use issues, in addition to her generally unstable lifestyle, directly contributed to involvement in the offence. She set out her personal history and some tragic aspects to it. She noted traumatic events in her life, including childhood trauma relating to exposure to domestic violence and alcohol abuse within the family.

72. There are a number of matters in the reports which detail her grief response to both her mother's and her previous partner's deaths. She still needs assistance helping her cope. Her family history involved; removal from the family home and being cared for by foster carers and other family member. Her domestic relationships which were marred by violence and drug use. She has a long term history of anxiety and depression. She meets the criteria for adjustment disorder and stimulant use disorder.

73. Ms North recommends that Clare be referred to a psychologist for treatment so that her anxiety and depression can be managed. She will need a referral to a Correction’ s psychologist. She needs substance use counselling. She will require specialist drug and alcohol treatment. She will need to get as much help as can be given to her in custody and out, to help her abstain from and then maintain abstinence from the use of illicit and other drugs.

74. Obviously, while an offender's history and childhood experience cannot excuse offending conduct, it is important and must be taken into account. Traumatic events have an impact, particularly those from childhood; they must be taken into account in mitigation. Such trauma does, as the evidence many other cases, some of which were detailed by the now Chief Justice in Nasrallah v R [2021] NSWCCA 207, have a continuing impact. I did not devalue the impact of the particular traumatic events detailed in the reports. They are relevant; and particularly relevant in matters such as this. They will be given effect to in mitigation of sentence. It is clear that Ms Clare needs to engage with the psychologist.

75. Clare needs to learn to effectively manage her anxiety and depression. She must have substance use treatment and engage in relapse prevention. On release, stable housing is critical. Without these things, her prospects are guarded.

Submissions - Clare

76. Ms Mitchell for Ms Clare provided the Court with comprehensive written and oral submissions relating to the matters of factual dispute and findings of objective seriousness of both the offence in general, and Clare's in particular. Ms Mitchell was critical of some of the aspects of the evidence, particularly that of Complainant 1. Having heard him and having been aware of the other issues and taking into account those submissions I did prefer Complainant 1's account.

77. She submitted that there was little option for Clare other than to be present during the offending, but all of the material before me and obviously before the jury established that Clare was aware of and involved in the enterprise from when it first commenced. In her case, from when the two men entered the small flat where she lived. She made appropriate submissions about a strong subjective case, and I hope that I have, in these brief remarks, done justice to them.

78. Ms Mitchell's submission was that Clare was a less than perfect vehicle for that aspect of sentencing relating to general deterrence. While specific deterrence may have some impact, she said, all the matters put before the Court, particularly Clare’s need for comprehensive assistance in learning how to go about leading a normal community life and her prospects meant that a custodial sentence would be particularly hard on her, she not having spent time in custody before. And, ultimately, that I address the matters raised, and meet all the many purposes of sentencing, by imposing a sentence that could be served by intensive correction in the community.

79. The matters to which I was taken indicate four days of custody referable to these matters. They did include some breach of bail. She has a minimal criminal history with a record for mainly driving, dishonesty matters and never been to gaol. She was on strict bail.

80. Clare was born in 1984. She is still a young woman. Her impoverished family background, where alcohol and domestic violence use was common, and a number of traumatic events are detailed in the report. She and her siblings were removed. She has lived independently since she was 18. There was an early uptake of illicit drugs before she was old enough to make rational choices. Her education was disrupted. She has worked occasionally, and she has done some courses. But she has not worked since her first child was born in 1994. She had a second child two years later. Her partner had a serious injury in 2018, which increased stress and disruption, and her mother's death had an impact on her. She has been assisted by, and there is some doubt as to whether or not she is in a relationship with Morley, but she was certainly being assisted with accommodation at the relevant time. She now acknowledges she has hit rock bottom, but if stressors are removed, her condition can improve. Sadly there will be the additional stressors imposed upon her of a custodial sentence, and I do not underestimate the lived experience of gaol.

Ilievski

81. Mr Ilievski's subjective case was set out in the report of Mr Jones and the Sentence Assessment Report (SAR). He was born in 1977, he is now 44. He grew up locally. His parents are in Wollongong. His mother has always been there for him, but he had a difficult relationship with his older brother and father. The report notes the impact of his father's drinking and subsequent violence. He has been before the Local Court on a regular basis since 1996. He went to gaol for possession for pistol in 2008, and gaol again in 2016, 2017, and 2018. Effectively, he has been almost entirely in custody since 2018. He was on a Community Corrections Order until 13 May 2020; technically, he had one day to go. He has been on remand since his arrest on 12 May 2020, but on the 13th he was sentenced to a six month term in the Local Court, which dated from the 13 May 2020 until 12 November 2020. It appears that he lived a transient existence prior to his arrest and was a long-term methylamphetamine user.

82. He has completed several courses in custody, which, given the pandemic, shows a considerable acumen and determination on his part. The SAR notes he is doing okay in custody and his gaol reports attest to his injury. He now accepts some responsibility for his actions and accepts there is a link between his drug use, his drug using peers and his offending. He appears to be using his time well, but he would benefit from the gamut of EQUIPS programs and a mental health referral. I have already noted the impact of COVID while he has been in custody.

83. Ilievski admitted to Mr jones that he was involved in the crime. He says, however, he was not actively involved this morning; rather he said he was “in the wrong place at the wrong time.” There was some acceptance of responsibility in those remarks, but I could not find that he is genuinely remorseful for the harm that was inflicted upon his victims.

84. He fails to comprehend that he was involved in this crime and enough to be convicted. He accepts he has hurt people, but he is yet to learn the full impact of his offending.

85. Mr Jones sets out his family history. There is a report of abuse when a child but there were no details nor has there been any prior revelation of this fact. Mr Jones did not analyse the impacts of that revelation. Ilievski reported that at the time he lost interest in sport and school, and alcohol and drug use became prevalent. It is certainly clear from his record and all the material before me that he took up alcohol and drug use when he was too young to make rational choices. He has anti-social using peers. Although he has been in some relationships, they have been marred by this lifestyle.

86. He has worked at times, but it would appear until at least this time in custody drugs have meant more to him than anything else. Since he was 28 years old his drug of choice has been methylamphetamine.

87. He says he can get work on release and certainly he has done what he can to prove his capacity to work while he is in custody. He will need supervision and assistance and the plan is put forward by Mr Jones forward for his release. He will need drug relapse prevention counselling, illicit drug abstinence, regular urine analysis and monitoring of where he is living and support networks to limit destabilising influence and build up effective support systems.

Submissions - Ilievski

88. Mr Hibbard, Counsel for Ilievski, spoke this afternoon to his succinct, written submissions. He has submitted that regardless of any assessment of the overall enterprise, Ilievski's level was very low for offences of these types. He noted the absence of evidence of any preplanning and Ilievski's limited role in the enterprise. Ilievski was not involved with forcing either complainant into the underfloor space. In fact, Complainant 2 was outside when he arrived the premises at first light. But Complainant 2 was then, as Ilievski knew, returned to that space, although he may have left for a period.

89. Mr Hibbard submitted I could find Ilievski was a peacemaker as he encouraged resolution of the dispute that led to the complainants being held. I cannot accept that submission, but I do note that nothing said or done by Ilievski was of itself violent, rather by his presence he contributed to the intimidation of both complainants, and I accept that he was not present when the most - using Mr Hibbard's phrase - sinister aspects of the detention, when the demands were made, and the assaults occurred when they first entered the flat. Mr Hibbard noted the matters in the psychologist report tendered and submitted they reduced Ilievski's moral culpability. He noted the expressions of remorse contained in the report. He asked that I fine Ilievski played a role comparable to that of Eager.

90. Ultimately, Mr Hibbard submits that given Ilievski's limited role after adjustments to allow for some modest accumulation on the sentence he has served for an unrelated matter, and the finding of special circumstances, that Ilievski could be released to parole today.

Moral culpability and trauma history

91. Returning briefly to moral culpability and trauma history. Clare's report indicates a long history of difficulties, including exposure to violence and drugs and multiple trauma. She is still drug dependent and has related underlying psychological conditions.

92. Ilievski's report notes a history of violence and alcohol in his family home, and the early uptake of illicit drugs which, like with Ms Clare, have blighted his life. He has shown some progress in custody. He reports a single episode of child sexual abuse never documented and not assessed by his psychologist.

93. Whether or not a single instance of sexual abuse or some other traumatic events strictly falls within the scope of the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571 may be debated: Nasrallah v R. But such assaults can have, as can the history detailed by Ms Clare, profound and highly detrimental effects on children: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; and Stanton v R [2021] NSWCCA 123 at [67], Nasrallah at [100]-[102]. They are always relevant, and I do not devalue the impact of the traumatic events detail. Backgrounds do help mould people who come before the Court and must be taken into account when synthesising an appropriate and just sentence. It can also explain why each offender as a young person took up the use and abuse of illicit drugs.

94. The fact that both offenders were using drugs at the time does not mitigate, but the fact of their addiction, how it came about, what is to be done about it, are relevant, particularly in explaining what was done and why they became involved; R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [273].

95. These matters should be given full weight. They are part of the process of instinctive synthesis of any sentence because they go to moral culpability, that is moral blameworthiness for the offence, and that requires a consideration of subjective factors affecting the offender, which I have sought to do. See R v Dungay [2020] NSWCCA 209; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [54]; Bugmy v The Queen (2013) 249 CLR 571 at [44]; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14. They also extend to their personal circumstances and background, as was pointed out in Bugmy.

Parity

96. Each manifest sentence must be determined having regard to the circumstances of each co-offender and their respective degrees of culpability - like must be compared with like.

97. This principle is known as parity. It is a classic example of the need so far as possible to ensure equal justice; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. In like cases, that principle can also encompass the structure of a sentence and whether a finding of special circumstances is made; Lau v R [2010] NSWCCA 43. Proper application of the principle does not necessarily mean each offender is sentenced on the basis their individual actions have the same objective criminality. There can be reasons why one offender is less objectively culpable than the others. Each must be assessed as to where they lie in terms of objective circumstance of their offending, and their subjective case. Different personal and criminal histories may justify a real difference in the time each serves in prison; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Magaming v The Queen at [51]

Structure

98. I must take into account that for each offender there are two matters for sentence, the fact there were two victims. Simple arithmetic addition is not appropriate. I must evaluate in a broad sense their overall criminality, and having done so, determine what adjustments are necessary. I must ensure, however, that where two crimes are committed against two victims, a community not be left with the perception that people who commit multiple crimes should escape effective punishment. There must be some accumulation, but many of the elements relating to each individual offender overlap.

Synthesis

99. Ultimately, I have to identify, as I have sought to do, factors relevant to sentence, discuss their significance and make a value judgment about the appropriate sentence, taking into account all the factors put before me in relation to the offending behaviour and the offender; Muldrock v The Queen; Markarian v The Queen (2005) 228 CLR 357; Hili v The Queen (2010) 242 CLR 520.

100. No one should be punished or will be punished for exercising their right to jury trial, but if convicted, an offender does not get the benefits extended to those, such as Eager, who entered guilty pleas early. It appears Ilievski at least accepts now he did wrong by both complainants. Acceptance of responsibility, as in Ilievski's case, also helps me assess his prospects.

101. Clare still professes to have no idea what she why she was arrested and convicted. Her failure to accept responsibility does not deny her appropriate leniency.

Ilievski

102. So far as Mr Ilievski is concerned, I take into account the principles, particularly parity, findings I have made in relation to his role, his criminal record, and the subjective case which helps assist in explaining his drug use and criminal associations. If addressed, it gives him some hope for a drug free future. Accordingly, I can extend some leniency and reward his efforts towards drug rehabilitation and progress in custody and the time he served subject to COVID, by finding special circumstances. He needs psychological treatment, he needs assistance dealing with his drug addiction while in the community, he will need help adjusting to normal community life. In so finding I am mindful of a requirement, the minimum period for which he should be in prison must also reflect the gravity of his offences and the other purposes of sentencing; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

103. It is important to note that studies reveal offenders who do receive parole supervision on release and take up and cooperate with that supervision are less likely to commit offences, and commit fewer offences than they were released, and I will incorporate the Bureau of Crime studies if this judgment is taken out: 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

Clare

104. So far as Ms Clare is concerned, I note questions of parity, role, her criminal antecedents, which do not include previous custodial sentence, and subjective case which does operate to reduce her moral culpability. This will be her first time in custody; she will serve it during the pandemic. She will be separated from prosocial friends and family and she will, at least, lose contact with prosocial friends and family. She will be subject to quarantine and any current and future strictures. She will need considerable help on release. She will benefit from a very extended period on parole, for the reasons I have noted, above, therefore I make a substantial finding of special circumstances. She has a sad personal history. She has now hit rock bottom. With help, I believe she can rebuild her life. I recognise that can only take place once she has served the minimum period her offending deserves.

105. I have considered Ms Mitchell's submission, for Clare, that an Intensive Correction Order could be imposed. Before an Intensive Correction Order can be imposed, an aggregate sentence of less than three years would be required. The preconditions for an imposition of an intensive correction order are not met here.

Conclusions

106. In relation to both offenders, I will consider all mitigating factors and they will be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of their offending. Sentencing courts have an obligation to take into account the case made for an offender, but they also have an obligation by the severity of the sentence imposed; to attempt to vindicate the dignity of each victim of the crime, to express the community's disapproval of the offending. The sentences need to extract appropriate retribution, because actions like the ones found proved here, harm our community. Crimes such as this involving detaining others, in the way that it occurred, for the period that it occurred, and for which they were involved, is no way to resolve disputes; including drug deals that go wrong. One of the historical functions of the criminal law is to discourage people resorting to self-help, because all that happens is there is an escalation of violence and the commission of further offences.

Orders

Tara Clare

107. In relation to Ms Clare, if I have not already, I will record convictions in relation to both matters. There will be an aggregate sentence.

In relation to Count 1, I indicate a sentence of three years imprisonment.

In relation to Alternate Count 2, I indicate a sentence of two years imprisonment.

108. There will be an aggregate sentence of three years and six months imprisonment. That sentence will commence on 14 May 2022. There will be a non-parole period of one year and nine months. She will be eligible for consideration to parole on 13 February 2024. The balance of the term of one year and nine months will commence on 14 February 2024 and expire on 13 November 2025. This sentence indicates a substantial finding of special circumstances.

Ilo Ilievski

109. Mr Ilievski, there will be an aggregate sentence in your matter.

In relation to Count 1, I indicate a sentence of three years imprisonment.

In relation to Alternate Count 2, I indicate a sentence of two years imprisonment.

110. There will be an aggregate sentence of three years and six months. There will be a non-parole period in your case of two years. That sentence will commence on 12 August 2020 that is partly concurrent with the Local Court sentence. You will be eligible for consideration for parole on 11 August 2022. The balance of the sentence of one year and six months will commence on that date, and your sentence will expire on 11 February 2022.

111. I note that when I say eligible for consideration for release to parole, I mean that each of you will have to come before the State Parole Authority before you can be released. It will be their determination, and that determination will be governed primarily upon the finding that community safety can is justified by your release.

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Decision last updated: 30 August 2022