R v Jacimoski

[2022] NSWDC 550

District Court

New South Wales

Medium Neutral Citation:

R v Jacimoski [2022] NSWDC 550

Hearing dates:

26 October 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Criminal

Before:

Wass SC DCJ

Decision:

The offender is convicted of using an offensive weapon in company with intent to commit intimidation.

The offender is sentenced to 16 months imprisonment to be served by an Intensive Corrections Order.

Given the 47 days that the offender has already spent in full time custody, the order will be for a period of 15 months, commencing on 11 November 2022, and expiring on 10 February 2024.

Catchwords:

SENTENCING — Penalties — Intensive Correction Orders

CRIME — Firearms offences — Unauthorised use/possession of firearm

Legislation Cited:

Crimes (Sentencing Procedure Act) 1999 (NSW)

Cases Cited:

Regina v Zamagias [2002] NSWCCA 17

Stanley v Director of Public Prosecutions(NSW) [2021] NSWCA 337

Category:

Sentence

Parties:

Rex (ODPP)
Phillip Jacimoski (Offender)

Representation:

Counsel:
Ms Rogers (Crown)
Ms Levick (Defence)

Solicitors:
Ms Rogers (ODPP)
Mr Dikha (Defence)

File Number(s):

2020/00148421

Publication restriction:

NIL

JUDGMENT

Introduction

1. The offender has pleaded guilty to using an offensive weapon in company with intent to commit the indictable offence of intimidation.

2. The maximum penalty of 15 years imprisonment is an important legislative guidepost.

3. The offender entered a plea of not guilty in the Local Court and was committed for trial. Prior to committal, the offender had rejected an offer made by the Crown. The matter was listed in the Super Call Over before her Honour Judge Yehia SC, as her Honour was then, in June and July 2021. The matter did not resolve. The offender entered a plea of guilty before Judge Yehia on 19 May 2022.

4. There is to be a 10% discount given for the utilitarian value of the plea.

Material

5. I have had regard to the materials tendered on sentence and the submissions made including:

1. The matters in the Crown sentencing bundle; including the statement of facts and the offender’s record;

2. The Sentencing Assessment Report (City Community Corrections) dated 11 October 2022;

3. The reports of Dr Stephen Allnutt and Dr Ellis Rodriguez;

4. The character reference letters provided by the offender’s mother and father, a close friend and a youth worker;

5. The offender’s drug screening tests which detected no drug use;

6. The offender’s enrolment in September 2022 in a marketing course through Open Universities Australia; and

7. The offender’s letter to the Court.

Facts

6. I note the facts through reference.

Objective Seriousness

7. The objective seriousness of the offending is informed by the following matters:

1. The offender was in company. This is already accounted for in the maximum penalty and will not be double counted. The offence took place with only one other person;

2. The offending took place in the victim’s home with the intimidation being not only by the use of the weapon but with force being applied;

3. The offender was holding the gun. He was trying to put some small bullets into it. It was not previously loaded;

4. Fearing for his and his family’s safety, one of the victims took hold of the co-offender and punched him a number of times. Another victim fought with the offender, trying to get the offenders out of the house. One victim took the co-offender out of the house by grabbing his hood and walking him down to the front of the house. At the time, the co-offender grabbed something in his hand and hit one victim on the head. Eventually the victim was able to get both offenders out of the house. The two then left in their car;

5. The victim required stitches and medical glue to treat a head cut;

6. Two elderly family members were present in the house. One was “very shaken by the incident”. [1] There is no evidence that anyone else was particularly fearful. Fear is assumed from what is objectively a frightening incident. The sentence needs to give due regard to the harm done to the victims, even where as in this case, there are no Victim Impact Statements; and

7. The gun was not in working order. However, this was not known to the victims. It was the intention of the offenders to use the gun to intimidate. Objectively assessed, the level of fear engendered by a gun is high. There is no particular evidence that it was in this case, and just who saw what of the gun. There is no evidence that the offender was brandishing it.

   1. Crown Case Statement, 19 August 2022, page 4.

The Offender’s Subjective Case

8. The offender is 27. He was 25 at the time the offence was committed.

9. He spent 47 days in custody referrable to this offence before being granted bail on 3 July 2020. He had not been in gaol before. He has a clear picture of what life holds should he offend in the future.

10. The offender’s bail conditions required initially house arrest, and subsequently daily reporting attended by a strict curfew between 8pm and 5am. That was later changed to commence at 10pm to allow the offender to attend work.

11. That has been relevant in three ways:

1. It showed an ability of the offender to abide by strict Court orders over a long period of time;

2. It provided a valuable circuit breaker, together with the earlier imprisonment, for the offender to break with his anti-social associations and to commence his rehabilitation; and

3. It served as a degree of punishment, curtailing his liberty during that period.

12. While incarcerated, the offender received no institutional infringements, remained drug free and used his time well.

13. The offender has a very limited criminal record. In 2015, he received the benefit of a s 10 bond for a period of two years with no conviction. That matter was called up due to further drug offences, leading to a conviction and a further 6 months on supervision. In April 2016, he drove with illegal drugs in his system. He was fined. In December 2016, he possessed a prohibited drug and dealt with proceeds of crime, for which he was fined and a further bond was entered. In June 2016, he drove whilst disqualified. He was fined. On the same day as these offences, on 15 May 2020, he attempted to possess a restricted prescription drug. He received a 6-month Conditional Release Order in the Local Court. He did not breach that order. These offences are consistent with his stated drug addiction. There are no prior matters of violence.

Family background

14. The offender was born in Australia.

15. He is the youngest of two siblings and a half-brother. He currently lives with his grandmother in Eastlakes. He is the full-time carer of his grandmother. He also supports his mother who is undergoing treatment for cancer.

Education and employment history

16. The offender has received Government benefits since losing his employment following his arrest and as a direct result of his anti-social behaviour. He has employment prospects with his father’s cleaning business and it is expected that the offender will take over the business over the next 12 months.

17. The offender has enrolled in an online short marketing course through Open Universities Australia.

Substance use

18. The offender has had a problematic history of drug use which commenced during his teenage years. In about year 10, he had a knee reconstruction which failed. Until then he had been active, fit, and athletic. He returned to sport but a subsequent knee reconstruction also failed leaving him with chronic pain. He was taking Endone, a strong pain killer. He became disengaged with sport and connected with drug taking peers taking cannabis, cocaine and benzodiazepines.

19. By the time the offender was 20 he was using drugs regularly. His possession charge arose in that context. He lost his job at that time and continued to abuse a variety of drugs up until the time of this offence.

20. At the time of the offence, he was abusing both illicit and prescription drugs, including methamphetamine, cocaine, GHB, Xanax and Valium. He was, in the days leading up to the offending, drug bingeing.

21. He has abstained from all drugs since mid 2020, shortly after he was arrested.

Psychological/psychiatric history

22. The offender’s parents separated when he was around three years of age and he was raised by his mother and his stepfather. He did not have a good relationship with his stepfather. He maintained a good relationship with his mother.

23. The offender completed year 12. However, he experienced difficulties concentrating and was easily distracted. He was never diagnosed with attention deficit hyperactivity disorder at school and was never expelled, however, he was suspended for disruption.

24. Dr Allnutt opines that the offender’s childhood behavioural problems are likely associated with attention deficit hyperactivity disorder. The onset of substance use in adolescence likely aggravated that behaviour.

25. The offender has engaged in psychological treatment, has successfully completed a MERIT program, and has distanced himself from antisocial and drug using associates. He has good employment prospects, taking into account his current responsibilities, including the offer in his father’s cleaning business. He has good social supports. He is compliant with his medication.

Response to supervision

26. I accept that the offender is remorseful. He has consistently expressed that to the psychologists and to the author of the Sentencing Assessment Report.

27. More importantly, he has demonstrated it by his behaviour since. He has been compliant with his bail for a long period, he undertook the hard work required for his rehabilitation, has removed himself from his antisocial peers, has sought out further employment and education, and continues to care for his family.

28. The offender shows genuine insight into the damage his offending caused and the reasons for it.

29. He has responded maturely and realistically; engaging in intervention to address his substance use and his mental health issues.

30. The offender responded well to supervision - albeit with an earlier breach in 2016 - having successfully completed a bond set in 2017 and one set in May 2020, both of which have now expired. Due to his low-risk rating, the supervision under the earlier bond was suspended.

31. Albeit late, the offender pleaded guilty to the charges in recognition of his wrongdoing. He has also written a letter of apology to the Court.

32. I am satisfied that the offender regrets his behaviour and that he is genuine in his statements of not wishing to reoffend.

33. Provided the offender continues on his current path, consistent with the expert opinion, I regard him at a very low risk of reoffending.

Parity

34. I sentenced the co-offender, Mr Enwia, on 14 May 2021, indicating for this offence a term of imprisonment of 18 months with a non-parole period of 9 months. His overall aggregate sentence, including one other matter that carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years, made him ineligible for consideration of an Intensive Correction Order for this offence.

35. On a joint criminal enterprise where both were prepared to lend themselves to the endeavour, and without drawing unduly fine distinctions as to the roles each played, the relevant factors on parity are:

1. Mr Enwia’s role was somewhat more substantial than the offender’s. The matter commenced with Mr Enwia’s aggression and where he instigated the conflict with the victims. The offender was there to lend support. However, the offender ultimately took hold of the weapon and sought to load it, prior to it being wrestled from him;

2. Both were young men in their 20s, with Mr Enwia being marginally younger;

3. Whilst the two had similar criminal antecedents at the time of sentence, it is notable that I also sentenced Mr Enwia for other violent offences arising from his lack of thought, and with dangerous and frightening behaviour, reducing his prospects of rehabilitation and increasing the need for deterrence;

4. In addition, Mr Enwia was on bail for other matters when he committed this offence, an aggravating feature not present in the offender’s case, but also relevant to the offender’s relatively improved prospects of rehabilitation having been compliant with his bail for some time;

5. Mr Enwia had the benefit of a 25% discount on his sentence, whereas the offender only 10%;

6. Mr Enwia was also compromised in his judgement by drug use;

7. Both faced custody for the first time and had used their time in gaol well;

8. Both had had similar childhood issues and drug abuse issues;

9. Mr Enwia’s sentencing assessment report set out some negative conclusions regarding his remorse. That had improved by the time I sentenced him to a point where I regard he and the offender as being on par in that respect; and

10. While both offenders are at a low risk of reoffending so long as they deal with their mental health and drug issues, unlike this offender, at the time of sentence Mr Enwia’s drug issues and resulting mental health issues remained largely unresolved.

Sentencing Consideration

36. There is no question that the offender is to receive a term of imprisonment of two years or less and the prosecutor did not argue otherwise.

37. The power to make an Intensive Correction Order is to be found in s 7 of the Crimes (Sentencing Procedure Act) 1999 (NSW) (“CSP Act”). The power is subject to the provisions of Part 5, which relevantly provide that a single offence cannot be the subject of an Intensive Correction Order if the imprisonment imposed exceeds 2 years.

38. The Crown submitted in writing that in the circumstances, no sentence other than a term of full-time imprisonment is appropriate, taking into account the objective seriousness of the offending, the importance of general deterrence, issues of parity, the need for the offender to be adequately punished, and the guidance provided by the substantial statutory maximum penalty. [2]

    2. Crown submissions, 26 August 2022.

39. That is a submission that I often see from the Crown in almost identical terms in circumstances where the only appropriate sentence is less than two years and accordingly one where an Intensive Correction Order is notionally available.

40. It is notable that no reference was made in the Crown’s written submissions to the protection of the community or rehabilitation (or indeed any of the subjective matters which might tell against a full-time custodial sentence) or by reference to the other matters set out in s 66 of the CSP Act.

41. I hasten to add that there is no criticism of the Crown in this case, who conducted herself at all times impeccably.

42. When I pressed the Crown on the basis for her submission, given the very low risk rating for recidivism of this offender and the progress to date in his rehabilitation, she would not be drawn, submitting that she “could not take the matter any higher” leaving me with the distinct impression that this was a position put by the Crown as a matter of course, rather than having regard to the particular circumstances of the case, and one which was driven by imperatives that the Crown prosecutor did not wish, or was not able, to disclose.

43. I regard the position put by the Crown as contrary to s 66 of the CSP Act as informed by the common law.

44. Section 69 (1) of the CSP Act relevantly provides that in deciding whether or not to make an Intensive Correction Order, the sentencing Court is to have regard to--

1. The contents of any assessment report obtained in relation to the offender; and

2. Evidence from a community corrections officer and any other information before the Court that the Court considers necessary for the purpose of deciding whether to make such an order.

45. The Sentencing Assessment Report provides a detailed history of the matters that I have set out. On the strength of an interview with the offender on 11 October 2022, together with Dr Allnut’s report, the police facts and criminal history, and mindful that I have further information informing me of the offender’s likely risks, the author of the report Ms Baker considered the offender to be at a medium to low risk of reoffending. Ms Baker relevantly states that any supervised order will result in monitoring and a review if any risk of reoffending increases.

46. The imposition of a sentence of imprisonment, to be served by way of an Intensive Correction Order in the community, involves a number of steps:

1. The first is to determine whether, having considered all possible alternatives, no penalty other than imprisonment is appropriate in all the circumstances of the case. That much has been conceded and I agree.

2. If it results in a sentence of imprisonment for a period of no more than two years, to determine whether the sentence of imprisonment should be the subject of an Intensive Correction Order. Again, that first matter has been conceded.

47. Howie J in Regina v Zamagias [2002] NSWCCA 17 at [23] said:

"... Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554; R v Rushby [1977] 1 NSWLR 594."

48. However, that is to be seen in the context of the clear words now in s 66 of the CSP Act.

49. Section 66(1) provides that community safety must be the paramount consideration in deciding whether to make an Intensive Correction Order.

50. Section 66 (2) relevantly provides that when considering community safety, the Court must assess whether an Intensive Correction Order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

51. Finally, s 66(3) of the CSP Act provides that when deciding whether to make an Intensive Correction Order, the sentencing Court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the Court thinks relevant; that is to say to consider all of the purposes of sentence and not just those that favour one party.

52. Section 3A of the CSP Act makes clear that the purposes of any sentence are:

1. To ensure that the offender is adequately punished for the offence;

2. To prevent crime by deterring the offender and other persons from committing similar offences;

3. To protect the community from the offender;

4. To promote the rehabilitation of the offender;

5. To make the offender accountable for his or her actions;

6. To denounce the conduct of the offender; and

7. To recognise the harm done to the victim of the crime and the community.

53. In that sense the cherry picking of factors that favour a harsher or indeed more lenient sentence and presenting only those factors in submissions does not assist the Court in arriving at the appropriate sentence.

54. In Stanley v Director of Public Prosecutions(NSW) [2021] NSWCA 337, the Court sat a bench of five and the following principles arose;

1. An assessment contemplated by s 66(2) of the CSP Act requires the sentencing judge to determine the manner in which a sentence of imprisonment is to be served having undertaken a real assessment of that which would best address the Applicant’s risk of reoffending;

2. A Court’s authority to commit a person to imprisonment in a correctional centre must be informed by its institutional character such that, in construing s 66 of the CSP Act, the solemnity of the power to imprison is an important contextual aspect.

3. Section 66(2) of the CSP Act must be read in the context of the obligation to consider the provisions of s 3A of the Act and “any relevant common law sentencing principles”, which in turn require evaluative judgments to be made;

4. At least in the short term, community safety may best be protected by a period of full-time custody, followed by a period of supervised liberty. And indeed I note that to the extent of the days spent in gaol and the period on bail, that has occurred already to some extent. On the other hand, where there is confidence in an existing process of rehabilitation in the community, which is already underway, the longer term likelihood of re-offending may be diminished by not sending the person to prison.

55. Any consideration must be seen in the context of section 21A(2) of the CSP Act in determining the appropriate sentence, including any aggregating and mitigating factors.

56. Section 66 is better described as a direction to the sentencing Court as to;

1. The fact that considerations which may promote the safety of the community are to be given special (paramount) weight and;

2. That one factor to be included in the instinctive synthesis is an assessment of whether the risk of the offender re‑offending would be more likely under an Intensive Correction Order or by requiring full time detention. It is a reminder to the Court that giving paramount effect to community safety does not require full time incarceration.

57. The assessment required by s 66(2) of the CSP Act is one component of community safety which itself is one of a large number of matters required by statute to be taken into account in the course of considering whether to make an Intensive Correction Order. While community safety is expressed to be the paramount consideration, the aspect of community safety reflected in s 66(2) may be of greater or lesser significance in any particular case.

58. The discretion to make or refuse to make an Intensive Correction Order will be informed by other considerations, both concerning community safety and also concerning other sentencing purposes.

59. The function conferred by statute is to determine the manner in which a determined sentence of imprisonment is to be served after undertaking a real assessment as to which method of serving the sentence of imprisonment would best address the offender’s risk of reoffending.

60. In the context of a consideration of community safety, there is a necessity to make an assessment of whether full-time custody is more likely to address the offender’s risk of reoffending.

Delay

61. I accept the Crown’s submission that any sense of anxiety that the offender had not knowing the outcome of his matter is entirely of his own doing. The fact of the trial being adjourned falls away as irrelevant once it is considered that the offender would have resolved that issue by pleading guilty earlier.

62. Indeed, any delay has ultimately been to the offender’s benefit. It has assisted me in concluding that the offender has now demonstrated clearly his ongoing rehabilitation.

Sentence

63. The offender is convicted.

64. The offender is sentenced to a term of imprisonment of 16 months.

65. I am satisfied that the risk of reoffending is best managed by allowing the offender to continue employment and treatment in the community. There is no reason to think that community safety is at risk, even in the short term, so long as the offender is supervised in the community, given the long period of bail compliance to date. In the long term, it is best achieved by supervised liberty. I am confident that where the offender’s rehabilitation in the community is already well underway, the longer-term likelihood of re-offending is lessened by a community based order which in my view will promote community safety.

66. Overall, given all of the relevant objectives of sentencing, including those put forward by the Crown; appropriate punishment for the serious offence, the need for specific and general deterrence, issues of parity, and having in mind the maximum penalty, I am of the view that it is appropriate to order that the sentence be served by an Intensive Correction Order. Given the 47 days that the offender has already spent in full time custody, the order will be for a period of 15 months, commencing on 11 November 2022, and expiring on 10 February 2024.

**********

Endnotes

Decision last updated: 24 April 2023