R v Kostovski and Nikolovski

[2010] NSWDC 296

CITATION:	R v KOSTOVSKI & NIKOLOVSKI [2010] NSWDC 296
HEARING DATE(S):	25 November 2010
JUDGMENT DATE:	10 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	In the case of Mr Kostovski the effective overall sentence is a period of imprisonment consisting of a non parole period of four years and a total term of six and a half years. In the case of Mr Nikolovksi the effective overall sentence is a period of imprisonment consisting of a non parole period of two and a half years and a total term of five years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Forms 1 - Break and enter and commit indictable offence - Stealing - In company - Repeated offending - Assistance to authorities
LEGISLATION CITED:	Crimes Act
CASES CITED:	R v Huynh [2005] NSWCCA 220 Ibbs v R [1987] HCA 46; (1987) 163 CLR 447
PARTIES:	The Crown Velko Kostovski Blagoya Nikolovski
FILE NUMBER(S):	2010/77895 ; 2010/77972
COUNSEL:	G Ikners - offender Nikolovski
SOLICITORS:	Director of Public Prosecutions Gregory J Goold Solicitor

SENTENCE

1 HIS HONOUR: Blagoya Nikolovski and Velko Kostovski appear for sentence after having pleaded guilty to a number of offences. They each also ask that I take into account further offences of two respective Forms 1.

2 Before I deal with the substance of the matter let me immediately address an issue of law which arose during the proceedings. I will examine the matter of law now because of its importance to the assessment of the appropriate sentences.

3 The offenders pleaded guilty to multiple offences under s 112(2) of the Crimes Act, offences of break and enter and commit serious indictable offence. In each case the serious indictable offence committed by the offenders was stealing, the circumstance of aggravation relied on for each offence was that the offenders were in company.

4 The particular matter of law which arose concerned the way in which a judge is to assess the objective gravity of offences under s 112(2) given that a standard non-parole period of five years applies. It is to be noted firstly that stealing is one of the less serious forms of serious indictable offence which could be committed by an offender who commits an offence under s 112(2). For example, at the other end of the scale a person could break and enter and then sexually assault someone who was inside the premises. This conduct would also be covered by s 112(2).

5 A second thing to note is that under s 105A of the Crimes Act there are many other more serious forms of aggravation than the one alleged in the present case, namely that the offenders were in company.

6 The issue becomes: what is the range of objective seriousness of offences covered by s 112 so that I can assess whether the particular offence falls within the middle of the range of objective seriousness and if it doesn’t, the extent to which it is above or below that mid-range.

7 In my view it would be wrong to assess these offences having regard only to other offences of break enter and steal whilst in company. Instead the proper range encompasses at one end of the range, offences of break, enter and commit serious indictable offence where the serious indictable offence committed is one of substantial gravity and where multiple circumstances of aggravation, including the more serious forms of aggravation, are present.

8 At the other end of the range a less serious form of an offence under s 112(2) would be an offence where the serious indictable offence committed is at the low end of the range of offences described as “serious indictable offence” and there is a single circumstance of aggravation alleged, it being one of a less serious circumstances of aggravation.

9 That is not at all to say that an offence of break enter and steal, aggravated by the circumstances that the offender was in company, can never be in the middle or even above the middle of the range of objective seriousness, of course it can. But the range of s112(2) offences is much wider than only offences of break, enter and steal in company.

10 What I have said is entirely consistent with the decision of the Court of Criminal Appeal in R v Huynh [2005] NSWCCA 220. There the Court held that:

“the fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself” --

And I emphasise “of itself”

“determine where the offence lies in the scale of gravity of offences against s112(2). Certainly one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the “serious indictable offence” is larceny, being classified as in the middle of the range.”

11 And as regards to the circumstance of aggravation:

“the assessment of objective gravity must be made by reference to the particular facts of the case. There is no gradation of the circumstances of aggravation set out in s105A. In saying this, I would accept that, generally speaking, certain of the circumstances of aggravation specified would, as a matter of commonsense, appear to be more serious than others ... but all depends upon the particular circumstances of the individual case”.

12 What the Court held in Huynh is entirely consistent with the now somewhat old, decision of the High Court in Ibbs v R [1987] HCA 46; (1987) 163 CLR 447, a case which stands for the proposition that not all forms of conduct covered by a particular offence creating section, are of the same objective gravity.

13 To summarise the approach that I will take in this case:

• The fact that the serious indictable offence committed by these offenders was stealing rather than a more serious indictable offence, and the fact that there was but a single circumstance of aggravation and that circumstance of aggravation was less serious than most, if not all,of the other circumstances of aggravation do not of themselves mean that the offence must necessarily be below the middle of the range of objective gravity of offences under s112(2) Crimes Act.

• The other circumstance of the offence, for example the amount of property stolen, the damage caused when entry was gained, repeated offences on the same premises, may well suggest that a particular offence of break, enter and steal in company is in the middle of the range or even above the middle of the range for objective seriousness of offences under s112(2).

• But in assessing where in the range a particular offence falls, that assessment is not to be made by considering only other offences for break, enter and steal in company.

14 Those statements of principle should really be uncontroversial, being consistent with the Court of Criminal Appeal and High Court decisions I have already mentioned, but they did excite some opposition from the Crown and so it was appropriate that I began these remarks on sentence by stating quite clearly the legal approach which I will take.

15 Let me now turn to the offences and the offenders.

16 Both offenders are to be sentenced for a number of serious aggravated break enter and steal offences, six in the case of Mr Kostovski and four in the case of Mr Nikolovski. Attached to one of Mr Kostovski’s matters, (an offence committed on 31 January 2010) are nineteen similar matters on a Form 1. Attached to one of Mr Nikolovski’s matters, (also the offence of 31 January 2010) are seven similar matters.

17 The two offenders, together with others whom I will soon mention were part of an organised operation by which retail premises were broken into and substantial property taken. To give some idea of the amount of property involved, the retail value of the goods relating to Mr Kostovski’s offending is over $600,000 while that relating to Mr Nikolovski’s offending is over $250,000.

18 Strangely, the statement of facts tendered by the Crown details the offences in reverse chronological order. Despite the intellectual difficulties this creates in appreciating the course of conduct engaged in by the offenders, to avoid confusion I will set out the offences in the same manner the Crown did.

19 The two offenders were both arrested on 28 March 2010 after they each committed an offence (count 1 on their respective indictments) at about 9pm on Sunday 28 March 2010. Police watched as the two offenders entered into premises adjacent to a retail store known as “Greater West Tools”. They saw the offenders leaving the rear of that shop and piling property in a nearby laneway. The offenders then reversed a motor vehicle close to the stockpile and began loading the property into that car. A police car entered the laneway and stopped in front of the offender’s car. The two offenders ran away but they were later arrested nearby. The motor vehicle was searched and a large number of power tools were found. Further power tools which had not yet been loaded into the car were found as well.

20 Upon further enquiries the police discovered how the offenders had got into the retail store. They had bashed a hole in the brick wall about 850 millimetres high and 650 millimetres wide. The full list of the property stolen by the offenders appears on p3 of the two statements of facts tendered for each offender. There were seventy-one separate tools and tool sets stolen in the course of this offence.

21 Although both offenders initially declined to answer questions put to them by police they both later changed their minds and made full admissions to a number of other offences including, in each case, offences where they were suspected of involvement and offences where police did not suspect them.

22 The second offence which the offenders must specifically be sentenced, occurred earlier in time, on 23 March 2010, early in the morning. On this occasion the two accused got into the same store using a different method. They first cut a chain-link fence, then Mr Kostovski went to the rear door of an adjoining shop and opened an unlocked steel door. He went inside to find another door secured with a padlock. He broke through that door and both he and Mr Nikolovski entered the premises adjacent to Greater West Power Tools. To get into the power tool shop they broke through a common wall made of tin and MDF. They used tin snips to cut through the tin and forced the MDF away which allowed them to access to the mezzanine level of Greater West Power Tools. The two of them stole a large number of tools. On this occasion 38 tools or tool sets valued at over $17,000.

23 Again going backwards in time we come to 21 March 2010 and an offence committed by Mr Kostovski without the involvement of Mr Nikolovski. On this occasion Mr Kostovski was in company with a man by the name of Billy Illievski. The offenders went to the Good Guys electrical store in Caringbah and drilled a large hole through a fire door which allowed Illievski to reach through the door and open it. That process seems to have caused an alarm to be activated but Mr Kostovski and Mr Illievski nevertheless managed to steal seven laptop computers and some large LCD computer monitors. That property was loaded into a motor vehicle, driven away and later sold.

24 The offence of 10 March 2010 was committed by both offenders who appear for sentence today together with another person called Matthew Brady. On the evening of 10 March 2010 the three of them went to the premises of Uniden Australia in Banksia. They cut a hole in a perimeter security fence and then used a crowbar to break the locking mechanism on the rear entry door. Once inside three gained entry to a locked security cage inside the premises from where they stole 161 GPS navigation units, 46 corded phones and 118 cordless phones. The total value of the property being in excess of $54,000. They would have stolen even more except for the fact that they were disturbed by a garbage collector.

25 The previous offence committed by both offenders was on 31 January 2010. On this occasion the two offenders were in company with both the other males that I have mentioned so far, Billy Illievski and Matthew Brady. The target this time was a Harvey Norman store in Alexandria. To gain access to the store a fence was cut, a hole was drilled in a fire door, and a crowbar was used on a second fire door. Whilst inside the offenders were captured on closed circuit television placing a large quantity of property into garbage bags. The total retail value of the property taken on this occasion was over $72,000, it consisting of computers, iPhones, iPods, GPS navigation systems and other electrical equipment.

26 The remaining offence to be the subject of a specific sentence was committed by Mr Kostovski and Mr Illievski. The two of them went to the Amazon Outdoor store in Wetherill Park where a cordless drill was used to cut a large hole in the fire door at the rear of the store. A second piece of equipment, a sabre saw, was then used to make a large hole enabling the two of them to get inside. Through this means they stole twelve assorted GPS fish finding navigation systems and over two hundred fishing reels, the total value of the property being $58,000.

27 I mentioned before that both offenders asked me to take into account further offences on Forms 1. In Mr Kostovski’s case there are nineteen offences starting from 7 July 2009 and ending on 7 March 2010. In Mr Nikolovski’s case there are seven offences from 20 January 2010 to 7 March 2010.

28 To say that these two men were involved in substantial criminality is something of an understatement. It appears that Mr Kostovski although being the younger of the two, was much more heavily involved than his uncle, Mr Nikolovski. A police officer who was called by the Crown gave evidence that Mr Nikolovski was a minor player when compared to his co-offender. He only became involved at the request of his nephew Mr Kostovski, rather than the other way around. Mr Nikolovski was not involved in the disposal of the goods for example which meant that when it came time to him assisting the authorities he was not able to provide as much information as Mr Kostovski who was much more heavily involved in these many offences.

29 Mr Nikolovski came to Australia as a child having been born in Macedonia. He left school at a relatively young age and to this day has literacy problems. He has worked from time to time but has been in receipt of a disability support pension, as a result of anxiety issues, since approximately 1999. He is currently in a relationship. He and his partner have been together for the last fifteen years and have a daughter. However the relationship has not been an easy one with the offender’s gambling and drug use causing obvious and predictable difficulties. At the time he was approached by his nephew to become involved in these offences he was experiencing significant panic attacks and anxiety. He has had a gambling habit most of his life but things had got so bad that at the time he was asked to become involved in these crimes he was in significant debt, to the extent that his family were suffering, the offender’s partner having to borrow money from friends simply to put food on the table for herself and her children.

30 He has a criminal history and has served prison sentences in the past for break enter and steal, sexual assault, drug supply and other offences as well. However he now says that his criminal behaviour is at an end, in particular because of his decision to assist the authorities. The offender had not long been in custody after having been charged with one of these offences when he contacted the officer-in-charge and indicated a willingness to assist them both in the prosecution of his co-offenders in these matters, Mr Illievski and Mr Brady, but also by providing information regarding other offences. I will not set out in great detail, the nature of the assistance for obvious reasons, but I will note that he has promised to give evidence for the Crown, that he has provided information to police which goes beyond what he knows about the offences for which he is to be sentenced and that both he and his family have been threatened as his assistance to the police has become relatively widely known especially in the Macedonian community. The information is valuable and the threats are genuine. There have been significant consequences for the offender and his family already, and these are unlikely to disappear anytime soon.

31 The assistance affects the sentence I will impose upon the offender in very many ways. The utilitarian benefit to the authorities through the pleas of guilty and the assistance; the consequences for the offender and his family in providing that assistance; the fact that it will be difficult for the offender to commit further offences in the future and that his assistance is evidence of genuine remorse, are all of obvious relevance.

32 In my view the appropriate discount for assistance and plea of guilty is fifty per cent. Mr Ikners on behalf of Mr Nikolovski suggested a higher discount but in my view this is not one of those rare cases where a discount of more than fifty per cent is appropriate. In any case there is the significant constraint that the sentences I impose upon the offender must not be unreasonably disproportionate to the objective gravity of what he has done and in the circumstances of this case, to allow a discount of more than fifty per cent would breach that constraint. These were very serious offences, not only with the amount of property taken quite large and some premises were the subject of repeated offending but significant damage was done to various premises as the offenders broke their way in.

33 I note that there are prospects for the offender’s rehabilitation but even despite the fact that he has assisted the authorities, I am unable to find that those prospects are good, that the onus of proof of course, being on the offender. His criminal history, his background, and his motivation for offending are all factors which prevent me finding the offender has proved that his prospects of rehabilitation are good.

34 The offender is entitled to have me take into account that he admitted to offending that the police did not suspect him of, that he was asked to join this scheme by others rather than being the person who asked someone to join the scheme and, as I have mentioned, that he was not a major player in this offending once he agreed to join in, being regarded as his co-offenders as rather unreliable. That unreliability being likely due to his drug use. Further, in contrast to his co-offender his offending extended over a relatively short period, approximately two months.

35 I should also say that I have to ensure that one offender does not have a justifiable sense of grievance when he compares this sentence with that I will impose on the other.

36 Mr Ikner’s asked that I find special circumstances in his client’s case. I have to be careful not to double count, as many of the matters Mr Ikner’s relied on I have already taken into account in deciding the overall term. Nevertheless I will enlarge the period of eligibility for parole at the expense of the non parole period because of the need of the offender to be assisted to overcome those problems, particularly gambling and drugs, which have played a part in his offending. There is the mathematical issue regarding partial accumulation of sentences as well.

37 I will discuss the objective gravity of these offences after setting out Kostovski’s subjective circumstances.

38 I turn now to Mr Kostovski. Although considerably younger than his co-offender, Mr Kostovski was much more heavily involved, performing a more serious role and committing a larger number of offences. The offender was raised in Australia by his parents until they separated when he was sixteen. Since then he has lived with his mother and at times with his current partner.

39 He was expelled from school at the age of fifteen and has worked for lengthy periods since then. His employment was affected by a significant work accident for which he is currently receiving compensation. Since then he has had only a few casual periods of employment performing light duties only.

40 Like his uncle, Mr Kostovski has problems with drugs and gambling, both activities which require significant sums of money. As well as those factors the offender became responsible for a debt owed by one of his friends. He told the Probation and Parole Service as well as Dr Allnutt, that it was this debt combined with his drug use and gambling problems which played a significant part in the commission of these offences.

41 He also assisted the authorities both in relation to his current offences and other criminal activity of which he was aware. Once more I will say very little about the nature of that assistance, beyond noting that, as with his co-offender’s assistance, it came early, was valuable, appears to be accurate and has had significant consequences for both him and his family.

42 His father gave evidence of a specific threat as a result of which he and his wife have decided to move. The offender has been the victim of significant violence whilst in custody and the risk to his safety will remain upon his release from custody. As with his co-offender, the level of that assistance is significant and so for the reasons I gave earlier I will discount the sentence I would otherwise have imposed, by fifty per cent to reflect both the assistance and utilitarian value with a plea of guilty.

43 The assistance is also relevant in other ways. In particular in demonstrating his remorse and suggesting that it is less likely that he will commit further offences in the future.

44 The offender has a relatively lengthy criminal history including periods of imprisonment for break enter and steal offences. Clearly the sentences imposed upon him for those matters did little to deter him. I also note that the present matters show offending extending over a nine month period. These factors suggest that in the absence of the offender’s assistance, the prospects of him avoiding future offending would be relatively bleak. However, as I mentioned earlier, there is now the fact that the offender will be known as a person who has assisted the authorities which will reduce the likelihood of him committing further offences and as well Dr Allnutt reports that if the offender engaged in drug and alcohol rehabilitation, avoided antisocial associates and consulted with a psychiatrist in the future then these factors “bode well for his prognosis”. That of course does not necessitate a finding that he has good prospects of rehabilitation.

45 I have made a finding of special circumstances in Mr Kostovski’s favour based not only on the subjective matters raised by Mr Goold but also because of the mathematical issues which arise from the fact that these sentences will be accumulated.

46 In common with his co-offender, Mr Kostovski told police about offending of his which they did not suspect. I will of course take that into account.

47 Finally, I return to where I started - an assessment of the objective gravity of the offences committed by these two offenders.

48 Mr Goold conceded that the offences were in the middle of the range of objective seriousness of aggravated break enter and steal matters. He said that the offences did not extend into the high range by reason of fact that there was no deactivation of alarms, no tampering of CCTV equipment, the offenders used traceable cars and the offences were committed on retail stores so no items of sentimental value were taken. However, I would not accept Mr Goold’s categorisation of these offences. The amount of property taken on each occasion, and the significant damage caused together with the organised nature of the activity, suggest to me that these offences are each above the middle of the range of aggravated break, enter and steal matters. However consistent with what I have said earlier, the appropriate range is not to be determined by looking only at break, enter and steal offences in company but is to be determined by looking at the range of aggravated break, enter and commit serious indictable offences, that is the complete range of offences covered by s112(2) lf the Crimes Act. When I do that I find that the offences are each slightly below the middle of the range in their objective seriousness. Although, as I have repeatedly said, the serious indictable offence committed, stealing in the circumstances of aggravation (of being in company) are in the circumstances of this case, matters which suggest a lower level of objective gravity, the amount of property taken, its value, and the damage caused in obtaining entry point in the other direction.

49 Sentences I impose are as follows. Beginning first with Mr Kostovski. Count 1 the offender is sentenced to imprisonment. I set a non parole period of one and a half years and a head sentence of three years, to date from 28 March 2010.

50 On Count 2 the offender is sentenced to imprisonment. I set a non parole period of one and a half years and a head sentence of three years to date from 28 September 2010.

51 On Count 3 the offender is sentenced to imprisonment. I set a non parole period of one and a half years and a head sentence of three year’s to date from 28 March 2011.

52 On Count 4 the offender is sentenced to imprisonment. I set a non parole period of one and a half years and a head sentence of three years to date from 28 September 2011.

53 On Count 6 the offender is sentenced to imprisonment. I set a non parole period of one and a half years and a head sentence of three years, to date from 28 March 2012.

54 Count 5 the offender is sentence to imprisonment. I set a non parole period of two years and a head sentence of four and a half years, to date from 28 March 2012.

55 This means that the effective sentence is one of a non parole period of four years. The period of eligibility for parole, two and a half years, making a total sentence of six and a half years. The offender will be eligible to be released to parole on 27 March 2014.

56 The sentences for Mr Nikolovski are as follows.

57 On Count 1 the offender is sentenced to imprisonment. I set a non parole period of one year three months, and a head sentence of two and a half years to commence on 28 March 2010.

58 On Count 2 the offender is sentenced to imprisonment. I set a non parole period of one year three months and a head sentence of two and a half years to commence on 28 September 2010.

59 On Count 3 the offender is sentenced to imprisonment. I set a non parole period of one year three months and a head sentence of two and a half years, to commence on 28 March 2011.

60 On Count 4 the offender is sentenced to imprisonment. I set a non parole period of one year and a head sentence of three and a half years to commence on 28 September 2011.

61 The overall sentence in Mr Nikolovski’s case is thus one consisting of an effective non parole period of two and a half years and an overall head sentence of five years, with the offender being eligible to be released to parole on 27 September 2012.

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