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.

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] NSWDC 296
Decision Date: 10 December 2010

CaseChat Overview and Summary

The appellants, Kostovski and Nikolovski, were convicted of a series of break and enter offences committed while in company, and appealed against their sentences. The appeal was heard by the Supreme Court of Victoria. The legal issues before the court were the appropriate sentence for each appellant considering their repeated offending, the seriousness of the offences, and their cooperation with authorities. The court had to balance the need for punishment and deterrence with the possibility of rehabilitation.

The court considered the appellants' offending history, the circumstances of the current offences, and their cooperation with the police. While the offences were serious, involving multiple break and enters and thefts, the court recognised the appellants' assistance to authorities in identifying other offenders and their otherwise unblemished prior records. The court found that the appellants' cooperation was genuine and assisted in the apprehension and prosecution of other offenders, which was a mitigating factor. However, the repeated nature of the offending and the need for general deterrence were also significant considerations.

The court determined that the appropriate sentences should reflect both the need for punishment and the mitigating factors of cooperation. For Kostovski, the court set a non-parole period of four years and a total term of six and a half years. For Nikolovski, given his lesser role in the offences and greater cooperation, the non-parole period was set at two and a half years with a total term of five years. The court emphasised the importance of the appellants' cooperation in reaching these sentences, but also highlighted the seriousness of their offending.

The orders of the court were that Kostovski’s 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. Nikolovski’s 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.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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