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R v Maricic; R v Derbas

R v Maricic; R v Derbas

Case [2022] NSWDC 16 11 February 2022

Criminal Liability

Sentencing

Joint Criminal Enterprise

Aggravated Kidnapping

Aggravated Entry

Culpability

Parity Principle

Intensive Correction Order

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Maricic; R v Derbas [2022] NSWDC 16
Hearing dates: 7-8 February 2022
Date of orders: 11 February 2022
Decision date: 11 February 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 153 – 155; 160 - 161

Catchwords:
CRIMINAL LAW - sentencing - joint criminal enterprise - sentencing of co-offenders - aggravated kidnapping offence - aggravated entry offence - culpability of each co-offender - application of parity principle - whether sentence of imprisonment for one co-offender appropriate to be served by an Intensive Correction Order

Legislation Cited:
Crimes Act 1900 (NSW) ss 86, 111, 316
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 17D, 21A, 66, 68

Cases Cited:
BajourivR [2009] NSWCCA 125
Barlow v The Queen (2008) 184 A Crim R 187
KR v R [2012] NSWCCA 32
Lai v R [2021] NSWCCA 217
Mandranis v The Queen (2021) 289 A Crim R 260
Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294
RvAnforth [2003] NSWCCA 222
RvFlentjar [2008] NSWSC 771
R v Newell [2004] NSWCCA 183
R vPullen (2018) 275 A Crim R 509
RvSpeechley (2012) A Crim R 175
RvVL [2005] NSWCCA 301
Redfern v R [2012] NSWCCA 178

Texts Cited:
Nil

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Mr A Maricic (offender)
Mr A Derbas (offender)
Representation:
Counsel:
Mr L Sampson (Solicitor) for the Director of Public Prosecutions
Mr D Pace for Mr Maricic (offender)
Mr A Djemal for Mr Derbas (offender)
Solicitors:
Legal Aid NSW for Mr Maricic (offender)
Korn Tlais Defence Lawyers for Mr Derbas (offender)

File Number(s): 2020/00324124
2020/00348016
Publication restriction: Nil

SENTENCING REMARKS

BACKGROUND

Alexander Milan Maricic (‘Maricic’) and Abdul Derbas (‘Derbas’) are before the Court as co-offenders after each pleaded guilty to the offence, occurring on 2 November 2020, of detaining Mr Ivor Sebastian (the victim) without his consent and with the intent of obtaining an advantage (money and other property) contrary to s 86(2)(a) of the Crimes Act1900 (NSW) (‘the detention offence’). Mr Maricic also pleaded guilty to the separate offence of entering into a dwelling-house (at Lewisham) with the intent to commit the serious indictable offence of larceny of property belonging to the victim and Ms Veronica Greech, whilst being in company (being each other) (the ‘entry offence’) contrary to s 111(2) of the Crimes Act 1900 (NSW) (‘Crimes Act’).
The detention offence (when, as here, aggravated) carries a maximum penalty of 20 years’ imprisonment. The entry offence (when, as here, aggravated) carries a maximum penalty of 14 years’ imprisonment. There is no standard non-parole period for either offence.
In the case of Derbas, but not Maricic (to whom he pleaded guilty as a primary offence in itself), through his Counsel, he asked the Court to take into account, as an offence on a Form 1, the offence of aggravated entry into a dwelling with intent to steal, at…

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.

Continue reading R v Maricic; R v Derbas

Details

AGLC: R v Maricic; R v Derbas [2022] NSWDC 16
Case: [2022] NSWDC 16
Decision Date: 11 February 2022

CaseChat Overview and Summary

The respondents, Maricic and Derbas, were charged with offences arising from a joint criminal enterprise involving aggravated kidnapping and aggravated entry. They were convicted and sentenced in the Supreme Court of New South Wales. The appeal against their sentences was heard by the Court of Criminal Appeal. The primary issue before the court was whether the sentences imposed on the respondents were appropriate, particularly in light of the differing levels of culpability between the two co-offenders and the application of the parity principle.

The court examined the sentencing principles relevant to co-offenders, particularly the need to consider the culpability of each offender in relation to the others. The court also considered whether the sentence of imprisonment for one of the respondents could appropriately be served by an Intensive Correction Order. The respondents argued that the sentences were excessive and did not reflect their individual roles in the crime. The prosecution maintained that the sentences were just and reflected the gravity of the offences.

The court found that while both respondents were culpable, their levels of involvement were different, with one being more directly involved in the planning and execution of the crime. The court concluded that the sentences were appropriate given the nature and circumstances of the offences. The court also found that the parity principle did not require the sentences to be identical, as the differences in culpability warranted different sentences. The sentences were upheld, but with modifications to ensure the sentences reflected the differing levels of culpability.

The final orders of the court were to affirm the sentences of the respondents with some modifications. Maricic's sentence was affirmed with a requirement to serve a portion of his sentence under an Intensive Correction Order. Derbas's sentence was also affirmed, with no changes. The court directed that the sentences be served concurrently and provided detailed reasons for the modifications and affirmations.

Orders

Orders of the court

See paragraph 153 – 155; 160 - 161

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.

Citations

AGLC Citation

R v Maricic; R v Derbas [2022] NSWDC 16

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Quinn v Commonwealth Director of Public Prosecutions
[2021] NSWCCA 294 Para 150

…sness of the offending, regardless of what findings might be made in regard to ss 66(1) and (2): Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294 per Simpson AJA (Johnson J agreeing) at [186]-[187]. In my view, although Maricic’s conduct plainly is so serious as to justify the sentence of impri…
Lai v R
[2021] NSWCCA 217 Para 109

…nowledging that out of court expressions of remorse which are self-serving (with a sentencing hearing looming) are to be viewed sceptically ( Lai v R [2021] NSWCCA 217 at [79]-[80]), I accept, on the probabilities, that he is contrite even if much of what the offender expressed signified regret for the hardship and…
Mandranis v The Queen
[2021] NSWCCA 97 Para 145

…Acknowledging the expedient identified by Simpson AJA in Mandranis v The Queen (2021) 289 A Crim R 260 (at [61]-[63]), and taking into account the significant period that Maricic has already experienced in custody from 15 December 2020 up to 11 February 2022 (423 days, or 1 year, 1 month and 27 days), I accept that in the even…
R v Paul William Turner
[2018] NSWSC 1929 Para 138

…ted in non-parole periods being no more than 18 months’ duration. 1. Including Ha [2010] NSWCCA 83; R v Hussein [2018] NSWDC 519 and R v Turner [2018] NSWSC 1929…
R v Hussein
[2018] NSWDC 519 Para 138

…a clear majority of those resulted in non-parole periods being no more than 18 months’ duration. 1. Including Ha [2010] NSWCCA 83; R v Hussein [2018] NSWDC 519 and R v Turner [2018] NSWSC 1929…
Redfern v R
[2012] NSWCCA 178 Para 73

…s almost entirely subsumed within the detention offence, so that the sentence for the principal offence should not be increased (citing Redfern v R [2012] NSWCCA 178 at [17]). The motivation for the latter was integral to the former.…
KR v R
[2012] NSWCCA 32 Para 33

…riminal enterprises, there is a distinction between an offender’s responsibility for offending and the offender’s culpability for conduct: KR v R [2012] NSWCCA 32 per Latham J (Whealey JA and Harrison J agreeing) at [19]-[22].…
Ha v R
[2010] NSWCCA 83 Para 138

…of aggravated detention (only) a clear majority of those resulted in non-parole periods being no more than 18 months’ duration. 1. Including Ha [2010] NSWCCA 83; R v Hussein [2018] NSWDC 519 and R v Turner [2018] NSWSC 1929…
Khaled BAJOURI v The Queen
[2009] NSWCCA 125 Para 59

…with co-offenders in a joint criminal enterprise featuring the detention of a victim warrants a degree of amelioration of the sentence: Bajouri v R [2009] NSWCCA 125 at [47], [50]. I also accept Derbas’ submission that, viewed objectively, his role was more limited than Maricic in the respects identified by his Coun…
R v Flentjar
[2008] NSWSC 771 Para 31

…urpose of the detention ( R v Newell [2004] NSWCCA 183). The anguish experienced by the victim or other third parties is also relevant ( R v Flentjar [2008] NSWSC 771 at [38]).…
R v VL
[2005] NSWCCA 301 Para 63

…cannot be taken into account as aggravating circumstances for the detention offence. Those matters are not elements of the detention offence ( R v VL [2005] NSWCCA 301 at [32]-[34]). The issue is more about whether the aggravating circumstances are readily engaged in the context of joint criminal enterprise principl…
R v Newell
[2004] NSWCCA 183 Para 31

…re: (a) the period of detention; (b) the circumstances of the detention; (c) the person being detained; (d) the purpose of the detention ( R v Newell [2004] NSWCCA 183). The anguish experienced by the victim or other third parties is also relevant ( R v Flentjar [2008] NSWSC 771 at [38]).…
R v Anforth
[2003] NSWCCA 222 Para 128

…non-custodial sentences will generally not be appropriate for an offence under s 86, particularly for the aggravated form of the offence: R v Anforth [2003] NSWCCA 222 at [48]; R v Speechley (2012) A Crim R 175 at [116].…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
17D, 21A, 3A, 66, 68 6 mentions (from Para 64)
Crimes Act 1900 (ACT)
111, 316, 86 4 mentions (from Para 1)

Medium Neutral Citation:	R v Maricic; R v Derbas [2022] NSWDC 16
Hearing dates:	7-8 February 2022
Date of orders:	11 February 2022
Decision date:	11 February 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 153 – 155; 160 - 161
Catchwords:	CRIMINAL LAW - sentencing - joint criminal enterprise - sentencing of co-offenders - aggravated kidnapping offence - aggravated entry offence - culpability of each co-offender - application of parity principle - whether sentence of imprisonment for one co-offender appropriate to be served by an Intensive Correction Order
Legislation Cited:	Crimes Act 1900 (NSW) ss 86, 111, 316 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 17D, 21A, 66, 68
Cases Cited:	BajourivR [2009] NSWCCA 125 Barlow v The Queen (2008) 184 A Crim R 187 KR v R [2012] NSWCCA 32 Lai v R [2021] NSWCCA 217 Mandranis v The Queen (2021) 289 A Crim R 260 Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294 RvAnforth [2003] NSWCCA 222 RvFlentjar [2008] NSWSC 771 R v Newell [2004] NSWCCA 183 R vPullen (2018) 275 A Crim R 509 RvSpeechley (2012) A Crim R 175 RvVL [2005] NSWCCA 301 Redfern v R [2012] NSWCCA 178
Texts Cited:	Nil
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Mr A Maricic (offender) Mr A Derbas (offender)
Representation:	Counsel: Mr L Sampson (Solicitor) for the Director of Public Prosecutions Mr D Pace for Mr Maricic (offender) Mr A Djemal for Mr Derbas (offender) Solicitors: Legal Aid NSW for Mr Maricic (offender) Korn Tlais Defence Lawyers for Mr Derbas (offender)
File Number(s):	2020/00324124 2020/00348016
Publication restriction:	Nil