R v Milojevic

[2020] NSWDC 441

District Court

New South Wales

Medium Neutral Citation:

R v Milojevic [2020] NSWDC 441

Hearing dates:

28 May 2020

Date of orders:

5 June 2020

Decision date:

05 June 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate term of imprisonment of 5 years 3 months with a non-parole period of 2 years 8 months

Catchwords:

CRIME – Property offences – Break, enter and commit serious indictable offence

 

CRIME – Violent offences – Reckless wounding

 SENTENCING – Relevant factors on sentence – Multiple offences – Accumulation, concurrency and totality

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Cahyadi v R (2007) 168 A Crim R 41

Category:

Sentence

Parties:

Regina (Crown)
Jake Michael Milojevic (Offender)

Representation:

Counsel:
Mr D Murray (for the Offender)

Solicitors:
Mr J MacMillan (for the Crown)

File Number(s):

2018/00080584

Publication restriction:

Nil

SENTENCE

1. Jake Michael Milojevic 23 years of age, appears for sentence in relation to the following offences:

2. Aggravated break and enter and commit serious indictable offence (larceny) pursuant to s 112(2), Crimes Act. The maximum prescribed penalty for that offence is 20 years’ imprisonment. There is a prescribed standard non-parole period of five years.

3. Reckless wounding in company (victim Gary McKew) an offence pursuant to s 35(3), Crimes Act. The maximum prescribed penalty for that offence is ten years’ imprisonment. The standard non-parole period is four years’ imprisonment.

4. When dealing with the offender for the offence of aggravated break and enter and commit serious indictable offence (larceny), the Court is taking into account a further offence on a Form 1 of assault occasioning actual bodily harm while in the company of Dalton Hough (victim Isaac McKew), an offence pursuant to s 59(2), Crimes Act. The maximum prescribed penalty for that offence is seven years’ imprisonment. There is no prescribed standard non‑parole period.

5. The offender pleaded guilty to each offence on 14 November 2019. That plea was entered in the Gosford District Court. Prior to the plea being entered, the offender had been arraigned and there had been a separate trial application. The matter had not yet been listed for trial. Having regard to the timing of the plea, I propose to allow a discount on sentence for the plea of 15%.

6. The offender has been in custody since 1 January 2018. He has been serving a balance of parole of one year two months and two days between 1 January 2018 and 2 March 2019. He is also serving an aggregate sentence of five and a half years’ imprisonment with a non-parole period of three years and eight months imposed on 5 March 2019 in relation to offending that occurred on 1 January 2018. The non-parole period for that sentence commenced on 1 August 2018 and expires on 31 March 2022.

The Agreed Facts

7. As at December 2017 the victim Gary McKew had lived at 4 White Swan Avenue, Blue Haven for 28 years. His premises consisted of a single storey two bedroom house with a carport to the side. At the time, the victim’s son Isaac McKew was also staying at the house.

8. On 8 December 2017 at around 10.45pm the victim locked the front and back doors of his house and went to bed. Around 11.50pm he was awoken by his son Isaac who yelled out, “There’s someone at the door”. The victim got out of bed and heard a male voice yelling through the front door, “Open the fucking door”. The victim heard the security screen door being ripped from its hinges and pushed at the front door to prevent it from opening. At the same time several people were kicking at the front wooden door and a glass bottle was thrown through one of the front windows, causing it to smash. The victim heard someone yell, “I’ve got a gun, I’ll fucking shoot you cunt”. The victim released his hold on the door and four males entered his house by kicking the door in. Two of these males were this offender, Jake Milojevic, and the co‑accused Dalton Hough. A number of other males remained outside the house.

9. The victim’s son confronted the four males and was pushed against the wall behind the front door, causing a large hole in the gyprock. The victim’s son was repeatedly kicked and punched to his head and body, including being hit with pot plants and a pot plant stand. The victim’s son lay on the ground in a foetal position.

10. Two of the males then turned towards the victim Mr Gary McKew and punched him to the stomach, causing him to fall back to the ground. They then dragged the victim up the hallway to his bedroom with his arms stretched behind his back and yelled, “Where are the drugs, where is the money?”. The victim was then dragged back to the lounge room and was struck across the head with a metal wrench, causing a large laceration. Fearing he was going to be assaulted further the victim took a few hundred dollars from a pair of shorts he had worn the previous day and gave it to the males. Following this all four males ran from the house.

11. The victim and a neighbour called triple‑0 and the police arrived soon after. The neighbour described seeing a group of at least ten males outside the victim’s premises and running up and down the street. The victim also heard one of the males yell, “Smash the bedroom window and get him out”.

12. The victim and his son were taken by ambulance to Wyong Hospital in the early hours of the morning.

13. As a result of the assault the victim Mr Gary McKew suffered a 4 to 5 centimetre laceration to the back of his head that required three stitches, as well as bruising to his arms. His son Isaac McKew received head lacerations. He also received treatment for abrasions to his abdomen, shoulder, hand and toe.

14. In addition to the cash, the males stole a leather bag belonging to Mr Gary McKew that contained all of his personal and identification cards and was valued at $180.

15. Crime scene police examined the premises and collected a number of exhibits and samples for further forensic testing. DNA was subsequently located from a number of areas in the house that matched the profile of this offender, Mr Milojevic.

16. On 1 January 2018 this offender was arrested. He participated in a record of interview and denied being involved in the offending.

17. Those facts clearly disclose very serious objective criminality. The conduct can properly be described as a home invasion in circumstances where this offender and his co‑offender used force to enter the victim’s home and then inflicted violence upon the occupants of the home. Such conduct can simply not be tolerated in a civilised society and warrants condign punishment. Both general and specific deterrence are important considerations on sentence.

Assessment of objective seriousness

Aggravated break and enter (knowing persons inside) (larceny)

18. In determining the objective seriousness of the offence of aggravated break and enter (knowing persons inside) (larceny), I have taken into account the following factors:

1. The manner in which entry was gained to the house, namely by kicking the front door in at a time when the victim was trying to prevent the door from being opened;

2. This offender was in the company of three other persons inside the house;

3. The amount of property taken was a few hundred dollars and a bag valued at approximately $180 belonging to the victim;

4. Damage was caused not only to the front door but also a bottle was thrown through a window.

19. Having regard to those factors, I assess the objective seriousness as being within the middle of the range.

Reckless wounding in company (victim Gary McKew)

20. In assessing the objective seriousness of the offence of reckless wounding in company, I have taken into account the following factors:

1. The nature and extent of the violence used, namely the victim was punched in the stomach, dragged up the hallway then back to the lounge room before being struck with the wrench.

2. This offender was in company with three other males.

3. A weapon was used to inflict the injury.

4. The injury sustained was a 4 to 5 centimetre laceration to the back of the victim’s head which required three stitches.

21. Having regard to those factors, I assess the objective seriousness as being within the middle of the range. Whilst I accept that the injury is at the lower end of seriousness for this offence, I consider that the circumstances in which it was inflicted warrant the finding of midrange objective seriousness.

Aggravating Factors

22. The Crown relied upon a number of aggravating factors as follows:

1. That a weapon was used during the commission of the offence.

In circumstances where I have taken into account the use of a weapon during the assessment of the objective seriousness of the offending, I do not propose to take it into account as an aggravating factor.

2. That the offending occurred in the home of the victim.

I accept that this aggravating factor is established.

3. That the conduct was unprovoked.

I accept that that aggravating feature is also established.

4. That the offences were committed whilst the offender was on conditional liberty.

I accept that aggravating feature is established in circumstances where the offender was on parole for an offence of assault with intent to rob armed with an offensive weapon at the time of the commission of this offence.

No victim impact statement

23. Whilst there is no victim impact statement before the Court from either of the victims, I have no doubt that this would have been a wholly terrifying ordeal for each of them.

24. One of the purposes of sentencing is to recognise the harm done to each victim (see s 3A(g), Crimes (Sentencing Procedure) Act).

Subjective circumstances

25. The offender is now 23 years old.

26. He has an extensive juvenile criminal history commencing in 2014 and has served multiple control orders.

27. He has an adult criminal history commencing in 2016. In that year he was dealt with for an offence of assault with intent to rob armed with an offensive weapon. He was sentenced to a term of imprisonment of three years and four months with a non-parole period of one year and eight months.

28. In 2019 he was dealt with for the following offences: demand property by force in company with intent to steal; aggravated robbery inflicting actual bodily harm (two counts) and stalk and intimidate intending to cause fear. In respect of those offences he was sentenced to aggregate sentence of five years and six months with a non-parole period of three years and eight months. As I previously indicated, that non‑parole period expires on 31 March 2022.

29. The remarks on sentence for each of the sentences imposed in 2016 and 2019 have been tendered during the sentence proceedings. I note that I was the sentencing judge with respect to the 2019 sentence.

30. The offender had been released on parole on 1 July 2017, that is, approximately six months before he was returned to custody on 1 January 2018.

31. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to any leniency on sentence. Also, specific deterrence is an important consideration given the very serious offences of violence that the offender has previously committed.

Material tendered on behalf of the offender

32. The following material was tendered on behalf of the offender during the sentence proceedings:

Exhibit 1 – A letter under the hand of Molly Rosewarn, undated;

Exhibit 2 - A letter under the hand of the offender;

Exhibit 3 - Defence written submissions.

33. The offender’s background is outlined in the letter written by the offender. The offender grew up in a housing commission area at Blacktown. He described that he lived in an area where there was crime and he had witnessed violence. He also described there being domestic violence in his home. He indicated that he and his mother eventually moved to the Central Coast to escape the domestic violence.

34. Five to seven years after moving to the coast his mother commenced a relationship with another partner. The offender described that he did not generally get along with his stepfather and ultimately, he left home and was homeless. He described himself as couch surfing and sleeping in parks. At that time he described that he started to experiment with drugs. The offender indicated that he would purposely get locked up so he would have a bed. He gave that account in relation to his offending while he was a juvenile.

35. He then described that he started going back to his home. He reported there was more domestic violence in his home and he subsequently became depressed and anxious and began to rely on drugs such as ice and cannabis.

36. After entering into custody, he describes that he started doing programs to address his mental health issues.

37. In relation to the last occasion when he was in the community he said he abstained from drugs for about four months. Around that time he lost his job and he relapsed into drug use. At that time, the offender described that he began committing offences to support his drug habit.

38. The offender frankly acknowledged his downfall is his drug use. He indicated that he has changed his life in the past two years and he has abstained from using drugs. He indicated he is now engaged and he no longer has contact with anyone other than his mother and his fiancé.

39. He described that he is having a difficult time in custody because, as a consequence of a sexual assault that occurred whilst he was in juvenile detention, he is now targeted. That matter is currently before the Courts. He described that his depression has been “taking a turn for the worse” and there is a lack of mental health support whilst in custody. He indicated to the Court that he wanted “the smallest bottom sentence” so “I’m not so deep into this place I can’t get out”.

Other evidence on behalf of the offender

40. The Court has also had regard to a letter prepared by Ms Rosewarn, who is the offender’s current partner. She is 23 years of age. She works full‑time for the NRMA as a customer service representative. She described that she has been in a relationship with the offender for three and a half years. She has known the offender for eight years. She currently lives with the offender’s mother and his two younger sisters. She outlined that she remains in daily contact with the offender via phone calls. She observed that the offender has expressed regret for his offending. She described that she has seen changes in the offender whilst he has been in custody over the last two years. Specifically, he is now drug free and in her opinion custody had had a positive impact. Her future plans include intending to start a family with the offender.

Submissions on sentence

41. The Crown relied upon oral and written submissions. Mr Murray of Counsel on behalf of the offender also relied on oral and written submissions.

42. The Crown referred the Court to a number of relevant authorities with respect to each of the offences. The Crown also summarised sentencing statistics. In oral submissions the Crown conceded that in order to reflect to the totality of the criminality there would be some concurrency between the sentences imposed today and the existing sentence that the offender is serving.

43. Mr Murray on behalf of the offender summarised the offender’s history of offending. It was submitted that the objective seriousness of the offences was below the midrange category. It was further submitted that the offender is still a relatively young person and, despite his criminal history, has now began to plan for a future without offending. It was noted that he had ceased drug use and he has the support of his partner, Ms Rosewarn. It was submitted on behalf of the offender that the sentence imposed should not be one that is crushing.

44. I have taken into account the submissions on behalf of the Crown and the offender in determining the appropriate sentence.

Prospects of rehabilitation

45. Any view of the offender’s prospects of the offender’s prospects of rehabilitation must be necessarily be guarded at this stage having regard to his criminal history. The Court is hopeful that with the support of Ms Rosewarn the offender is able to look forward to a more positive future upon his release from custody. He is still a relatively young man and can look forward to many positive years ahead if he remains committed to his current intention to put his life of crime behind him. I have no doubt that it will be a difficult road ahead for the offender but if he maintains his current commitment to being drug free, I expect that will ensure he has a much more prosperous future.

Remorse

46. Whilst the offender has expressed regret for his offending to Ms Rosewarn, I am unable to find on the current evidence that there is any evidence of remorse in accordance with s 21A, Crimes (Sentencing Procedure) Act.

Totality

47. In circumstances where I am dealing with the offender for more than one offence, I am required to consider the question of totality. Further, I am also required to consider the question of totality in circumstances where the offender is currently serving a sentence.

48. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so the sentences should be concurrent, but if not there should be some accumulation. (see Cahyadi v R (2007) 168 A Crim R 41).

49. In circumstances where the two offences for which the offender is being sentenced relate to separate and distinct criminality, I am satisfied partial accumulation is appropriate. Further, I am satisfied that the sentence imposed today must be partially accumulated on the sentence the offender is currently serving.

Form 1 offence

50. In sentencing the offender I take into account the Form 1 matter in accordance with the principles enunciated in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] 56 NSWLR 146.

Special circumstances

51. I am satisfied special circumstances is established in circumstances where, firstly, the offender will need extended supervision upon release from custody in order to give him the best chance of remaining abstinent from drugs and, secondly, in circumstances where this sentence will be partially cumulative upon an existing sentence which will result in a need to modify the ratio to maintain an overall appropriate ratio between the non-parole period and the parole period.

Determination

52. In determining the appropriate sentence, I have had regard to s 3A, Crimes (Sentencing Procedure) Act and the purposes of sentencing.

53. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

54. I have had regard to the objective gravity, the relevant prescribed maximum penalties and the prescribed standard non-parole periods in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.

55. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.

56. In accordance with s 53A(2)(b), the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows:

1. Aggravated break and enter (commit serious indictable offence) (larceny) taking into account the Form 1 offence, a total term of four years and three months.

The starting term for that indicative sentence was five years, which I have discounted by 15% for the plea of guilty.

2. Reckless wounding in company; a total term of three years and four months.

The starting indicative term was four years, which I have discounted by 15% for the plea of guilty.

Orders

1. Mr Milojevic, in relation to each offence of aggravated break and enter and commit serious indictable offence (larceny) and reckless wounding in company you are convicted.

1. I sentence you to a total aggregate sentence of five years and three months with a non-parole period of two years and eight months to date from 1 August 2021 and to expire on 31 March 2024.

2. The balance of the term is two years and seven months to expire on 30 October 2026. The earliest date upon which you will become eligible for parole is 31 March 2024.

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Decision last updated: 13 August 2020