R v Mirceski - [2020] NSWDC 695

District Court

New South Wales

Medium Neutral Citation: R v Mirceski [2020] NSWDC 695
Hearing dates: 9 April 2020
Decision date: 14 April 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Bond revoked
Total sentence 3 years 9 months imprisonment; non-parole period 2 years imprisonment.

Catchwords:
CRIME - sentence – aggravated robbery – breach of conditional liberty – opportunistic – “vulnerable” victim - criminal history – drug dependency – purposes of sentencing – totality of criminality – plea of guilty – special circumstances - partial accumulation – COVID-19 – prior head injuries – relationship to drug dependence.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Brown v R [2020] VSCA 60
Callaghan v R [2002] NSWCCA 58
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Kearsley v R [2017] NSWCCA 28
R v Henry [1999] NSWCCA 111; 346 NSWLR 346
R v Lattouf (Unrep. CCA NSW) 12 December 1996
R v XX (2009) 195 ACRIMR 38

Category: Sentence
Parties: Regina (Crown)
Stefce Mirceski (Offender)
Representation: Solicitors:
Ms J Yates (DPP)
Ms N Ralph (offender)

File Number(s): 2019/00107021
Publication restriction: No

Judgment

Stefce Mirceski appears today for sentencing in relation to an offence of robbery of a particular victim who I need not name, committed at Rockdale on 30 March 2019 and immediately before and after the time of the robbery, inflicted actual bodily harm upon the victim. This offence to which he pleaded guilty is particularised as an offence contrary to s 95(1) Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period. The prisoner has been in custody since his arrest on 5 April 2019.
When the prisoner committed the offence on 30 March 2019 he was subject to a bond granted to him at the Sutherland Local Court on 26 June 2018 in respect of an offence of possessing housebreaking implements committed on 21 April 2018. The learned Magistrate, Mr Walsh, sentenced him to a term of imprisonment of 15 months but suspended it pursuant to the then operating s 12 Crimes (Sentencing Procedure) Act 1999. The commission of this offence of robbery is a breach of the condition of that s 12 bond that the prisoner is to be of good behaviour. There is no doubt, having regard to the then operating terms of s 98(3) of the Act, that the bond must be revoked because the Court cannot be satisfied that the failure by the prisoner to comply with the condition of the bond that he be of good behaviour was trivial, nor were there any reasons whatsoever for excusing the prisoner’s failure to comply with the condition of that s 12 bond.
I have read the facts in relation to that offence. It is clear that, having regard to the fact that it is separate criminality, there will need to be a partial accumulation of the sentence I impose for the robbery matter upon the other sentence required to be…

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 Mirceski

Details

AGLC: R v Mirceski [2020] NSWDC 695
Case: [2020] NSWDC 695
Decision Date: 14 April 2020

CaseChat Overview and Summary

In the case of R v Mirceski, the appellant, a repeat offender with a history of drug dependency and prior head injuries, pleaded guilty to the offence of aggravated robbery. The victim, described as "vulnerable" due to their age, was subjected to an opportunistic assault by the appellant. The appellant had breached the conditions of his liberty prior to the commission of the offence. The District Court of Queensland was tasked with determining the appropriate sentence for the appellant's actions, taking into account the totality of his criminal history, the special circumstances of the case, and the purposes of sentencing.

The court identified several key legal issues, including whether the offence was opportunistic, the impact of the appellant's criminal history and drug dependency on the sentencing, and whether the circumstances of the case warranted special consideration. Additionally, the court needed to determine the appropriate sentence, including the non-parole period, while balancing the purposes of sentencing with the need to protect the community.

The court found that the offence was opportunistic, and the appellant's criminal history and drug dependency played a significant role in the commission of the crime. However, the court also recognised the special circumstances of the case, including the appellant's prior head injuries and the impact of COVID-19 on his life. The court opted for partial accumulation of sentences, taking into account the totality of the appellant's criminality. Ultimately, the court determined that a sentence of 3 years and 9 months imprisonment, with a non-parole period of 2 years, was appropriate in this case.

The court revoked the appellant's bond and imposed the determined sentence, highlighting the need to balance the purposes of sentencing with the protection of the community. The court emphasised the importance of addressing the appellant's drug dependency and head injuries in the context of his criminal behaviour, while also ensuring that the sentence reflected the seriousness of the offence and the need for general deterrence.

Orders

Orders of the court

Bond revoked

Total sentence 3 years 9 months imprisonment; non-parole period 2 years imprisonment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Mirceski [2020] NSWDC 695
Hearing dates:	9 April 2020
Decision date:	14 April 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Bond revoked Total sentence 3 years 9 months imprisonment; non-parole period 2 years imprisonment.
Catchwords:	CRIME - sentence – aggravated robbery – breach of conditional liberty – opportunistic – “vulnerable” victim - criminal history – drug dependency – purposes of sentencing – totality of criminality – plea of guilty – special circumstances - partial accumulation – COVID-19 – prior head injuries – relationship to drug dependence.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Brown v R [2020] VSCA 60 Callaghan v R [2002] NSWCCA 58 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Kearsley v R [2017] NSWCCA 28 R v Henry [1999] NSWCCA 111; 346 NSWLR 346 R v Lattouf (Unrep. CCA NSW) 12 December 1996 R v XX (2009) 195 ACRIMR 38
Category:	Sentence
Parties:	Regina (Crown) Stefce Mirceski (Offender)
Representation:	Solicitors: Ms J Yates (DPP) Ms N Ralph (offender)
File Number(s):	2019/00107021
Publication restriction:	No