R v Nikolovski

[2018] NSWSC 1156

Supreme Court

New South Wales

Medium Neutral Citation:	R v Nikolovski [2018] NSWSC 1156
Hearing dates:	2 February 2018 and 24 July 2018
Decision date:	24 July 2018
Jurisdiction:	Common Law - Criminal
Before:	Wilson J
Decision:	1 For the offence of the robbery whilst armed with a dangerous weapon committed on 7 March 2015, at Wickham in the State of New South Wales, the offender, Jesse Nikolovski is convicted. 2 I sentence him to a term of 6 years imprisonment, to date from 11 November 2017 and expiring on 10 November 2023. 3 I specify a non-parole period of 3 years and 9 months, which will expire on 10 August 2021. 4 All charges referred to this Court on a s 166 certificate are dismissed. 5 I direct the Registrar of the Supreme Court to provide a copy of the report of Dr Sathish Dayalan dated 4 July 2018 to the Officer in Charge of Justice Health
Catchwords:	CRIME – SENTENCE – robbery whilst armed with a dangerous weapon – home invasion whilst co-offender armed with a shortened rifle – offender believed rifle to be unloaded – rifle discharged and occupant of the home killed – co-offender sentenced for murder – question of the liability of offender for the wounding of the deceased – parity with co-offender – offender serving sentences for other armed robberies - significant issue of totality
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Category:	Sentence
Parties:	Regina Jesse Nikolovski
Representation:	Counsel: Mr L Carr as Crown Prosecutor Mr P Massey for offender   Solicitors: Solicitor for Public Prosecutions (NSW) Mr M Ramsland for offender
File Number(s):	2015/331375
Publication restriction:	None

Judgment

1. HER HONOUR: In September and October 2017, Jesse Nikolovski stood trial, charged with the murder of Robert Parry on 7 March 2015 and with robbing Mr Parry of items of property, whilst armed with a dangerous weapon, he having entered pleas of not guilty to both charges.

2. At the close of the Crown case, the offender was acquitted of count 1, the murder of Mr Parry, at the direction of the Court. Two days later, on 11 October 2017, he was again arraigned on count 2 of the indictment, the charge of robbery whilst armed with a dangerous weapon. He entered a plea of guilty to that offence and now stands to be sentenced for his crime.

3. Armed robbery with a dangerous weapon is an offence contrary to s 97(2) of the Crimes Act1900 (NSW) and carries a maximum penalty of 25 years imprisonment.

The Facts of the Offence

4. In the early hours of 7 March 2015, Robert Parry disturbed three intruders, who had entered his home via an open door, intending to take drugs or money. The intruders were Daniel Petryk, Phoebe Bronner and the offender, Jesse Nikolovski. Daniel Petryk was armed with a .22 calibre rifle that he had secured in readiness for the robbery. Mr Parry was shot at close range during the robbery, by Daniel Petryk, but this offender played no part in the commission of that offence.

5. The Crown’s case against the offender for robbery was largely reliant upon the evidence of Phoebe Bronner, who gave evidence at trial with the benefit of an indemnity against prosecution. It is necessary to be very careful in the assessment of Ms Bronner’s evidence, given that she was criminally involved in these events and co-operated with the authorities in exchange for immunity. Any fact adverse to the offender must be proved beyond a reasonable doubt in accordance with The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, at [27]. Careful scrutiny of Ms Bronner’s evidence in particular, is required.

6. On 6 March 2015, Daniel Petryk arranged to borrow a .22 calibre rifle from a friend, Jeremy Gorman. There is no evidence that the offender was aware of this arrangement or played any part in it. His knowledge of the weapon and the use Daniel Petryk proposed to make of it to commit an armed robbery was gained when he saw the gun produced by Daniel Petryk in the early hours of 7 March 2015.

7. Daniel Petryk had met up with Phoebe Bronner and the offender on the late evening of 6 March 2015. At that time Ms Bronner lived with the offender at his family home in Mayfield. The two had been at home during the day on 6 March 2015, but left during the course of the evening and drove to the home of Daniel Petryk at Windale to see him. The offender was driving a car that belonged to a family member.

8. The three went for a drive, during which Daniel Petryk directed the offender to an address at Redhead, where he said he had something to pick up. Jesse Nikolovski drove as directed, stopping the car at a residential property so that Daniel Petryk could “grab something” that had been left for him at the fence line. Petryk got out of the vehicle briefly, while the other two remained in the car. After he got back into the car and the drive resumed, Ms Bronner saw that Daniel Petryk had a gun. The gun had initially been in a bag, but Petryk removed it from the bag soon after the journey recommenced.

9. The offender became aware of the presence in the car of a gun at about that time. Ms Bronner told the jury that the offender was “angry” and “freaking out” about the gun and did not want it in the car. Nevertheless, he continued to drive.

10. At some point after that, Daniel Petryk told his companions that he knew of a house where his brother used to buy pot and where the door was left open. He said the he would sneak in and “grab the pot” (T485:01). Ms Bronner said that there was some conversation about using the gun, with Daniel Petryk saying he would use it to “look scary”, in the event that anyone at the house came out. He began to give directions to the house.

11. During the course of the drive, the car was stopped at a location nominated in the evidence only as “a really long road” (T485:50). Whilst Daniel Petryk got out of the car, Ms Bronner and the offender initially remained in the car, arguing. After some minutes, Ms Bronner heard a bang from outside the car, but the evidence did not establish what the sound was caused by or whether the offender heard it. Petryk thereafter returned to the car.

12. At some point when the car was stopped on the long road Ms Bronner and the offender got out of the car and went to the boot, where they got two pairs of gloves and some other items of clothing, to be used to cover their identity. Although Ms Bronner did not say so directly in her evidence, necessarily, an agreement had been reached by that time that the premises referred to by Daniel Petryk was to be robbed by the three.

13. In the car during the drive to Wickham, Ms Bronner agreed to put the gun inside her clothing to hide it. Daniel Petryk told Ms Bronner and the offender that the gun was not loaded and he passed it to Ms Bronner as she sat in the front passenger seat. She placed it down her pants and underneath the jumper that she was wearing.

14. The offender drove to Wickham, following the directions given to him by Daniel Petryk. The car was stopped a little before three o’clock that morning, with the offender parking it at the top of Grey Street, near its intersection with Union Street, some small distance and around the corner from Mr Parry’s home.

15. Ms Bronner returned the gun to Daniel Petryk and the three got out of the car. Each of them donned items of clothing to disguise themselves, covering hands and faces. The offender and Ms Bronner used items of clothing they had in the car. Daniel Petryk used clothing from a bag that he had. Daniel Petryk removed an axe from the boot of the car. He tried to pass it to the offender, but he did not take it. Ms Bronner armed herself with it instead, saying in evidence that she “half put it down” her pants (T496:28). They started walking to the house in Dickson Street. Daniel Petryk was armed with the gun which, unbeknownst to the offender, was loaded and capable of being discharged.

16. The plan agreed between the three intruders was to sneak into the Wickham house and if there was no-one around, take any cannabis found there. The gun and axe were to be used to “look scary” if there was any person present, so that the cannabis could be taken (TT497:38 - T498:01).

17. When they arrived at the Parry house at 12 Dickson Street, Wickham, some minutes before 3am, there was a single light illuminated. The front door stood open. Daniel Petryk was carrying the gun, probably concealed, at least initially, in his clothing. He went into the house. Ms Bronner followed, she said, out of curiosity, passing through the enclosed veranda and entering the lounge room by a step or two. Jesse Nikolovski was behind her, being close enough to touch her. He was probably at the entrance to the lounge room or just outside it on the veranda.

18. Mr Parry, who had been in his bedroom towards the rear of the property, emerged from his room and walked along a hall to the lounge room. He was holding a drink can in one hand. He saw the intruders and he told them to“fuck off out of his house” (T501:30). He raised the hand holding the can towards Daniel Petryk, who was in the lounge room ahead of his co-offenders, as if to push or strike Petryk with the can. Daniel Petryk discharged the gun, shooting Mr Parry at close range.

19. Phoebe Bronner backed out of the lounge room and onto the veranda. She could hear Mr Parry making sounds. The offender remained briefly at the entrance to the lounge room, telling Petryk to get out. Ms Bronner left the house, waiting briefly outside, before running to the car.

20. Alan Parry, disturbed by the noise, awoke. He heard thumping and what sounded like and argument, with a male voice demanding money and drugs. He got up and went into the lounge area. Ms Bronner caught sight of him briefly before she left the house. Alan Parry saw his son lying on the floor. He saw two disguised intruders, whom he took to be men. He saw that one man had a sawn off rifle and what he thought to be a “Crocodile Dundee knife” or bayonet, whilst the other was unarmed. The first man was Daniel Petryk, (although I do not conclude that he was additionally armed with a knife). The second unarmed man was the offender who had not, in those few seconds, followed Phoebe Bronner from the house.

21. The offender and Daniel Petryk left the house soon after. Petryk had taken a small quantity of cannabis leave and some cigarettes.

22. As Ms Bronner approached the parked car, she threw the axe that she had been armed with into a drain in the gutter at the top of Grey Street, from where it was later recovered by police. The offender and Daniel Petryk each joined her at the car, getting in. The offender drove off at speed.

23. Ms Bronner described the mood in the car after the robbery and shooting as “stressed” (T505:49). The offender abused Daniel Petryk as an idiot and there was an argument between them because of Petryk’s earlier assertion that the rifle was not loaded, an assertion shown by events to have been false.

24. The offender drove to his Mayfield home. At the house Daniel Petryk showed the offender and Phoebe Bronner some cannabis leaf and some cigarettes that he said had come from the Wickham house. He gave them some cigarettes, leaving at a later stage and taking the cannabis and gun with him. The offender and Ms Bronner remained at Mayfield.

25. At Dickson Street, Alan Parry called a friend for help and an ambulance and police were contacted. Sadly, Robert Parry died from a single gunshot wound. The investigation into the offences began.

26. The offender and Ms Bronner met up with Daniel Petryk later that day and spoke briefly. Daniel Petryk, who by that time was aware that Mr Parry had died from his injuries, told the offender and Ms Bronner what he had learned and that he had gotten rid of the gun. He said that he was leaving the State. Petryk gave the offender and Ms Bronner $50 in cash and they drove off.

27. The police investigation first focussed on Ms Bronner, then on Petryk and the offender. The offender was arrested on 11 November 2015. He refused to be interviewed by investigating police.

The Offender’s Criminal History

28. The offender is no novice when it comes to the commission of crime, having commenced his offending lifestyle as a child in 2009 at age 16. In March 2009 the offender was dealt with for break, enter and steal, being ordered by the Children’s Court to undergo nine months of supervised probation.

29. During the currency of the probation order in August 2009, the offender was dealt with for an offence of take and drive conveyance, charged against him in November 2008 and a larceny offence from June 2009. A 12 month bond and an eight month probation order were, respectively, imposed upon him. Each involved supervision. That bond and the probation order, together with the March 2009 probation order, were called up by the Children’s Court, the offender having breached each. In November 2009 he was made subject to further supervised probation orders as a result of the call-ups. A further take and drive conveyance offence from June 2009 was dealt with at the same time, with a 12 month supervised probation order imposed.

30. Also dealt with in November 2009 in the Children’s Court were a group of offences committed earlier, in September of that year, including take and drive conveyance, larceny and a furious driving charge. A range of penalties, including the offender’s first control orders, were imposed.

31. A year later, a further count of take and drive conveyance, together with a charge of enter enclosed lands, brought the offender back before the Children’s Court. He was 17 and received a probation order. Subsequent crimes would come before the adult courts.

32. The first of these were charges of knowingly dealing with the proceeds of crime and two counts of robbery whilst armed with an offensive weapon, committed in May 2011 when the offender was 17 years old and dealt with at law in July and August 2012.

33. The facts of those offences are before the Court in the Crown case. The robberies, contrary to s 97(1) of the Crimes Act, were both committed against licensed hotels. On 4 May 2011, the offender, who was armed with an object which looked like a gun and which he told his victim was a gun, robbed the Fire Station Hotel at Wallsend, when in company with a second male. The robbers gained entry to the hotel after closing hours by removing panes of glass in windows at the back of the hotel. The attendant, who was locking up for the night, was menaced, and forced to hand over a considerable sum of money.

34. The second robbery took place on 17 May 2011, when the offender and two others entered the Blackbutt Hotel at New Lambton in the early hours of the morning, and held up a staff member who was present cleaning the premises. The robbers were armed with a knife, a stick, and a pool cue. The victim was required to fill a bag with money from the safe in the hotel. Also stolen was a quantity of alcohol and some other items. The offenders fled with the cash and those other items.

35. The following day the offender used some of the proceeds of his crimes to purchase a car, paying cash for the vehicle.

36. In July 2012 (with a correction to the sentence made in August 2012) the offender was gaoled by the District Court at Newcastle, receiving terms of 12 months for dealing with the proceeds of crime, and 5 years for each armed robbery, to date from 16 June 2011. There was a considerable degree of leniency extended to him by the sentencing court, with orders that the offender serve his sentences concurrently in a juvenile detention facility, and be released to parole after only 2 years. The 2 year non-parole period expired on 15 June 2013.

37. Upon release to parole the offender was extradited to the Australian Capital Territory to face a charge of aggravated robbery committed on 28 May 2011, prior to his entry to custody in New South Wales. That offence was also one committed at a licensed venue, at a time when the offender and two others were armed with a broom or a shovel handle, a replica firearm and a spanner. Staff at the club were menaced, and a large sum of money was stolen.

38. He was sentenced for the ACT offence, which carried a maximum penalty of 25 years imprisonment, on 24 October 2013, receiving a sentence of 2 years and 6 months imprisonment, with the ACT equivalent of a 6 month non-parole period. The sentence dated from 14 June 2013, with the custodial portion of it expiring on 13 December 2013. From 14 December 2013 to 13 December 2015, the offender was subject to a good behaviour order, that being the balance of the sentence of 2 years and six months imprisonment.

39. That good behaviour order was current at the time of the commission of this offence. The offender was at liberty, also subject to parole for the two New South Wales armed robbery offences at this time. That is an aggravating feature.

40. Both sentencing courts, in New South Wales and in the ACT, concluded that the offender had good prospects of rehabilitation. Those conclusions were proved wrong by the commission of the remaining offences on the offender’s criminal history, being four counts of robbery whilst armed with an offensive weapon [as recorded in the criminal history].

41. The facts of those offences, and the remarks of the sentencing judge, form part of Exhibit SB on sentence. Each occurred after the offence at Dickson Street, at a time when the offender had left Newcastle and was spending a considerable amount of time in Sydney.

42. The first offence is one of robbery with an offensive weapon committed in the early hours of 21 April 2015. The offence had been planned by the offender and another man, and steps taken by them to acquire both the means of disguise and weapons to affect the robbery. The offender and his companion, armed with a baseball bat, a metal pole and a knife, confronted staff members emerging from the Royal Hotel at Leichhardt as they were leaving the premises after closing. A staff member was forced back inside the hotel and made to hand over cash on threat of violence being done to him.

43. The second robbery was also committed in the hours of darkness, on 11 May 2015, and targeted a hotel, the Red Lion at Rozelle. The offender and three others confronted staff after closing and demanded money. The robbers were armed with knives and a meat cleaver. They threatened significant violence. Staff handed over cash and the offender and his cohort fled.

44. On 19 May 2015, the offender and two others held up the Henson Hotel at Marrickville, being armed at the time with knives. The modus operandi was the same as the earlier robberies and involved confronting hotel staff at closing time, forcing them back into the hotel and demanding cash with threats. A significant sum was taken.

45. The fourth robbery took place on 28 May 2015 at the Belfield Bowling Club and involved the offender and two others. The crime was planned and executed in a similar way to the earlier offences. A number of meat cleavers were used and a staff member was physically assaulted and threatened. A large sum of money was taken.

46. The offender was arrested in June 2015, having been disturbed in the course of preparations for another robbery on the evening of 16 June 2015. A hotel at Annandale had been selected, weapons and disguises obtained and the offender and his co-offenders were ready to enter the hotel when police intervened. The offender fled but was apprehended the following morning.

47. The offender was dealt with before the District Court for three of the armed robberies, and the final conspiracy to commit an armed robbery, with the fourth of the robberies and an offence of detain for advantage before the Court on a Form 1 document. He had entered late pleas of guilty to each.

48. The offender was aged 21 at the time of the 2015 offences and 24 when he was sentenced in the District Court. The sentencing court had regard to his earlier diagnoses of oppositional defiance disorder and attention deficit disorder and his more recent history of drug use, together with matters referred to in a psychiatric report (which is also before this Court) from Dr Henderson. He was given the benefit of a finding of remorse, although his prospects of rehabilitation were said to be guarded due to his drug addiction and his mental health issues.

28. Ultimately, the offender was sentenced to an aggregate term of eight years and six months imprisonment, to date from 17 June 2015 concluding on 16 December 2023. A non-parole period of five years and six months will expire on 16 December 2020.

29. Since entering custody the offender has been dealt with institutionally for prison offences of possessing a mobile phone or similar item, failing a drug test (in October 2016), disobeying a direction, resisting a search, and failing to comply with correctional centre routine. The last offence was committed on New Year’s Day this year, and there have been no further infractions.

Pre-sentence Custody

51. When, on 11 November 2015, the offender was charged with the armed robbery of Mr Parry, he was already in custody with respect to the Sydney armed hold-ups, having been earlier charged with them and remanded in custody.

52. The offender entered custody with respect to those matters on 17 June 2015. The offences were dealt with on 11 December 2017 and he is presently serving the aggregate sentence then imposed upon him.

53. He has thus served no time in custody solely referable to this offence.

The Offender’s Personal and Subjective Circumstances

54. The offender was 21 years of age in March 2015 and he is now aged 25 years. He has spent much of his adult life in custody, and a portion of his youth in detention.

55. That seems to be despite a high level of family support, support which continues.

56. The offender did not give evidence before this Court, although he wrote a letter setting out the regret and grief he feels for the events of this night, his sorrow for the sufferings of Mr Parry and for those of his own family.

Background and Psychological Assessment

57. Medical reports and other reports tendered to the Court show that the offender’s mother has been endeavouring to have her son treated for what were initially regarded as defiance or attention disorders since about 2007, when he was aged 14. He showed clear signs of behavioural difficulties from an early age, but was not diagnosed with oppositional defiance disorder and attention deficit disorder until a later stage. He was medicated as a teenager, but the medication had side effects and was discontinued.

58. Before the Court was a report from Dr John Miller, a consultant psychiatrist, dated 24 October 2007, Dr Miller having examined the offender at age 14 when he was in year 8 at school. Dr Miller reported that the offender had been “disruptive, easily distracted, struggles with reading but can concentrate on computers and TV”, and had “a shortened fuse and became obsessed with things”. The doctor described the offender as “hyperactive”, and demonstrating “clear evidence of ADD”. Dr Miller prescribed the offender Ritalin, to assist with concentration, with a view to the later use of a longer-acting medication, Concerta.

59. The offender also tendered a letter from Mr Phillip Screen, a principal psychologist at In Vivo Health Services dated 31 March 2017, confirming that the offender had been referred to Mr Screen’s practice in December 2014 by Dr Stanley Tang regarding assessment and management for symptoms of anxiety and major depression, due to “his current mental health conditions deteriorating with mood swings and impulsive behaviour”.

60. Much of the information concerning the offender’s history and circumstances was provided by psychiatric assessment from Dr Antony Henderson of 18 August 2017, that being the report which was before the last sentencing court to deal with the offender. In compiling his report, Dr Henderson conducted an interview via audio visual link with the applicant in August 2017 and also had regard to other documentary material that was supplied to him.

61. The offender told Dr Henderson that he was unemployed at the time of the 2015 Sydney offences, and that he had ceased his former occupation as a demolition labourer due to conflict with his employer. The offender stated that he did not seek other employment as “I was on drugs… happy one minute, enthusiastic, then hated everyone”.

62. Dr Henderson found the offender’s account of his employment and dismissal to be “consistent with psychomotor acceleration and irritability associated with a mood elevated state”, and possibly indicative of a diagnosis of bipolar disorder, or a substance induced mood disorder.

63. The offender reported to Dr Henderson that he had experienced difficulties controlling his anger since the age of 8, when he began experiencing episodes of sudden and unprovoked anger, and outbursts or “rage attacks”. During these episodes, the offender said that he would “lose control” and was prone to violence. The anger, however, would quickly dissipate and he would become sad and feel remorseful.

64. The offender told Dr Henderson that these “rage attacks” had continued into adulthood, although he had learned over time not to physically strike family members. He did, however, report getting into both verbal and physical fights with other individuals, including verbal confrontations with correctional officers since his entry to the custodial system.

65. The offender also told Dr Henderson that since his mid-adolescence, he had experienced episodes of sadness and feelings of worthlessness and would sometimes have such feelings for a prolonged period. He described withdrawing from communication with others and a loss of appetite. He referred to suicidal thoughts, and said that he had previously engaged in self-harming behaviour.

66. The offender also reported contrasting periods of extreme happiness, or “highs”, during which he felt refreshed and energetic, despite limited sleep, and felt confident, stronger, impulsive and invincible. During these times the offender told the doctor that his use of drugs increased. The offender reported that these moods had commenced at age 12 or 13, prior to the commencement of his illicit substance abuse, but that he had used drugs as a means of addressing those mood disorders.

67. The offender reported that he had continued to experience mood symptoms since his entry into custody and he disclosed that he had continued to use amphetamine and Buprenorphine on a weekly basis. The offender’s custodial record for the last six months or so would seem to suggest that that may no longer be the case.

68. Dr Henderson canvassed the offender’s past psychiatric history, which included a review by a school counsellor at age 12, early diagnoses of oppositional defiance disorder, a diagnosis of a drug-induced psychosis at the age of 16, and a family history of bipolar disorder.

69. As at 2015 when the offender entered custody, he had been diagnosed with anxiety and depression and an attention deficit disorder. Bipolar disorder was suspected, but an appointment made by the offender’s mother with a specialist in that field was not kept due to the offender’s incarceration.

70. The offender’s use of drugs seems to have come about, at least in part, because of the disorders from which he suffered. He has reported to health professionals in the past having self-medicated with illicit drugs.

71. Also before the Court was a report from Dr Sathish Dayalan of 4 July 2018. Dr Dayalan, as that date suggests, has seen the offender more recently since his entry into custody and, broadly speaking, the doctor’s report confirms that which is contained in the report of Dr Henderson. Dr Dayalan also confirms what was said to the Court on oath from Mrs Nikolovski, the offender’s mother, that being that he has had a diagnosis of bipolar disorder since his entry into custody. It would appear that that disorder is now being treated and has stabilised, at least to some extent.

72. In her evidence to the Court, the offender’s mother, Mrs Nikolovski, told the Court of the offender’s medical issues and particularly of her struggle over the years to have him properly diagnosed. It seems to have been Mrs Nikolovski who raised the possibility of a bipolar disorder, of which there is a strong family history, as an issue, and it was Mrs Nikolovski who sought to have her son investigated for such a condition. That condition, as I have observed, has now been diagnosed and the offender is receiving appropriate treatment for bipolar disorder. Mrs Nikolovski considers the behaviour of her son to be much improved. She regards him as less impulsive than he has previously been, and much more thoughtful in his demeanour and general conduct.

The Gravity of the Crime

73. In considering this matter for sentence, a preliminary issue is whether the offender is to be sentenced on the basis that he bears criminal responsibility for the shooting of Mr Parry, although not for Mr Parry’s death. The Crown argues that he can be sentenced on that basis. Over objection, it sought to tender a number of statements from family members of Mr Parry setting out the terrible impact that his violent death has had upon those who loved him.

74. Whilst considering and determining that issue must seem to be a process which is both artificial and esoteric to those who had been deprived of a much-loved brother and friend, it is important when assessing the objective gravity of the offence of robbery whilst armed with a dangerous weapon to separate that offence from the offence of the murder of Mr Parry.

75. Daniel Petryk was convicted and sentenced for that crime. On the evidence, this offender played no part in it, it being well outside the scope of the joint criminal enterprise in which he participated. The agreement reached by the offender was to rob the occupants of a residential home of property, utilising an unloaded gun and an axe, and numbers, to frighten any person present into handing over property. That agreement did not contemplate the discharge of the firearm. It could not have done in circumstances where the offender believed the gun to be incapable of discharge for the simple reason that he had been assured it was not loaded with ammunition.

76. In those circumstances, I do not accept that the offender bears criminal responsibility for the discharge of the firearm and the wounding, if not the death, of Mr Parry. In my conclusion, the offender cannot be sentenced for any role in the injuring or murder of Mr Parry.

77. The offender’s crime was to participate in a robbery, carried out by three masked people in company, who deliberately targeted and then entered residential premises in the early hours of the morning at a time when two people were at home, being armed with both a shortened rifle and an axe, and during which property was stolen. His liability, as far as the use of the gun is concerned, is limited to robbery using a gun for the purpose of generating compliance through fear. Consistent with the agreement the offender had reached with Petryk and Bronner, the sawn-off rifle was brandished to frighten the occupants. That the rifle was a shortened and easily capable of concealment, does increase the gravity of its use to some extent in my view, over and above the use of an unmodified dangerous weapon.

78. Whilst the evidence is that the offender did not initiate the plan to rob the occupants of the Wickham house, and he may even have been, at least initially, a somewhat reluctant participant, the offender made a considered choice to join the enterprise to commit the offence. His decision was not an impulsive one.

79. Having joined the enterprise, the offender provided the transport to and from the scene, he swelled the numbers at the house at 12 Dickson Street, thus no doubt heightening the fear likely to have been felt by both Robert Parry and Alan Parry, and benefited from the crime by accepting stolen cigarettes from Daniel Petryk.

80. This is a very serious example of robbery whilst armed with a dangerous weapon.

81. It is submitted on behalf of the offender that, because of the offender’s mental conditions, his moral culpability is mitigated to at least some extent. I accept that at the time of the commission of this offence the offender was suffering from symptomology consistent with conduct disorders, depression and anxiety, and that in all likelihood these symptoms were indicative of an undiagnosed and untreated bipolar disorder.

82. I accept also, in a general sense, that this untreated condition contributed to the lifestyle choices the offender made, particularly his decision to take up drugs. That is its principal relevance, in my view. The circumstances in which the offence came to be committed that, at least initially, the offender demonstrated some sensible unwillingness to be engaged with an offence involving a gun, do not suggest impulsivity. He had time to consider his choices, and ultimately he chose to participate in the robbery, knowing that an unloaded shortened firearm was to be used. That was not an impulsive decision born of mania or some other mental instability. It seems to have had far more to do with the desire for drugs or money for drugs than with mental disorder. I do not, in that event, regard the offender’s moral culpability as reduced.

83. I do, however, have regard in a more general sense to the offender’s then undiagnosed condition. His mother believes that, had the offender been diagnosed with bipolar disorder at a much earlier stage, he would not have taken the path that he did. That may well be so. In that sense, his illness may have contributed to the poor life choices the offender has made, and I have had regard to it in that way.

84. There are a number of matters to which the Court must additionally have regard. As earlier observed, the offender entered a plea of guilty to the s 97(2) offence at the close of the Crown case. It is submitted that his plea should be recognised by a discount on sentence to reflect its utilitarian value. Additionally, it is argued on the offender’s behalf, it is evidence of remorse. I am prepared to accept that the plea is some evidence of remorse and that it is capable of providing some support in that regard for the offender’s expression of sorrow in his letter written to the Court.

85. I do not accept, however, that there is any meaningful utilitarian value from the plea. The plea came only after the whole of the Crown case had been heard. There was some saving in time that would otherwise have been taken up in addresses and summing-up to the jury, but that was very slight. I do not propose, in those circumstances, to award any discount on sentence for such a late plea.

86. It was also submitted that the offender should receive a reduction in sentence because his trial was conducted in an economical way. That was not conceded by the Crown. Whilst I accept that the trial was conducted in a practical and sensible fashion without needless forays into aspects of evidence that were of limited significance, I do not think that that is what the legislature intended to acknowledge by making provision for a person’s facilitation of justice. Whilst the trial may have been sensibly conducted by counsel, the Crown was still put to proof on all elements of the offence, with a positive defence advanced by the offender. I would not, in those circumstances, allow a specific reduction of sentence in recognition of the offender’s willingness to facilitate justice.

87. Parity is another issue to which the Court must have regard. Daniel Petryk was sentenced on 16 February 2018 in this Court to an aggregate term of 26 years imprisonment, comprehending both Mr Parry’s murder and the armed robbery. The sentence indicated for the s 97(2) offence was one of 8 years imprisonment. As the Crown points out, Mr Petryk had a much lesser criminal history than does this offender, but his role in the conduct of the enterprise was much, much greater. Mr Petryk’s subjective case, additionally, was quite limited.

88. Totality was an issue of no relevance in the sentence proceedings for Daniel Petryk, but it is one which is of considerable importance here. The offender committed a series of armed robberies at around the time of this offence and, in other circumstances, he would ideally have faced sentence for all of the 2015 offences, linked as they were in time, before the same court. Because of the way in which these matters proceeded, that was not possible.

89. In sentencing Mr Nikolovski, it is necessary for this Court to have regard to those other sentences and impose sentence for this matter in the context of their existence. The Crown submits the sentence imposed today should commence on 2 February 2018, the date originally fixed for the sentence proceedings. The offender says that no more than one year of the sentence imposed for this offence should be served cumulatively.

90. Some accumulation is clearly required. The sentence imposed for the Sydney robberies cannot and does not comprehend the criminality of this offence. However, the totality principle will, in the circumstances of this case, operate to reduce the period of imprisonment the offender must serve referrable solely to this offence to avoid an overall sentence which is disproportionate to the overall gravity of the 2015 offences.

91. On the basis that some adjustment of the ratio of sentence will be required to give effect to the principle of totality, I make a finding of special circumstances. That does not, in the circumstances of this case, however, mandate a reduced non-parole period. It is simply to recognise the variation in the overall ratio of sentence for the 2015 offences, which will be necessary to give effect to the principle of totality. Even with a sentence which does not import a reduced non-parole period, the period of supervised release that the offender will have available to him will be sufficient, in my view, to facilitate his reintegration into the community.

92. Although there are other aspects of the offender’s subjective case which could give rise to a finding of special circumstances, the mental disorders from which he suffers being an obvious feature, in the overall circumstances of this case I would not reduce the non-parole period to reflect those particular issues. The finding that I have made of special circumstances is purely to deal with the issue of ratio, having regard to the impact of this sentence upon the sentence imposed for the earlier 2015 matters.

93. There is before the Court some evidence of remorse: the offender’s letter, coupled with his plea of guilty. Although untested assertions in unsworn letters or other written documents should ordinarily be treated with a considerable degree of circumspection, I accept that the offender has some insight into the consequences of his crime and is remorseful to some extent. It must be observed, however, that he appears to lay the blame for his participation in this offence, in part at least, at the feet of his then girlfriend and Daniel Petryk. To that extent he has not, it seems, fully accepted his personal responsibility for his decisions and the crime in which he participated. I do, however, accept that there is some degree of remorse.

94. The offender has some prospects for his future. The Court has heard evidence that there is employment available to the offender upon his release from custody. A friend of the offender’s father is in business, a business which he has held for some considerable period, and is prepared to offer employment to the offender, having employed him in the past and found him to be a commendable employee. That is a positive feature of the offender’s case.

95. Although I share the view of the sentencing court that dealt with the Sydney robberies that the offender’s prospects of rehabilitation must remain guarded, there is some glimmer of hope. The offender is fortunate to have the support and, indeed, the considerable support of his family, who have attended Court today in numbers to demonstrate that support. That provides a basis for some hope.

96. It is, however, for the offender to take the support that he is offered by his family and his friends, and to make something of his life upon his release from custody. His future, once his sentence is served, is very much in his hands.

ORDERS

1. For the offence of the robbery whilst armed with a dangerous weapon committed on 7 March 2015, at Wickham in the State of New South Wales, the offender, Jesse Nikolovski is convicted.

2. I sentence him to a term of 6 years imprisonment, to date from 11 November 2017 and expiring on 10 November 2023.

3. I specify a non-parole period of 3 years and 9 months, which will expire on 10 August 2021.

4. Each charge before the Court on a s 166 certificate is dismissed.

5. I direct the Registrar of the Supreme Court to provide a copy of the report from Dr Sathish Dayalan of 4 July 2018 to the Officer in Charge of Justice Health.

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Decision last updated: 26 July 2018