R v Nikolovski - [2005] NSWCCA 60

CITATION:
R v NIKOLOVSKI [2005] NSWCCA 60

HEARING DATE(S): 3 February 2005

JUDGMENT DATE:

3 February 2005

JUDGMENT OF:
Hulme J at 1; Studdert J at 15

DECISION:
Appeal dismissed

PARTIES:
Regina
Jimmy Demitri Nikolovski

FILE NUMBER(S):
CCA 2004/2713

COUNSEL:
Crown: E Wilkins
Applicant: M Johnston

SOLICITORS:
Crown: S Kavanagh
Applicant: SE O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0426

LOWER COURT JUDICIAL OFFICER:
Armitage DCJ

- 5 -

2004/2713

STUDDERT J
HULME J

R v Jimmy Demitri NIKOLOVSKI

Judgment

1 HULME J: On 19 March 2004 this Applicant for leave to appeal was sentenced by Judge Armitage in respect of two offences committed on 31 August 2003. The first was that of robbery whilst armed with an offensive instrument namely a syringe and the second was of detaining the victim of the robbery with the intention of obtaining an advantage for himself.

2 In respect of the first of these offences the Applicant was sentenced to imprisonment for 5 years including a non-parole period of 3 years and 9 months both periods to date from 7 September 2003. The sentence in respect of the second was imprisonment for 3 years including a non-parole period of 2 years and 3 months to date from 7 December 2005. There was thus an effective sentence of 5 years and 3 months and an effective non-parole period of 4 years and 6 months.

3 The sole ground of appeal is that the sentencing Judge erred in failing to take into account the effect of accumulation in setting a non-parole period.

4 The circumstances of the Applicant’s offending were summarised by his Honour in words which it is convenient to quote:-

“In essence the facts are that at about 9.50am on 31 August 2003, the victim, a student then aged 19, parked her father’s car in the car park of the Wallsend Plaza shopping centre. As she was leaving the car, she became aware that someone standing near the vehicle. She then saw this offender open the door and lean into the vehicle towards her. He threatened her with a syringe, to which was attached a needle. He said, “Give me all your fucking money.” As he said that he pushed the syringe towards here neck. He repeated the demand and said he was not joking. He repeatedly threatened to kill her if she did not hand over her money. He repeatedly told her not to look at him. When she did hand over some money he demanded more. He threatened to give her AIDS and told her she meant nothing to him. He asked for bank cards and credit cards. When the victim said she did not think she had any, he told her not to lie to him. When she did produce a credit card he asked or the PIN number and again threatened to kill her. She gave him the number and told hi there was no money in the account. The offender said…

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 Nikolovski

Details

AGLC: R v Nikolovski [2005] NSWCCA 60
Case: [2005] NSWCCA 60
Decision Date: 3 February 2005

CaseChat Overview and Summary

In the matter of R v Nikolovski, the appellant, Jimmy Demitri Nikolovski, sought leave to appeal against his sentence imposed by Judge Armitage. Nikolovski was convicted of robbery while armed with an offensive instrument and detaining the victim with the intention of obtaining an advantage for himself. The trial judge sentenced Nikolovski to a total of five years and three months imprisonment, with a non-parole period of four years and six months. The sole ground for appeal was that the sentencing judge erred in not considering the effect of accumulation in setting the non-parole period. The appeal was heard by Hulme J and Studdert J of the NSW Court of Criminal Appeal on 3 February 2005.

The primary legal issue before the court was whether the trial judge erred in setting the non-parole period for the appellant's sentence. The court had to determine whether the trial judge overlooked the principle of accumulation when setting the non-parole period, which represents the period during which the offender is ineligible for parole. The appellant argued that the short parole period, which was approximately 14% of the total sentence, indicated that the trial judge had overlooked the principle of accumulation. The prosecution contended that the trial judge had properly considered the appellant's offending conduct, history, and prospects of rehabilitation in setting the non-parole period.

Hulme J, delivering the judgment of the court, held that the trial judge had not overlooked the principle of accumulation. The court observed that the trial judge had considered the serious nature of the offending, the appellant's history, and the limited prospects of rehabilitation when setting the non-parole period. The court also noted that the appellant had participated in drug and alcohol programs in the past without long-term benefit. The court was satisfied that the sentence imposed was appropriate and that no lesser non-parole period was warranted. Studdert J concurred with the judgment of Hulme J. Consequently, the appeal was dismissed.

The court dismissed the appeal and affirmed the sentence imposed by the trial judge.

Orders