R v Radanovic; R v Howard

[2021] NSWDC 743

District Court

New South Wales

Medium Neutral Citation:

R v Radanovic; R v Howard [2021] NSWDC 743

Hearing dates:

22 November 2021

Date of orders:

22 November 2021

Decision date:

22 November 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

Radanovic: An aggregate term of imprisonment of three years, five months with a non-parole period of 2 years: at [63].

Howard: An aggregate term of imprisonment of 3 years 6 months with a non-parole period of 2 years: [64].

Catchwords:

SENTENCING — Aggravating factors — Home of victim or any other person — Planned or organised criminal activity — Financial gain

SENTENCING — Mitigating factors — Plea of guilty Remorse — Rehabilitation

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Joint sentence proceedings — General principles — Moral culpability — Multiple offences — Aggregate sentences — Purposes of sentencing — Sentencing statistics

SENTENCING — Sentencing procedure — Findings of fact

SENTENCING — Subjective considerations on sentence — Drug addiction — Age of offender — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Henry (1999) 46 NSWLR 346

Bugmy v The Queen (2013) 249 CLR 571

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Dragan Radanovic (Offender)

Kyle Howard (Offender)

Representation:

Mr A Poulos (Solicitor for the Office of the Director of Public Prosecutions)

Ms Mayne (Solicitor of Radanovic)

Mr S Hopper (Counsel for Howard)

File Number(s):

2021/24417; 2021/25573

Judgment

1. On the afternoon of 27 January 2021, 22 year old Kyle Howard and 37 year Dragan Radanovic were involved in a kidnapping and an armed robbery which leads them to them being sentenced today, for the following offences:

1. A charge of take and detain in company with intent to obtain advantage contrary to s 86(2)(o) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period.

2. A count of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The offence carries also a maximum penalty of 20 years imprisonment with no standard non-parole period.

2. The maximum penalties reflect the very serious nature of the offending as it is dealt with by the legislature, and I have to take into account not only those as yardsticks in the sentencing process, but also the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which were helpfully summarised in the written submissions put by Ms Mayne on behalf of Mr Radanovic.

3. The offenders have both pleaded guilty in circumstances justifying a 25% discount for the early plea.

4. It is conceded that a term of full-time imprisonment is appropriate in both cases, and it is unnecessary for me to consider any alternatives.

5. In relation to Mr Radanovic, further confidential material was tendered, in the usual fashion. Noting the open court and lack of non‑publication orders I will only say that the Crown Prosecutor and Ms Mayne are at one as to an appropriate further discount in the range of 5 - 10% being allowed for what was described as low to medium assistance pursuant to s 23. In exercising my discretion, I would allow for the 5% so that a total of 30% discount is to be applied to Mr Radanovic’s sentence.

6. Mr Radanovic was arrested on the day of the offence. Mr Howard was arrested the following day and they have both been in custody since that time. The term of imprisonment should clearly commence from the time at which they were each taken into custody.

7. The agreed facts show that the victim was a 22 year old female who lived with her partner at a unit at Wolli Creek. On the afternoon of 27 January the offenders were depicted on closed-circuit TV walking around her car near her workplace at Kogarah.

8. The victim left her workplace and went to Woolworths at Wolli Creek. All the relevant events were captured on CCTV around the Woolworth’s car park. The victim came back from Woolworths carrying some bags of shopping. She unlocked her car and then she was approached immediately by the offenders. They had masks and hoods on. Howard did not speak, and I will accept from the evidence that has been given by both offenders today that this was as a result of an arrangement that he would not speak given that the victim knew him and would presumably be able to identify him.

9. Radanovic showed her a piece of paper that said “Does this look familiar? Get in the car.” On the piece of paper there were three addresses of family and friends known to the victim and her partner. He said “I got your mum’s address and Kurt’s family’s address”. She froze and then she ran to the driver’s side of the door. There was a scuffle. Radanovic yelled to Howard “Don’t let her close the door” Radanovic sat in the front passenger seat next to the victim and Howard sat in the rear behind her.

10. Radanovic put on white latex gloves. The victim saw that he was holding a black-handled 10 to 15 centimetre knife. He said, “Take us to your house”. He said “Don’t make us get this gun out”. She did not sight a firearm. He said “Don’t call anyone put your phone away”. She started to cry saying “Don’t hurt me. Why are you doing this?” At some stage he said to her “We followed you from work”.

11. They drove near the Novatel Hotel where police were conducting quarantine for COVID-19 purposes. The victim saw the police vehicle and said “Real smart to do this when police are here”, and, he, Radanovic, said “Don’t go in there keep going”. They parked outside the unit complex. They all got out of the car. While walking towards the unit complex she called her partner on the mobile phone and said “You need to come home two people have got into my car and have knives and apparently have a gun”. Radanovic began yelling, “Don’t make a scene hang up” and “Stop crying pull yourself together”.

12. She refused to open the door and again Radanovic said “Don’t make me get the gun out” as he reached into his backpack. She complied, used her security swipe to unlock the door. Radanovic took the phone from the victim and spoke to her partner, Kurt Johnson, and said “You had better get here now and nothing will happen to your girlfriend and family”. Johnson began making his way to the location.

13. The three of them entered the elevator and she took them to her unit. There she saw that Radanovic was holding the knife and Howard was carrying a black duffle bag, while also holding a 60 cm baton with a looped handle at one end and a knife in his right hand. Both were wearing white latex gloves.

14. Radanovic told her to sit on the lounge and remove her Apple watch, phone and bag. There was a roll of duct tape on the table with her belongings which caused her to feel frightened. They rummaged through the unit. Howard stole several items, including a Louise Vuitton backpack, a handbag, a dust bag, a satchel bag, a Versace plate, an iPhone, Apple iPods and loose change, the two mobile phones and $8,100 cash.

15. At one point, Howard walked out on the balcony and the victim heard him say “Cops”.

16. Johnson messaged to say he was 15 minutes away.

17. At about 6:10pm Radanovic said “Get your keys and your phone you are taking us back to where we got in your car”. She escorted them down in the elevator. Howard was carrying the stolen property inside the black duffle bag and was still holding the baton and the knife. By that time Johnson arrived at the location and spoke to uniformed police at the Novatel, he directed police to the front door of the unit complex.

18. The two offenders and the victim got out of the lift, police drew their firearms and told the offenders to get on the ground. Johnson ran inside the complex and pulled the victim away from the offenders.

19. Radanovic complied with police directions and lay on the ground. He was arrested. They found the 60 cm black baton secreted down the front of his pants, the used white gloves, the stolen cash, and a red flick knife and roll of duct tape.

20. Howard returned to the elevator, CCTV footage show him escaping the unit complex via a fire escape, carrying the black duffle bag. The duffle bag was later located and included with all stolen the items to which I have already referred as well as a black serrated knife with a 15 centimetre blade, a roll of duct tape and other items. They located another silver serrated knife with white tape wrapped around the handle on the ground near the rear driver’s side door of the victim’s car. Radanovic’s mobile phone was located on the front passenger seat.

21. Radanovic participated in an interview. He said his co-offender was named Kyle or Kev, someone he had known for a couple of months. Howard was arrested the next day at 7.45pm at Woy Woy.

22. While he denied committing the offences, he said “I do believe I may have been hanging around the people that may have been subject to who was at fault”. He provided a version where he claimed he drove Radanovic to the area with another person named Oscar, which was a fiction, and they dropped Howard off at Marrickville.

23. Howard now concedes that he was untruthful in the version that he provided. Call charge records clearly undermine his version and show that he was in the vicinity of where the offences occurred, and his DNA was found on a blind cord in the victim’s unit despite him stating that he had not been in the apartment.

24. Howard has a very limited record, which included two possess prohibited drug charges dealt with by a fine in 2018, and a small supply dealt with by a bond at the same time, and a negligent driving also in 2018 dealt with by a fine.

25. His subjective case is set out in the history contained in the sentence assessment report and a report of psychologist, Dr Donald Rowe, as well as a number of character references and a letter of apology from the offender. He was assessed as being at a medium risk of reoffending. He has positive family supports and he intends to reside with his mother when he returns to the community. He identified his drug use, prior trauma and mental health issues as being significant factors in his poor decision-making in committing the offences. He felt terrible about the impact the offences would have had upon the victim, acknowledging that she would have been terrified, and indicated a desire to address the various underlying factors regarding his mental health and illicit substance use so as to move toward a more prosocial life. He has done completed the EQUIPS Remand Addiction program and developed insights into the link between his mental health, illicit substance use and criminal behaviour. He was using significant daily quantities of methylamphetamine at the time which distorted his decision-making.

26. His mother has applied on his behalf for him to enter  a residential rehabilitation centre. His mother said that the use of violence was an aberration, he was generally non-aggressive.

27. He acknowledged that he had known the victim for some time prior to the offences.

28. Dr Rowe described him as a remarkably insightful young man, who appeared to have had plenty of time to think about his difficulties and how he arrived in the position that he was today. He grew up in a family home in Bathurst. His parents divorced when he was 11. There was violence and arguments between his parents. He said that he was sexually abused by one of the other fathers while on the cub scouts camp when he was 11, 12 or 13. A number of diagnoses were made by Dr Rowe, including complex PTSD, depression, substance use disorder, and he said it was not surprising due to the effects of his PTSD alone, he was driven to the use of prescription and illicit substances as a form of self‑medication.

29. I accept that his arrest and subsequent incarceration has had a positive effect in that it has put to an end the dysfunctional path which he had succumbed to. He has had time to reflect on his negative mental and behavioural qualities and he has achieved an abstinence from illicit substances which has made him more cognisant and led to an improvement in his state of mind. He now has got a sober mind, feels terrible for scaring the victim and wishes he had gone about it differently and did not involve her.

30. He was making attempts to steer away from drug related activities shortly prior to the offending and he was working for two weeks and trying to get off drugs; had stopped using Xanax and had been to the doctors and been prescribed Avanza. Dr Rowe says that his understanding of the cause of his mental health difficulties will further improve his prospects for recidivism, notwithstanding improvements through his further social and occupational functioning.

31. The criminal behaviour appears to have commenced with his exposure to childhood developmental difficulties followed by a childhood sexual abuse and together with his affliction of ADD led to an uncontrolled mental and behavioural state where he turned to illicit substances as a form of self‑medication.

32. Incarceration during the COVID pandemic has made his experience more arduous than normal and he has been locked in his cell for lengthy periods. The court is well familiar with that type of history and evidence as to the onerous conditions of incarceration during the COVID pandemic, and they are properly taken into account as matters for consideration in the sentencing process.

33. Dr Rowe says he believes that his mental illness, together with his difficult developmental experience has a causal relationship to the commission of the offences rather than simply the presence of anti-social personality tendencies. Notably, his other family members are law-abiding citizens so it is most likely that he would have embarked on a similar path had he not been afflicted with ADD and/or PTSD and/or having received treatment in a proper and timely manner.

34. As I have indicated, there is a letter of apology from the offender, which reflects the sentiments that he has already expressed to the authors of the two documents to which I have referred.

35. His mother acknowledges the sad observation of his behaviour and choices, spiralling downwards over the past five or six years, in the light of his mental health issues, battles with depression and self-loathing and destructive behaviours with drug addiction and hanging around with poor company. She has tried many times to steer him in a better, healthier direction and has assisted with him going to rehabilitation clinics and group therapy. She made the decision to transfer in 2018 to the Central Coast with Kyle in the hope of “healing” him, the change of environment being her main focus.

36. He had a long-term relationship with his girlfriend, but they separated in July 2019 and he began to spiral out of control with substance abuse and hang around with the wrong people. She was constantly concerned about his mental health and depression and could see that he had turned to drugs for escapism. She acknowledges that he needs fulltime rehabilitation or extensive supervision in the community.

37. His former partner, Briony Evans, also speaks in similar terms as to the remorse that he has expressed. As does Mr Freney who has known him for two years. There are also favourable references from Ms O’Reilly, his great aunt, and Mr Wall, a former employer.

38. Mr Radanovic has a relatively limited criminal record. His only time in custody was an eight-month term of imprisonment with a four months non-parole period for driving while disqualified in 2017. His record includes other driving offences dealt with by fines. As far back as 2002 there was an assault occasion dealt with by a Community Corrections Order. In 2012 a possess prohibited drug and other driving offences not involving incarceration.

39. He affirmed in evidence today the accuracy of a history provided to the psychologist, Mr Sheehan. He is of Serbian background. He was raised in the Fairfield area. There were no immediate family issues with substance use, mental illness, domestic violence or criminality. His family home was stable. His adjustment worsened from the age of 13 when he was subject to an episode of sexual abuse from male ground keeper at his school. He was confused and distressed by that experience and subsequently sought to cultivate a strong self-image where he could overcome his feelings of vulnerability. He kept the abuse a secret for years. He had very little contact with his parents after 2016 when his mother and sister moved to Queensland.

40. He did an apprenticeship in carpentry for three years and had a range of skills, but his employment was sporadic and haphazard, undermined by drug use. He worked as a steel fixer and then last worked for a labour-hire agency. He reported social problems in early high school, driven with his alleged experience of sexual abuse. A chronic substance abuse history involving cannabis and MDMA and up to 20 alcoholic drinks each night, and methylamphetamine from age 20.

41. He acknowledged the offending behaviour. He said he had smoked methylamphetamine with the co-offender. There is conflicting evidence from the offenders as to the instigator of the offending and the court is simply not in a position to make a finding, either on balance or beyond reasonable doubt, as to who instigated the offending.

42. When asked how he justified his actions he said, “I was on ice, I didn’t think about it, I should never have done it”. He acknowledged that what he did would have really scared them and traumatised the victim, and she no doubt has long-term effects of looking over her shoulder, being paranoid and fearful, and nobody deserves that.

43. His history was summarised as having been one of a destructive trajectory, following an alleged episode of sexual abuse at age 13, shaping his social behaviour and his inability to cope. These offences are an escalation from his previous offending. He has been abstinent from illicit substances since his arrest and he is actively planning to enter relevant treatment programs once he is sentenced. He needs intervention of a moderate to high intensity and there are several programs both in custody and in the community, which will be of assistance to him.

44. I have a favourable reference from the chaplain, who describes him as a man who is reflective of his mistakes and determined to work hard and re‑establish a good life and not repeat his mistakes. He said to the chaplain, as he did in court, that he will always be a drug addict and everyday will be challenge. He is going to join Narcotics Anonymous. He acknowledges that drugs are not worth it; it is not the life one wants.

45. His godmother has written of the difficult relationship that he had after his parents’ divorce. His father remarried, started a new family, and although he tried to have a relationship with his father, his father did not have any time for him. She acknowledges that he got involved in the wrong crowd, with drugs, and his life began to spiral downwards. She has noticed, having spoken to him while in custody, that he is remorseful and recognises his error of judgment and is looking forward to a quiet and peaceful life when he is released.

46. None of the legal representatives have taken me to any statistics, but I have had regard to the sentencing statistics for both offences. They provide a very blunt indication of the range of sentences that have been imposed, both by way of principal sentences and non-parole periods for these offences.

47. For reasons which were not proffered, the Crown was unable to provide the customary written submissions to the court. However, the Crown put oral submissions in light of the evidence which do not take significant issue with the helpful written submissions prepared by Mr Hopper for Mr Howard and by Ms Mayne for Mr Radanovic.

48. Mr Hopper concedes that there are aggravating factors to be taken into account. When one looks at objective seriousness, the offence involving threatened violence, both offenders being armed is an element of the s 97 offence and does not by itself aggravate that offence. The kidnapping offence is one of detain in company, the aggravating factor of being in company is again part of the offence and cannot be taken into account as a separate aggravating factor for that or the s 97 offence. He concedes that the offending is aggravated by it occurring in the home of the victim and there was a degree of planning which was to a certain extent amateur and had an almost inevitable chance of failure. It was committed for financial gain, essentially to fund a drug addiction. He points to mitigating factors being the absence of any record of violence, his good prospects of rehabilitation, remorse, insight and the early plea of guilty. As the Crown acknowledges, the offending occurred over a period of about 50 minutes. There was no actual physical violence inflicted. All the property and money stolen was returned.

2. While Mr Hopper submits that Mr Howard was not taking the leading role, as I have indicated the instigation for the offence and the precise roles of the offender beyond what I have indicated from the agreed facts cannot be determined. It is clear, however, that as a result of some understanding between the two it was Mr Radanovic who was doing the speaking so that Mr Howard’s voice could not be identified. It is true that Mr Howard was some 15 years younger than his co-offender and the co-offender had some record of violence, albeit a long time ago. Mr Hopper points to those circumstances as weighing against his client being sentenced on exactly the same level.

3. In summary, he puts that it was an offence involving knives and a baton which was amateurish and not sophisticated. No physical violence inflicted on the victim, but the co-offender made a number of threats. The victim was a female, travelling by herself from work and was vulnerable. The Crown case was a strong one and it puts the robbery offence within the Henry guideline judgment (R v Henry (1999) 46 NSWLR 346), but in terms of moral culpability and the subjective case put it is appropriate to take into account the abuse and neglect he suffered at the hands of his father, and the sexual abuse that he suffered as a child when formulating a just sentence.

4. The Crown does not challenge the submission that the background requires some consideration in Bugmy (Bugmy v The Queen (2013) 249 CLR 571) terms given the profound nature and likely cause of the comorbid mental health impairments reduce his moral culpability to an extent.

5. The Crown does not challenge a finding of special circumstances being made given his youth, his profound mental health impairments, limited criminal history, the fact that it is his first time in custody, the custody is being served during the COVID pandemic and the need for intensive supervision on release.

6. As Ms Mayne acknowledged, the offending had hallmarks of planning in that both offenders were seen at the victim’s workplace. They acted together to intercept her. Radanovic provided a piece of paper to her and both offenders were equipped with weapons.

7. I accept the submission, put jointly, that the offending, while serious, is below the mid-range, or as Mr Hopper put it, at the lower end of the mid-range, bearing in mind the factors to which I have referred.

8. I accept, when considering questions and totality and concurrency and accumulation, that there should be a modest degree of accumulation given that the one course of criminal conduct encompasses both offences.

9. Ultimately, I accept Ms Mayne’s submission that balancing up all the factors the role of her client was no greater than that of Howard and truly it was a joint criminal enterprise in which they both bore equal responsibility.

10. Ms Mayne addressed the subjective case, which I have outlined, noting that the drug use was a consequence of a deterioration in his stability development and behaviour following an incident of sexual abuse at age 13. His family background being marked by arguments between his parents and the loss of any relationship with his father.

11. She notes his drug taking immediately prior to the offences and his long-standing drug use.

12. I take account, of course, of the early plea of guilty and his willingness to engage in courses and his prospects of rehabilitation being realistic, having regard to an absence of prior similar offending and his acknowledgement of a need to undertake programs to address drug addiction. As with Mr Howard, a finding of special circumstances should be made on the basis of a need for extensive supervision and rehabilitation, the custodial conditions during the COVID pandemic and the need for intensive rehabilitation.

13. As the Crown puts, and it is not contested, this was a very serious or grave episode of offending, in broad daylight, which undoubtedly had a terrifying effect on the victim and even in the absence of the Victim’s Impact Statement both offenders acknowledge what is obvious, namely, that it was likely to have significant long term effects upon her.

14. The range of sentences and the factors set out in the guideline judgment in Henry for the armed robbery case they are, of course, taken into account.

15. Ultimately the aggregate sentence that I will impose is slightly higher for Mr Howard than Mr Radanovic as a result of the different discounts which apply in the indicative sentences, but the non-parole period for both will be the same. That ,may at first glance seem an odd result given the different discount to which I have referred, but balancing the factors in favour of Mr Howard’s subjective case, with that of Mr Radanovic in relation to matters such as his age and the slightly more serious record of Mr Radanovic warrants such an order.

16. So the orders that I make are, in relation to Mr Radanovic,

1. The offender is convicted of the offences.

2. Taking into account the account 25% discount for the pleas of guilty and a 5% discount for past assistance, the indicative sentences are:

1. Sequence 1: two years and six months;

2. Sequence 2: three years

3. I impose an aggregate sentence of three years and five months, commencing 27 January 2021 and a non-parole period of two years, expiring 26 January 2023.

4. I find special circumstances.

64. In relation to Mr Howard:

1. The offender is convicted of the offences

2. Taking into account a 25% discount for the pleas of guilty, the indicative sentences are:

1. Sequence 1: two years and eight months;

2. Sequence 2: three years and two months.

3. I impose an aggregate sentence of three years and six months, commencing 28 January 2021.

4. I impose a non-parole period of two years, expiring 27 January 2023.

5. I find special circumstances.

Note - These extempore remarks were revised without access to the court file.

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Decision last updated: 28 February 2022