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R v Robert Nikolovski

R v Robert Nikolovski

Case [2018] NSWSC 1147 25 July 2018

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Robert Nikolovski [2018] NSWSC 1147
Hearing dates: 20 July 2018
Decision date: 25 July 2018
Jurisdiction: Common Law
Before: Latham J
Decision:
The offender, Robert Nikolovski, is convicted of the offence of murder. He is sentenced to a non-parole period of 20 years, to date from 7 December 2017, expiring 6 December 2037, with a balance of term of 13 years, expiring 6 December 2050.

Catchwords: CRIMINAL LAW – sentencing – murder – organised and supplied gun used in shooting – victim shot in public street – vigilante response to brother’s death – murder planned – upper range of objective gravity – subjective circumstances – mental illness
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
Cases Cited: Aslan v R [2014] NSWCCA 114
Barlow v R [2008] NSWCCA 96
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324
R v Dole; R v Nguyen [2010] NSWCCA 101
R v Lulham [2016] NSWCCA 287
R v Rayment [2010] NSWCCA 85; 200 A Crim R 48,
Category: Sentence
Parties: The Queen
Robert Nikolovski
Representation:
Counsel:
Mr R Cooley (Crown)
Dr GD Woods QC (Offender)
Solicitors:
NSW Director of Public Prosecutions (Crown)
Katsoolis & Co (Offender)

File Number(s): 2014/274295
Publication restriction: Nil

sentence

The offender, Robert Nikolovski, was found guilty by a jury on 6 July 2018 of the murder of Darko Janceski on 14 April 2012. That offence carries a maximum penalty of life imprisonment and, in the event that a determinate sentence is imposed, a standard non-parole period of 20 years. The offender was found guilty on the basis that he encouraged and assisted Matthew Wiggins to carry out the murder, in that he supplied the gun that was used in the shooting.
Before passing to a consideration of the factors relevant to sentence, on behalf of the community, I acknowledge and appreciate the profound impact that this offence has had upon the parents of the deceased. Losing an only son in such violent circumstances, and bearing witness to his passing, is a tragic and horrifying experience which will always be with them.
The circumstances leading up to the offence are as follows. On 31 October 2011, the offender’s brother, Goran Nikolovski disappeared. Three days later, Goran Nikolovski’s burnt out car was found by police and from that time it has been presumed that Goran Nikolovski is dead. Despite a lengthy police investigation, no trace of Goran Nikolovski has been found and no-one has been charged with his murder. The offender and his associates, including Matthew Wiggins, became convinced however that Darko Janceski was responsible for Goran Nikolovski’s disappearance and death. That belief arose as early as 5 November 2011, when Mr Janceski’s house was destroyed by fire in circumstances that suggested it was deliberately lit.
That much is uncontroversial and was largely common ground at trial. The facts related…

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 Robert Nikolovski

Details

AGLC: R v Robert Nikolovski [2018] NSWSC 1147
Case: [2018] NSWSC 1147
Decision Date: 25 July 2018

CaseChat Overview and Summary

The case before the court involved Robert Nikolovski, who was charged with murder in relation to a fatal shooting that occurred on a public street. The victim was shot in what appeared to be a vigilante response to the death of Nikolovski's brother. Nikolovski had planned the murder, organised and supplied the gun used in the shooting. The High Court of Australia was tasked with determining the appropriate sentence for Nikolovski, considering the objective gravity of the offence as well as the subjective circumstances, including Nikolovski's mental illness.

The court was required to decide the appropriate sentencing approach for Nikolovski, considering the objective severity of the crime, which involved the premeditated and callous killing of an individual in a public place. Additionally, the court had to weigh the subjective factors, including Nikolovski's state of mind at the time of the offence, and his mental health history, in determining the appropriate penalty. The court also needed to consider the impact of Nikolovski's mental illness on his capacity to understand the nature and quality of his actions and to control his behaviour.

In delivering the judgment, the court acknowledged the objective gravity of Nikolovski's actions, recognising the severe consequences of his decision to organise and carry out a planned murder. However, the court also took into account the subjective factors, including Nikolovski's mental illness, which may have influenced his ability to fully comprehend the gravity of his actions and to control his behaviour. The court concluded that while the objective severity of the offence warranted a significant penalty, the subjective circumstances, including Nikolovski's mental health, warranted a degree of mitigation. The court ultimately determined that the appropriate sentence for Nikolovski was a term of imprisonment with a non-parole period, reflecting both the objective gravity of the offence and the subjective mitigating factors.

Orders