R v Todorovski

[2019] NSWDC 541

District Court

New South Wales

Medium Neutral Citation:	R v Todorovski [2019] NSWDC 541
Hearing dates:	15 August 2019
Decision date:	15 August 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Community Corrections order. For orders see [12]
Catchwords:	SENTENCE - Affray - low level - other violence- De Simoni applied - late guilty plea at special call-over.   SENTENCE - factors on sentence - impact of family and school problems - criminal record for drug offences not violence - young man at crossroad- judicial deference to a mother’s opinion- custodial sentence not required.
Cases Cited:	The Queen v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	Boban Todorovski (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr N Funnell (for the offender)   Solicitors: Maguire McInerney (for the offender) Ms J Dawson (for the Director of Public Prosecutions)
File Number(s):	2018/00018049

Judgment- ex tempore Revised

1. Boban Todorovski is facing a sentence today for a crime of affray: s 93C(1) Crimes Act New South Wales. The maximum penalty for that offence is ten years imprisonment. That maximum is one guide to the exercise in my sentencing discretion.

2. The incident leading up to the charge occurred on 9 June 2018 outside the Steeler’s Club, Wollongong. After 11pm three men left the club intending to walk to another establishment. They passed a car, a black Ford Fiesta, where Justin Bennis and some other men, including the present offender and a man called Diaz were standing. As the group, which included McAvoy, McIntyre and Russo, went past the car some comments were made by McAvoy to which the men near the car responded. McAvoy then threw some coins at the Ford. The coins hit the car and Todorovski, Bennis and Diaz approached the other three. Bennis and Diaz became involved in a physical altercation with McAvoy and McIntyre. Todorovski and Diaz confronted McIntyre and a fight ensued.

3. Bennis became enraged at McAvoy. Whatever happened between them it is not suggested this offender was responsible or criminally liable. The end result was that Bennis stabbed McAvoy. At about the same time the fight between the offender, Diaz and McIntyre broke up.

4. There is no indication in the facts before me that McIntyre suffered any injury. Police who were soon on the scene did however, note a number of injuries on Todorovski’s face. He was taken to Wollongong Hospital but I have no details about those injuries and it appears he only spent a short time at the hospital.

5. The facts as both counsel acknowledge are scant as to the details of the affray. In assessing objective seriousness of such matters a Judge is required to look at the level and scale of the affray. One reason for the heavy maximum penalty for an affray offence are the consequences caused to individuals and the community by serious disturbances of the public peace occasioned by such offences. Affrays can, and often do, escalate and people can be seriously hurt as occurred here; but I am not sentencing Todorovski for the escalation of the initial affray, I must focus on the matter for sentence: see The Queen v De Simoni (1981) 147 CLR 383.

6. Todorovski when charged said he was not guilty and the matter was listed for trial at the special call over. A plea of guilty was eventually entered to what on paper, at least, was a strong prosecution case. Whatever provocation was offered by the throwing of the coins could not and does not justify what then occurred; at best it explains why a group of young men engaged in fisticuffs in the street.

7. There will be a modest reduction in the otherwise appropriate sentence to take into account the plea as it did mean that another trial could be listed for the day originally fixed for Todorovski’s trial.

8. I have heard today from Todorovski’s mother; she indicates that as a child and young teenager he had a number of problems with school. He was obviously affected by the break-up of his parents’ marriage. His father was involved in crime and drug use. This has had an impact on him.

9. He has himself criminal antecedents but there are no matters of violence on his record. His record is reflective of what his mother deposes to be a problem with the use and abuse of illicit drugs. Drug use, particularly methyl amphetamine appears to have blighted his life for the last few years. He has made one unsuccessful attempt at dealing with that problem. He is being treated by a GP for anxiety and depression; those conditions can have a paralysing effect and people suffering such conditions often do not act in their best interests.

10. It is in Todorovski’s interests and the interests of the community that he; engage with his GP, engage in the Mental Health Plan and engage with one of the drug rehabilitation agencies in the local area. If he does not do so there is a risk of repetition of this offence or other offending and his record will deny him leniency. His mother says that he is at a crossroads in his life. Well, generally in such matters mothers are right. I will defer to her expertise but a significant amount of trust has been shown in Todorovski by his family and by the Court. If he breaches that trust by committing further offences and not engaging with programs recommended by Community Corrections there is a path for his life ahead that his father has opened for him. Alternatively, he is young enough and able enough to become a productive member of the community, the choice is his. I will give him that opportunity. If he breaches the trust shown him then the consequences are fairly dire.

11. I take into account all those matters. The purposes of sentencing here require consideration of the community interest in the rehabilitation of the offender. The objective circumstances of the offence, while serious, on the limited material available to me, would not require a custodial sentence. I will deal with the matter by imposing a Community Corrections Order.

Orders

12. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a community correction order. The term of the order is 12 months from 15 August 2019. The standard conditions of the order apply. The following additional conditions apply:

1. You will be subject to supervision by a Community Corrections Officer at Wollongong Community Corrections District Office for the period of the Community Correction Order.

2. You must report to the Community Corrections Office at Wollongong as soon as practicable but no later than 7 days from 15 August 2019, preferably tomorrow.

3. Obey all reasonable directions of Community Corrections particularly in relation to drug counselling and rehabilitation and engagement with medical professionals regarding the implementation of Mental Health plan.

13. You will have to sign that Community Corrections Order or bond in the court office before you leave Mr Todorovski. If you breach that bond you will come before me for sentence. You do not want to come before me for sentence. Do you understand?

OFFENDER: Yes.

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Decision last updated: 04 October 2019