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Court of Criminal Appeal 3 February 2005

R v NIKOLOVSKI

[2005] NSWCCA 60

Assault & violenceTheft & property

Citation: R v Nikolovski [2005] NSWCCA 60
Court: New South Wales Court of Criminal Appeal
Date: 3 February 2005
Judge(s): Hulme J; Studdert J

Background

The applicant was sentenced in the District Court in March 2004 for two offences committed on 31 August 2003: robbery while armed with a syringe and detaining the victim with the intention of obtaining an advantage. The offences involved a prolonged and terrifying ordeal in which the applicant threatened a 19-year-old student with a syringe, repeatedly threatened to kill her, forced her to cover her eyes, drove her away in her own vehicle, and ultimately left her on the roadside after taking her belongings. The victim subsequently developed post-traumatic stress disorder and suffered significant ongoing psychological and physical effects.

The applicant received a sentence of five years' imprisonment with a non-parole period of three years and nine months for the robbery, and a consecutive sentence of three years with a non-parole period of two years and three months for the detention offence. The effective total sentence was five years and three months, with an effective non-parole period of four years and six months, leaving a parole period of approximately six months.

The applicant sought leave to appeal that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to take into account the effect of accumulation when fixing the non-parole period, given that the parole period represented only approximately 14 per cent of the total effective sentence (well above the standard 25 per cent ratio)

Decision

The sole ground of appeal was that the sentencing judge must have overlooked the effect of accumulating the two sentences when structuring the non-parole period. The applicant relied on precedents in which courts had inferred such oversight where the resulting parole period was disproportionately short relative to the head sentence.

Hulme J acknowledged that the absence of express reasons for the high ratio of non-parole period to total sentence was "surprising." However, his Honour identified several factors that could well have led the sentencing judge to impose a lengthy non-parole period: the extreme seriousness of the offending, the severe and lasting impact on the victim, and the applicant's history of prior engagement in drug and alcohol programs without lasting benefit, which made it doubtful that a lengthy parole period would be of practical benefit.

Hulme J also noted that the sentencing judge's concluding remarks explicitly juxtaposed the parole release date with the sentence expiry date, which argued against the inference that the effect of accumulation had been overlooked. The circumstances were therefore distinguishable from earlier cases where that inference had been drawn.

Ultimately, Hulme J found it unnecessary to resolve the question of the judge's reasoning process. The offending was so serious that the requirements of general and personal deterrence and retribution independently justified the non-parole period imposed. No lesser sentence was warranted. Studdert J agreed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a high ratio of non-parole period to head sentence does not automatically establish an error in failing to account for accumulation; the inference of oversight depends on the full sentencing circumstances.
  • Where the seriousness of the offending and the requirements of deterrence and retribution independently justify a lengthy non-parole period, the absence of explicit reasoning for the ratio will not alone ground a successful appeal.
  • A sentencing judge's express reference to both the parole release date and the sentence expiry date in concluding remarks can support the inference that the structure of accumulated sentences was in fact considered.
  • Prior participation in rehabilitation programs without lasting benefit is a factor that may, on the facts, reduce the weight to be given to the utility of a longer parole supervision period.
  • The Court distinguished R v Reicher [2003] NSWCCA 300, where an inference of oversight had been drawn, noting that case rested on additional factors including the applicant's age and an extended period free of imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- R v Lindon [2003] NSWCCA 152
- R v Reicher [2003] NSWCCA 300