Citation: R v Kostovski & Nikolovski [2010] NSWDC 296
Court: District Court of New South Wales
Date: 10 December 2010
Judge(s): Berman SC DCJ
Background
Two offenders, Kostovski and Nikolovski, appeared for sentencing after pleading guilty to multiple offences of break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act. In each case, the serious indictable offence was stealing, and the circumstance of aggravation was that the offenders acted in company.
The offenders were part of an organised operation targeting retail premises. The retail value of goods connected to Kostovski's offending exceeded $600,000, while Nikolovski's exceeded $250,000. Police arrested both men on 28 March 2010 after observing them in the act of loading stolen power tools into a vehicle from a premises adjacent to a retail store.
Kostovski faced six counts on the indictment plus nineteen similar matters on a Form 1. Nikolovski faced four counts plus seven Form 1 matters. A legal issue arose during the proceedings about how the objective gravity of offences under s 112(2) should be assessed, given the standard non-parole period of five years applicable to that provision.
Legal Issues
- How should a sentencing court assess the objective gravity of an offence under s 112(2) of the Crimes Act, where the serious indictable offence committed was stealing (a relatively less serious qualifying offence) and the only circumstance of aggravation was that the offenders acted in company?
- Does the range of objective seriousness for s 112(2) offences extend beyond offences of break, enter and steal in company, or is the comparison confined to that narrower category?
- What sentences were appropriate for each offender, taking into account the volume and value of offending, the Form 1 matters, and any assistance provided to authorities?
Decision
The court addressed a contested point of law before proceeding to sentence. The Crown had argued for a narrower approach to objective gravity, apparently comparing only like-for-like offences. Berman SC DCJ rejected this, holding that the correct range for assessing objective gravity under s 112(2) runs from the most serious possible conduct captured by the provision (such as break and enter followed by sexual assault, with multiple and serious circumstances of aggravation) down to the least serious (such as break and enter with a low-level serious indictable offence and a single, less serious aggravating circumstance).
The court confirmed this approach was consistent with the Court of Criminal Appeal's decision in R v Huynh and the High Court's reasoning in Ibbs v R. The court emphasised that the nature of the serious indictable offence committed (here, stealing) and the nature of the aggravation (in company, rather than a more serious form) do not automatically place an offence below the midpoint of the range. Other factors, including the quantity and value of property stolen, damage caused on entry, and repeated offending, may lift a particular offence to the midpoint or above.
Applying this framework, the court assessed both offenders' conduct and took into account their assistance to authorities and other subjective factors, alongside the scale and organisation of the offending. The sentences imposed reflected the serious and repeated nature of the crimes while also accounting for mitigating circumstances.
Orders Made
Kostovski:
- Count 1: Non-parole period of 1.5 years, head sentence of 3 years, commencing 28 March 2010
- Count 2: Non-parole period of 1.5 years, head sentence of 3 years, commencing 28 September 2010
- Count 3: Non-parole period of 1.5 years, head sentence of 3 years, commencing 28 March 2011
- Count 4: Non-parole period of 1.5 years, head sentence of 3 years, commencing 28 September 2011
- Count 6: Non-parole period of 1.5 years, head sentence of 3 years, commencing 28 March 2012
- Count 5: Non-parole period of 2 years, head sentence of 4.5 years, commencing 28 March 2012
- Effective overall sentence: non-parole period of 4 years, total term of 6.5 years; eligible for parole 27 March 2014
Nikolovski:
- Count 1: Non-parole period of 1 year 3 months, head sentence of 2.5 years, commencing 28 March 2010
- Count 2: Non-parole period of 1 year 3 months, head sentence of 2.5 years, commencing 28 September 2010
- Count 3: Non-parole period of 1 year 3 months, head sentence of 2.5 years, commencing 28 March 2011
- Count 4: Non-parole period of 1 year, head sentence of 3.5 years, commencing 28 September 2011
- Effective overall sentence: non-parole period of 2.5 years, total term of 5 years; eligible for parole 27 September 2012
Key Takeaways
- The District Court held that the range of objective seriousness for s 112(2) offences is not confined to break, enter and steal in company offences; it spans the full spectrum of conduct the provision captures, from the least to the most serious.
- A finding that the serious indictable offence committed was stealing, and that the only aggravating circumstance was acting in company, does not automatically place the offence below the midpoint of the s 112(2) range. Other features of the offending, such as the value of property stolen and repeated entries, remain relevant to the gravity assessment.
- The Court of Criminal Appeal in R v Huynh confirmed that a larceny-based offence under s 112(2) can fall at or above the midpoint of the range, depending on the particular facts.
- Consistent with the High Court's reasoning in Ibbs v R, not all conduct covered by a single offence-creating provision carries the same objective gravity.
- Organised, repeated retail break-and-enter operations involving substantial property values attracted cumulative custodial sentences, even where assistance to authorities and other mitigating factors were present.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 112(2) (break and enter and commit serious indictable offence)
- Crimes Act (NSW), s 105A (circumstances of aggravation)
Cases:
- R v Huynh [2005] NSWCCA 220
- Ibbs v R [1987] HCA 46; (1987) 163 CLR 447