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Court of Criminal Appeal 18 December 2014

Ilievski v R

[2014] NSWCCA 321

Theft & property
CRIMINAL LAW SENTENCE APPEAL PARITY

Citation: Ilievski v R [2014] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 18 December 2014
Judges: Hoeben CJ at CL, McCallum J, Garling J

Background

The applicant was convicted following a jury trial of nine counts on an indictment relating to a series of commercial break-and-enter offences, and subsequently pleaded guilty to five further counts on a second indictment. Six additional offences were taken into account on a Form 1. The offences involved the applicant and three co-offenders breaking into commercial premises at night between July 2009 and March 2010, using drills to bore through doors and stealing cigarettes, electronics, and other goods. The offenders wore disguises and covered their hands to avoid leaving forensic evidence.

Two co-offenders, Kostovski and Nikolovski, were arrested separately, cooperated with police, and gave evidence against the applicant. They were sentenced before the applicant's trial and received a combined 50 per cent discount on their sentences, reflecting their early pleas and substantial assistance to authorities.

At first instance, Finnane DCJ in the District Court imposed an aggregate sentence of 16 years' imprisonment with a non-parole period of 10 years, finding the applicant to be the mastermind and principal offender. The applicant sought leave to appeal on four grounds.

  • Whether the aggregate sentence of 16 years was manifestly excessive
  • Whether the sentencing judge failed to give proper consideration to the applicant's intellectual disability when imposing sentence
  • Whether the sentencing judge erred in characterising the applicant as the mastermind of the offences and sentencing him accordingly as the principal offender
  • Whether the sentencing judge failed to properly apply parity principles when comparing the applicant's sentence with those imposed on his co-offenders

Decision

The Court of Criminal Appeal allowed the appeal, with McCallum J delivering the principal judgment (Hoeben CJ at CL and Garling J agreeing).

On the intellectual disability ground, the Court found that the sentencing judge had not adequately engaged with expert evidence from a neuropsychologist and a psychiatrist. The applicant had significantly impaired verbal and language skills, described as clinically abnormal, and was assessed as having a mild intellectual disability. The expert evidence indicated this disability reduced his moral culpability and made him vulnerable to influence by others. The sentencing judge's treatment of this evidence was insufficient, constituting an error in the exercise of the sentencing discretion.

On the mastermind ground, the Court was not satisfied the evidence firmly established the applicant as the organiser or leader of the group. The co-offenders, who gave evidence against him, had an obvious incentive to minimise their own roles. Even accepting some organising role, the Court found the judge had placed disproportionate weight on that characterisation.

On parity, the Court found the applicant had a legitimate grievance when his sentence was compared with Kostovski's. Kostovski had committed more offences and stolen approximately $200,000 more in goods. Even allowing generously for the substantial 50 per cent discount Kostovski received, there was no principled basis for the sentence imposed on the applicant to exceed what the stern starting point for Kostovski would otherwise have justified. The Court also noted that a further report from Dr Nielssen showed the applicant's physical health had deteriorated significantly in custody due to poorly managed diabetes, which had in turn worsened his depression.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed at first instance quashed and substituted with an aggregate term of imprisonment comprising a non-parole period of 6 years commencing 12 April 2012 and expiring 11 April 2018, and a balance of term of 4 years expiring 11 April 2022
  • The applicant became eligible for parole on 11 April 2018

Key Takeaways

  • A sentencing court must meaningfully engage with expert evidence of intellectual disability; failure to do so can constitute an error in the exercise of the sentencing discretion, even where the disability does not negate culpability entirely.
  • Where co-offenders testify against an accused, their evidence about relative roles must be assessed with caution given their obvious interest in diminishing their own culpability.
  • Parity principles require that a co-offender sentenced later should not receive a sentence significantly more severe than that of another co-offender whose overall criminality was greater, even after accounting for discounts the latter received for assistance and early pleas.
  • Deterioration of an offender's physical and mental health in custody, supported by fresh medical evidence, is a relevant consideration on resentence and may warrant a departure from the standard non-parole period ratio.
  • The Court of Criminal Appeal accepted the indicative sentences stated by the sentencing judge as individually appropriate but found the aggregate sentence, at 16 years, was the product of sentencing error and reduced it to 10 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 113(2), 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)

Cases: No specific cases were cited in the portions of the judgment provided.