Citation: R v Robert Nikolovski [2018] NSWSC 1147
Court: Supreme Court of New South Wales
Date: 25 July 2018
Judge: Latham J
Background
The offender was convicted by jury of the murder of a man shot dead in a suburban street in April 2012. The offender did not pull the trigger himself. Instead, he was found guilty on the basis that he encouraged and assisted the shooter, Matthew Wiggins, by sourcing and supplying the firearm used in the killing.
The killing arose from a vigilante response to the presumed murder of the offender's brother, who had disappeared in October 2011. The offender and his associates became convinced that the victim was responsible for the brother's disappearance. Over the following months, the offender obtained an untraceable, unlicensed firearm imported from the United States, helped plan the timing and method of the attack, and arranged an alibi for himself on the day.
The shooting occurred in the front yard of the victim's parents' home, in a public street, in the late afternoon. The shooter discharged the weapon seven times, striking the victim fatally. The victim's father wrestled the gun from the shooter before he could escape. At sentencing, the court also had before it evidence of the offender's mental health history, his bail conditions, and time already spent in custody.
Legal Issues
- What was the appropriate objective gravity of the offence, given the offender's role as an organiser and supplier rather than the direct shooter?
- Whether the offender's motive (avenging his brother's death) reduced the objective seriousness of the murder.
- Whether the offender's mental illness (a depressive illness that predated and continued through the offence) reduced his moral culpability.
- Whether the onerous bail conditions endured over nearly four years warranted a sentencing adjustment.
- What sentence, including non-parole period, appropriately reflected the applicable sentencing principles?
Decision
Latham J placed the offence in the upper range of objective gravity for murder. Although the offender was not the shooter, the court found he was deeply involved in the planning and execution of the killing: he sourced an untraceable firearm, allayed the victim's concerns to prevent him taking precautions, and ensured he had an alibi. The offender's own admission to a prison informer that he had "organised the whole thing" was accepted by the jury and by the court.
The court rejected the submission that the offence was a crime of passion rather than a calculated killing. While the offender was genuinely grief-stricken over his brother's disappearance, the conduct spanning five months, the steps taken to avoid detection, and the cold operational planning were inconsistent with impulsive or irrational action. The court acknowledged a distinction from a contract killing for financial gain, but held that the vigilante motive did not reduce the objective gravity of the offence. General deterrence and the rule of law demanded condign punishment for killings of this kind.
On mental illness, the court accepted that the offender suffered from a depressive illness that was exacerbated by his brother's death, and that this impaired his judgment to some extent. However, the careful and deliberate nature of the offending placed limits on the weight that mental illness could carry as a mitigating factor. The court accepted that specific deterrence warranted less emphasis in light of the motive, but general deterrence remained a substantial consideration.
The court accepted a modest downward adjustment to the non-parole period to account for unduly onerous bail conditions over approximately two years, during which police attended the offender's home over 230 times. The offender also had 241 days of pre-sentence custody to be credited. A non-parole period equal to the standard non-parole period of 20 years was ultimately imposed, with a total sentence of 33 years.
Orders Made
- The offender was convicted of murder.
- Non-parole period of 20 years, commencing 7 December 2017, expiring 6 December 2037.
- Balance of term of 13 years, expiring 6 December 2050 (total sentence of 33 years).
- The offender was notified of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW).
Key Takeaways
- A vigilante motive for murder, however emotionally understandable, does not reduce the objective gravity of the offence; general deterrence and the rule of law demand serious punishment for planned revenge killings.
- Participation in murder through planning and supplying a weapon, without directly pulling the trigger, can still attract the upper range of objective gravity where the evidence establishes the offender organised and controlled the commission of the offence.
- Mental illness may reduce the emphasis on specific deterrence and bear on moral culpability, but its mitigating weight is constrained where the offending was deliberate, planned, and executed over an extended period.
- Onerous bail conditions falling short of formal custody can nonetheless warrant a modest downward adjustment to the non-parole period where the conditions were found to have been unusually burdensome.
- Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period of 20 years for murder serves as a guidepost; the Supreme Court here imposed precisely that period, reflecting the serious objective circumstances offset against relevant subjective factors.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- 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