Citation: R v Nikolovski [2018] NSWSC 1156
Court: Supreme Court of New South Wales
Date: 24 July 2018
Judge: Wilson J
Background
In the early hours of 7 March 2015, the offender, Jesse Nikolovski, participated in a home invasion at a residential property in Wickham, New South Wales, together with two co-offenders. The plan was to enter the home and steal cannabis. One co-offender, Daniel Petryk, had armed himself with a loaded .22 calibre rifle; a second co-offender, Phoebe Bronner, carried an axe. The offender was unaware the rifle was loaded, having been told it was not.
When the occupant, Robert Parry, confronted the intruders inside the house, Petryk shot him at close range. Parry died as a result. Petryk was subsequently convicted of murder. Bronner gave evidence at the offender's trial under an indemnity from prosecution.
The offender faced charges of murder and robbery whilst armed with a dangerous weapon. He was acquitted of murder at the direction of the trial judge at the close of the Crown case. Two days later, on 11 October 2017, he entered a plea of guilty to the armed robbery charge and appeared for sentencing.
Legal Issues
- What weight, if any, should be given to the offender's belief that the rifle was unloaded when assessing the objective seriousness of the robbery?
- How the court should treat adverse factual findings at sentence, consistent with the principle in The Queen v Olbrich that disputed facts adverse to the offender must be proved beyond reasonable doubt.
- Whether the offender bore any criminal liability for the wounding of the deceased, notwithstanding his acquittal of murder.
- What weight to give the late guilty plea, given it came after an acquittal direction on the murder count.
- How the principle of parity applied in relation to co-offenders, including Petryk (sentenced for murder) and Bronner.
- How the principle of totality applied, given the offender was already serving sentences for other armed robberies committed in Sydney.
Decision
Wilson J approached the factual findings at sentence with care, observing that any fact adverse to the offender had to be proved beyond reasonable doubt, in accordance with Olbrich. Her Honour accepted that the offender genuinely believed the rifle was unloaded, which was a relevant mitigating circumstance going to his moral culpability. The offender had not arranged for the weapon to be brought; he became aware of it only during the night of the offence and initially objected to its presence.
Notwithstanding that belief, the objective gravity of the offence remained serious. The offender knowingly participated in a home invasion in the middle of the night, in company, knowing at least one co-offender was armed with a firearm and another with an axe. He was aware of the plan to use those weapons to frighten any occupant who appeared. Parry's death was the direct result of that armed intrusion.
On parity, the offender's role was assessed as meaningfully different from Petryk's, who fired the shot and was convicted of murder, and also less culpable than Bronner in certain respects, though the precise distinctions were weighed in context. The court took into account that the offender was already serving sentences for other armed robberies and applied the totality principle to ensure the overall sentencing outcome was not crushing or disproportionate.
The plea of guilty, entered after the acquittal direction on the murder count, attracted a modest discount. The court also accepted evidence of some remorse, though it noted the offender appeared to partly attribute his involvement to the influence of his then-girlfriend and Petryk, indicating he had not fully accepted personal responsibility. Positive factors included the prospect of employment on release and strong family support, though prospects of rehabilitation were assessed as guarded.
Orders Made
- The offender was convicted of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW), committed on 7 March 2015 at Wickham, New South Wales.
- Sentenced to 6 years imprisonment, commencing 11 November 2017 and expiring 10 November 2023.
- Non-parole period of 3 years and 9 months, expiring 10 August 2021.
- Each charge on a s 166 certificate was dismissed.
- The Registrar was directed to provide a copy of the report from Dr Sathish Dayalan (4 July 2018) to the Officer in Charge of Justice Health.
Key Takeaways
- Under the principle in The Queen v Olbrich (1999) 199 CLR 270, a sentencing court cannot act on disputed facts adverse to the offender unless proved beyond reasonable doubt; this standard shaped the court's assessment of what the offender knew about the firearm.
- A genuine, accepted belief that a co-offender's weapon was unloaded is capable of reducing an offender's moral culpability for an armed robbery, even where the weapon is in fact discharged with fatal consequences.
- Participation in a home invasion at night, knowing co-offenders were armed with a firearm and an axe, and knowing the weapons were to be used to intimidate any occupant, remained objectively serious notwithstanding the acquittal on murder.
- The totality principle requires a sentencing court to step back and consider the cumulative effect of concurrent or consecutive sentences when an offender is already serving time for other offences of a similar character.
- A guilty plea entered after an acquittal direction on a related, more serious count attracts only limited weight as a mitigating factor, because the utilitarian value of the plea at that stage is diminished.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2) (robbery whilst armed with a dangerous weapon, maximum 25 years imprisonment)
Cases
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 (adverse facts at sentence must be proved beyond reasonable doubt)