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District Court 5 June 2020

R v Milojevic

[2020] NSWDC 441

Assault & violenceTheft & property
CRIME PROPERTY OFFENCES VIOLENT OFFENCES RECKLESS WOUNDING SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES

Citation: R v Milojevic [2020] NSWDC 441
Court: District Court of NSW
Date: 5 June 2020
Judge: Bright DCJ

Background

The offender, a 23-year-old man, appeared for sentence on two principal offences arising from a violent home invasion at Blue Haven on 8 December 2017. He and a co-accused, along with several others, forced entry into the home of a 28-year resident of the property, knowing occupants were inside. The group threatened the occupants, assaulted both the householder and his adult son, and stole cash and a personal bag.

The householder was punched, dragged through the home, and struck across the back of the head with a metal wrench, causing a laceration requiring three stitches. His son was repeatedly kicked and punched and struck with pot plants. The offender was identified through DNA evidence recovered from the scene.

The offender pleaded guilty on 14 November 2019 to aggravated break and enter and commit a serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW), and reckless wounding in company under s 35(3). A further offence of assault occasioning actual bodily harm in company (against the son) was taken into account on a Form 1. The offender had been in continuous custody since 1 January 2018 and was already serving a separate aggregate sentence.

  • What was the appropriate objective seriousness of each offence?
  • What aggravating and mitigating factors applied to the sentence?
  • What discount was warranted for the guilty plea, given its timing?
  • How should the new sentence be structured in light of the offender's existing custodial sentence, applying the principles of accumulation, concurrency, and totality?

Decision

Bright DCJ assessed both the aggravated break and enter and the reckless wounding offences as falling within the middle of the range for objective seriousness. Although the physical injury to the householder was at the lower end for the wounding charge, the circumstances in which the injury was inflicted, including the use of a weapon during a group home invasion, justified a mid-range assessment overall.

The court accepted three statutory aggravating factors: the offending occurred in the victim's home, it was unprovoked, and it was committed while the offender was on parole for a prior offence of assault with intent to rob armed with an offensive weapon. The use of a weapon was not separately counted as an aggravating factor because it had already been taken into account in assessing objective seriousness.

A 15% discount for the guilty plea was applied. Although the plea avoided a trial, it was not entered at the earliest opportunity, having been preceded by arraignment and a separate trial application. The court acknowledged the offender's difficult personal history, including substance abuse, an unstable upbringing, and some evidence of rehabilitation steps taken in custody, but noted his extensive criminal record as a significant countervailing consideration.

The court imposed an aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with the new sentence structured to be partially cumulative on the existing sentence. The totality principle required adjustment of the non-parole period ratio to produce an overall sentence that was just and proportionate across all offending.

Orders Made

  • The offender was convicted of aggravated break and enter and commit serious indictable offence (larceny), and reckless wounding in company.
  • An aggregate sentence of five years and three months was imposed, with a non-parole period of two years and eight months.
  • The non-parole period commences 1 August 2021 and expires 31 March 2024.
  • The balance of term expires 30 October 2026.
  • The earliest eligible parole date is 31 March 2024.

Key Takeaways

  • The District Court assessed both a home invasion break and enter and a reckless wounding in company as mid-range in objective seriousness, even where the resulting physical injury was relatively modest, because the surrounding circumstances elevated the gravity of the conduct.
  • A 15% guilty plea discount was applied where the plea, although ultimately avoiding trial, was not entered at the first available opportunity and came after arraignment and a separate trial application.
  • Where a weapon is used as part of the same conduct assessed in determining objective seriousness, the court will not double-count that weapon use as a separate statutory aggravating factor.
  • Under the totality principle, where a new sentence must run partially cumulatively on an existing term, the ratio between the non-parole period and the balance of term may require adjustment to ensure the overall sentencing outcome remains proportionate.
  • An aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to state the indicative sentence that would have been imposed for each offence separately, including the applicable discount, before arriving at the combined term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(3), 59(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 53A, 54B(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41