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District Court 14 April 2020

R v Mirceski

[2020] NSWDC 695

Assault & violenceTheft & property
CRIME SENTENCE AGGRAVATED ROBBERY BREACH OF CONDITIONAL LIBERTY OPPORTUNISTIC “VULNERABLE” VICTIM

Citation: R v Mirceski [2020] NSWDC 695
Court: District Court of New South Wales
Date: 14 April 2020
Judge: Norrish QC DCJ

Background

The offender pleaded guilty to aggravated robbery under s 95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence occurred on 30 March 2019 at Rockdale, when the offender followed a 58-year-old woman from a hotel, ran up behind her while she was on her mobile phone, and attempted to snatch her handbag. When she resisted, she fell and struck her head. The offender then grabbed her mobile phone and fled. The victim sustained a significant scalp haematoma, a laceration to her cheek, and an abrasion to her back.

At the time of the offence, the offender was subject to a suspended sentence bond imposed by Sutherland Local Court in June 2018 for possessing housebreaking implements. Committing the robbery breached the good behaviour condition of that bond, making revocation mandatory under the then-operative provisions of the Crimes (Sentencing Procedure) Act 1999.

The offender had a prior criminal history, a significant drug dependency, and had suffered serious head injuries in a motor vehicle accident in 2010. His counsel submitted that the head injury contributed to his subsequent drug abuse and offending. He had been in custody since his arrest on 5 April 2019.

  • Whether the victim was a "vulnerable" person within the meaning of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, constituting an aggravating factor
  • Whether the breach of conditional liberty was a significant aggravating factor
  • How the Henry guideline judgment on robbery-type offences applied in light of the subsequent enactment of s 21A
  • The weight to be given to the offender's drug dependency, prior head injuries, and personal circumstances in mitigation
  • Whether "special circumstances" existed under s 44 of the Act to justify a longer-than-usual parole period
  • How the principles of totality and partial accumulation applied to the two separate sentences

Decision

Norrish QC DCJ found that the victim was relevantly "vulnerable" under s 21A(2): she was alone, in a darkened area, attacked from behind without warning, and unable to anticipate or resist the assault. The use of actual force was reflected in the aggravated nature of the charge itself. The breach of conditional liberty was characterised as a substantial and significant aggravating factor.

The Court applied the guideline judgment in R v Henry but noted two important qualifications. First, Henry predated the enactment of s 21A, so the sentencing exercise required that provision to be applied alongside the guideline. Second, the guideline is precisely that: a guide rather than a fixed tramline. His Honour reaffirmed that sentencing remains an individual exercise and that justice in the particular case is paramount, citing the observation from R v Lattouf endorsed in Henry itself.

On mitigation, the Court accepted that the offender's 2010 motor vehicle accident had caused significant head injuries, and that there was a meaningful (though not complete) connection between those injuries and his subsequent drug dependency. His drug dependency had reduced his moral culpability to a degree, although it did not excuse the offending. The absence of convictions before his early twenties was noted as a positive indicator that the offender was not inherently antisocial or predisposed to violence.

Special circumstances were found under s 44, despite the offender's history of breaching conditional liberty and the absence of a Sentencing Assessment Report. The Court reasoned that the severity of the offender's head injury and its ongoing consequences meant he would require extended professional support, counselling, and assistance with drug treatment upon release on parole.

Orders Made

  • The s 12 suspended sentence bond of 26 June 2018 was revoked.
  • For the housebreaking implements offence: 15 months imprisonment, commencing 5 April 2019 and expiring 4 July 2020.
  • For the aggravated robbery: convicted and sentenced to a non-parole period of 18 months commencing 5 October 2019 and expiring 4 April 2021, with a balance of term of one year and nine months expiring 4 January 2023.
  • Total sentence: three years and nine months imprisonment, commencing 5 April 2019 and expiring 4 January 2023, with a total non-parole period of two years expiring 4 April 2021.

Key Takeaways

  • The Henry guideline on robbery-type offences remains relevant to aggravated robbery sentencing, but courts must now apply it alongside the aggravating and mitigating factors listed in s 21A of the Crimes (Sentencing Procedure) Act 1999, a statute that post-dated the guideline.
  • A victim attacked from behind, alone, at night, and without any warning satisfies the statutory concept of a "vulnerable" victim under s 21A(2), even where the offender did not specifically target the victim on account of any personal characteristic.
  • Breach of conditional liberty at the time of offending remains a substantial aggravating factor, and revocation of the bond flows automatically where the breach cannot be characterised as trivial.
  • A partial accumulation of sentences, rather than full concurrency or full accumulation, may be appropriate where separate criminality must be reflected but the totality principle requires the overall sentence to remain proportionate.
  • Special circumstances justifying a longer parole period can be established even in the absence of a formal Sentencing Assessment Report, where the evidence of acquired brain injury, drug dependency, and the need for post-release support is otherwise sufficiently before the court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A(1), 21A(2), 21A(3), 44, 98(3)

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Lattouf (Unrep, CCA NSW, 12 December 1996)
- Brown v R [2020] VSCA 60
- Callaghan v R [2002] NSWCCA 58
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Kearsley v R [2017] NSWCCA 28
- R v XX (2009) 195 A Crim R 38