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District Court 11 February 2022

R v Maricic; R v Derbas

[2022] NSWDC 16

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING JOINT CRIMINAL ENTERPRISE SENTENCING OF CO OFFENDERS AGGRAVATED KIDNAPPING OFFENCE

Citation: R v Maricic; R v Derbas [2022] NSWDC 16
Court: District Court of New South Wales
Date: 11 February 2022
Judge: Abadee DCJ

Background

Two co-offenders, referred to here as Maricic and Derbas, appeared before the District Court for sentencing after each pleaded guilty to an aggravated detention offence (kidnapping) arising from events on 2 November 2020. The offence involved luring a victim to a residence in Enmore, assaulting him, binding his hands with cable ties, and holding him captive while demanding money and property. Maricic additionally pleaded guilty to an aggravated entry offence, having led a group to the victim's Lewisham home during the detention to steal cash, watches, jewellery, and other valuables. Derbas had the entry offence taken into account on a Form 1.

The offending was premeditated and calculated. Maricic had befriended the victim at a barber shop days earlier, used Instagram contact to arrange a meeting, and orchestrated the entire scheme. Derbas arrived at the premises with a blowtorch before the victim appeared, and actively participated in the assault and robbery. A third participant (an unidentified male) remained at the Enmore premises guarding the victim at knifepoint while Maricic and Derbas ransacked the Lewisham unit.

The victim and his partner suffered financial loss and the victim was subjected to sustained physical violence, threats, and intimidation throughout the ordeal.

  • How should the court assess and differentiate the relative culpability of each co-offender in a joint criminal enterprise?
  • What discount applied to each offender's sentence in light of their guilty pleas?
  • Was an Intensive Correction Order (ICO) a sentencing option available and appropriate for Maricic, given the gravity of the offences?
  • Did special circumstances exist to justify a variation to the standard ratio between non-parole period and total sentence for Derbas?
  • What commencement date should apply to Derbas's sentence, given time already served on remand?
  • How should the parity principle apply when two co-offenders receive sentences of different form (one potentially by ICO, one by full-time custody)?

Decision

Culpability and parity. Abadee DCJ found that Maricic bore the greater degree of culpability. He was the architect of the scheme, having engineered the social contact with the victim to facilitate the robbery. He organised the participants, issued instructions during the offending, and participated in both the detention and the entry. Derbas's role, while serious and active, was assessed as somewhat less culpable than Maricic's. The court applied the parity principle carefully, noting that co-offenders sentenced differently must not perceive the disparity as unjust, and that differences in form of sentence (such as ICO versus full-time custody) could be accommodated where justified by the individual circumstances of each offender.

Maricic's sentence. Having regard to the objective seriousness of the offences, Maricic's greater culpability, and applicable discounts for his guilty plea, the court imposed an aggregate sentence of imprisonment of 2 years, 4 months, and 4 days. However, the court considered that an ICO might be an available and appropriate vehicle for that sentence, having regard to Maricic's personal circumstances and prospects of rehabilitation. Because a sentencing assessment report had not yet been obtained, the court adjourned that aspect of the proceedings. The aggregate term was fixed to allow for the possibility that an ICO would ultimately be ordered, with a resumed hearing to follow receipt of the report.

Derbas's sentence. The court accepted that special circumstances existed in Derbas's case, having regard to his recent history and the evidence of a psychologist who identified a need for close intervention to support rehabilitation. This justified a reduction in the proportion of the sentence to be served as a non-parole period. The court backdated the sentence to 14 December 2020 to account for the time Derbas had spent on remand while also serving a sentence for breach of parole. Taking into account the guilty plea discount, the Form 1 offence, and parity with Maricic, the court fixed a total term of 2 years and 6 months, with a non-parole period of 1 year and 6 months.

Orders Made

Maricic:
- Convicted of the aggravated detention offence and the aggravated entry offence
- Aggregate sentence of imprisonment of 2 years, 4 months, and 4 days, commencing on 11 February 2022 and expiring on 14 June 2024
- Sentencing proceedings adjourned to a date to be fixed for a sentencing assessment report to be obtained, with the question of whether an ICO would be appropriate to be determined at the resumed hearing

Derbas:
- Convicted of the aggravated detention offence (with the aggravated entry offence taken into account on a Form 1)
- Sentence of imprisonment of 2 years and 6 months, backdated to commence on 14 December 2020 and expiring on 13 June 2023
- Non-parole period of 1 year and 6 months, expiring on 13 June 2022

Key Takeaways

  • In joint criminal enterprise sentencing, courts will examine each participant's role with precision. Even where offenders are charged with identical offences, the organiser or instigator of the scheme may be assessed as materially more culpable than others who actively participated.
  • The parity principle does not require identical sentences for co-offenders. Differences in individual circumstances, including prospects of rehabilitation, criminal history, and personal background, can justify both different lengths and different forms of sentence.
  • An ICO is not automatically foreclosed for a serious offence carrying a 20-year maximum. The court's reasoning indicates that eligibility turns on the specific term imposed and the individual's circumstances, subject to a sentencing assessment report and further submissions.
  • Where an offender is on remand and simultaneously serving a sentence for another matter, the court retains discretion to backdate the commencement of the new sentence to reflect that period, provided the Crown does not oppose and the approach is otherwise appropriate.
  • Finding special circumstances to adjust the non-parole period ratio requires more than bare assertion. Here, the court accepted the psychologist's evidence about the offender's rehabilitative needs as sufficient foundation, combined with the Crown's non-opposition.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 86 (aggravated detention/kidnapping), 111 (aggravated entry), 316
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 17D, 21A, 66, 68

Cases:
- Bajouri v R [2009] NSWCCA 125
- Barlow v The Queen (2008) 184 A Crim R 187
- KR v R [2012] NSWCCA 32
- Lai v R [2021] NSWCCA 217
- Mandranis v The Queen (2021) 289 A Crim R 260
- Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294
- R v Anforth [2003] NSWCCA 222
- R v Flentjar [2008] NSWSC 771
- R v Newell [2004] NSWCCA 183
- R v Pullen (2018) 275 A Crim R 509
- R v Speechley (2012) A Crim R 175
- R v VL [2005] NSWCCA 301
- Redfern v R [2012] NSWCCA 178