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District Court 18 May 2022

R v Clare; R v Ilievski

[2022] NSWDC 383

Assault & violenceTheft & property
CRIME RELEVANT FACTORS ON SENTENCE AFTER TRIAL ROLE OF OFFENDERS DETERMINED FACT FINDING LEVELS OF CULPABILITY

Citation: R v Clare; R v Ilievski [2022] NSWDC 383
Court: District Court of New South Wales
Date: 18 May 2022
Judge: Haesler SC DCJ

Background

In May 2020, two complainants were detained against their will, assaulted, and held while their families were pressured to transfer money. The offending arose from a drug deal gone wrong involving methylamphetamine. Both complainants and all accused were ice users, and the detention occurred at a residential property in Cringila in southern Wollongong.

Five accused were charged under s 86(3) of the Crimes Act 1900 with detaining a person in company with intent to obtain an advantage, with circumstances of aggravation (being in company) and special aggravation (causing actual bodily harm). After a ten-day jury trial in January 2022, the jury convicted all accused on two counts each, acquitting them on the specially aggravated version of the second count. A fifth accused, Lee Eager, had pleaded guilty earlier and was sentenced separately.

The sentencing proceedings for all five were staggered due to COVID-related absences, incomplete reports, and court availability issues. This judgment deals specifically with two of the convicted accused: Tara Clare and Ilo Ilievski.

  • What facts could the sentencing court find consistently with the jury's verdicts, given that none of the offenders gave sworn evidence?
  • How should roles and levels of culpability within a joint criminal enterprise be assessed where the evidence is limited?
  • What weight should be given to unsworn material tendered on behalf of offenders at the sentencing stage?
  • How do deprived backgrounds and consequent drug addiction bear on sentence?
  • What aggregate sentences, non-parole periods, and findings of special circumstances were appropriate for Clare and Ilievski?

Decision

Fact-finding after a contested trial

His Honour applied the well-established principle from Olbrich v The Queen (1999) that matters of aggravation must be proved beyond reasonable doubt, while matters of mitigation need only be established on the balance of probabilities. Because none of the offenders gave evidence, there was limited material before the court about personal interactions between co-accused, what occurred away from the complainants, or each person's precise role within the group. Where disputed facts favoured an offender, the court resolved them in that offender's favour.

His Honour accepted both complainants' accounts as a proper factual basis for sentencing, noting that differences between their versions were unsurprising given the traumatic circumstances. The jury had not treated those differences as significant enough to undermine the prosecution case, and the court took the same view.

Joint criminal enterprise and individual culpability

Each accused was found to have participated in a joint criminal enterprise. However, the court recognised that participation in such an enterprise does not necessarily mean equal culpability. Without sworn evidence from any offender about their individual role, the court did what it could within the bounds of the established evidence. His Honour emphasised that the criminal trial process remains accusatorial even during sentencing, meaning no offender could be required to prove a fact in their own favour.

Deprived backgrounds and drug addiction

The court took into account the deprived backgrounds of both offenders and their consequent drug addiction, consistent with the principles in Bugmy v The Queen (2013). These factors were relevant to mitigation, though they did not diminish the objective seriousness of the offending. His Honour stressed that detaining others to resolve drug disputes causes serious community harm and that one function of the criminal law is to discourage self-help remedies that escalate into violence.

Sentencing considerations

Both Clare and Ilievski received aggregate sentences of three years and six months imprisonment. The court made findings of special circumstances in each case, varying the standard ratio between the non-parole period and the balance of the sentence. Clare's shorter non-parole period of one year and nine months reflected a more substantial special circumstances finding, while Ilievski received a two-year non-parole period. Ilievski's sentence was structured to run partly concurrently with an earlier Local Court sentence.

Orders Made

Tara Clare

  • Convicted on Count 1 (detain first complainant with intent to obtain advantage, in company, with special aggravation): indicative sentence of 3 years imprisonment
  • Convicted on Alternate Count 2 (detain second complainant with intent to obtain advantage, in company): indicative sentence of 2 years imprisonment
  • Aggregate sentence: 3 years and 6 months imprisonment, commencing 14 May 2022
  • Non-parole period: 1 year and 9 months; eligible for parole consideration on 13 February 2024
  • Balance of term: 1 year and 9 months, commencing 14 February 2024 and expiring 13 November 2025
  • Substantial finding of special circumstances recorded

Ilo Ilievski

  • Convicted on Count 1: indicative sentence of 3 years imprisonment
  • Convicted on Alternate Count 2: indicative sentence of 2 years imprisonment
  • Aggregate sentence: 3 years and 6 months, commencing 12 August 2020 (partly concurrent with Local Court sentence)
  • Non-parole period: 2 years; eligible for parole consideration on 11 August 2022
  • Balance of term: 1 year and 6 months, commencing 11 August 2022 and expiring 11 February 2024
  • Release to parole subject to determination by the State Parole Authority on the basis of community safety

Note: The judgment text contains what appears to be a typographical error in Ilievski's expiry date (stated as "11 February 2022" rather than 2024). Readers should consult the original judgment and court records for the authoritative dates.

Key Takeaways

  • In sentencing after a contested trial, the District Court confirmed it must make its own findings of fact consistently with the jury's verdicts, applying Olbrich: aggravating facts require proof beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities.
  • Where none of the offenders gave evidence at sentencing, the court's capacity to differentiate individual roles within a joint criminal enterprise was constrained; disputed facts favouring an offender were resolved in that offender's favour.
  • Unsworn material tendered at sentencing carries limited weight. The accusatorial nature of criminal proceedings does not end at conviction, and offenders cannot be compelled to prove facts in their favour.
  • Deprived backgrounds and drug addiction, assessed under the principles in Bugmy v The Queen, are relevant mitigating factors but do not diminish the objective gravity of serious detention offences.
  • A finding of special circumstances permits the sentencing court to adjust the ratio between the non-parole period and the balance of the term, and both offenders here received that adjustment, with Clare receiving the more substantial departure from the standard ratio.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 86(2)(a), 86(3), 193C(2)
  • Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Evidence Act 1995 (NSW)

Cases