Citation: R v Jacimoski [2022] NSWDC 550
Court: District Court of New South Wales
Date: 11 November 2022
Judge(s): Wass SC DCJ
Background
The offender pleaded guilty to using an offensive weapon in company with intent to commit the indictable offence of intimidation. The offence occurred at the victim's home, where the offender entered with a co-offender, carrying a firearm that was not loaded or in working order. The offender attempted to load the weapon during the incident, and the victims, fearing for their safety and that of elderly family members present, physically confronted both offenders and eventually forced them from the premises. One victim sustained a head injury requiring stitches and medical glue.
The offender was 25 at the time of the offence. He had a limited criminal record consisting primarily of drug-related matters, with no prior violence. He spent 47 days in pre-sentence custody before being granted bail on conditions that included house arrest, daily reporting, and a strict curfew, which were maintained over a lengthy period.
The matter had a protracted history. The offender rejected an early Crown offer and did not plead guilty until 19 May 2022, resulting in a 10% discount for the utilitarian value of the late plea. Sentencing proceeded on 11 November 2022.
Legal Issues
- What was the appropriate head sentence for the offence, having regard to its objective seriousness and the offender's subjective circumstances?
- Whether a sentence of imprisonment should be served by way of an Intensive Correction Order (ICO) or full-time detention, with community safety as the paramount consideration under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- What weight should be given to the offender's rehabilitation, compliance with bail conditions, and ongoing community responsibilities when assessing risk of reoffending?
- Whether delay in resolving the proceedings could mitigate sentence.
Decision
Her Honour found that the objective seriousness of the offence was significant. The intimidation occurred inside the victims' home, involved a firearm (even though it was not operational or loaded), and resulted in physical injury to one victim, with elderly family members also present. However, the gun was not brandished, it was not loaded, and there was no direct evidence of widespread fear beyond one victim being "very shaken." These factors informed the overall assessment of objective gravity.
On the offender's subjective case, the court accepted that his offending was connected to a prolonged and serious drug dependency, which had begun in adolescence following failed knee surgeries and chronic pain. He had abstained from all drugs since mid-2020, shortly after his arrest. He had completed a MERIT program, engaged in psychological treatment, distanced himself from antisocial peers, enrolled in further education, cared for his elderly grandmother and ill mother, and maintained strict bail compliance over an extended period. The court accepted that his remorse was genuine and demonstrated by his conduct, not merely expressed in words.
Her Honour applied the two-step sentencing process for ICOs. She first determined that no penalty other than imprisonment was appropriate, and that the sentence fell within the two-year threshold for ICO eligibility. Applying s 66 of the Crimes (Sentencing Procedure) Act 1999 and the principles from Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337, her Honour found that community safety was best served by permitting the offender to continue his rehabilitation in the community under supervision. Full-time custody was not considered necessary to manage the risk of reoffending, given the demonstrated period of compliance and the progress of rehabilitation already underway.
On delay, her Honour accepted the Crown's submission that any anxiety caused by uncertainty about the outcome was self-inflicted, given the offender's early rejection of a resolution offer. The delay was ultimately characterised as working to the offender's benefit, as it allowed the court to observe a sustained period of rehabilitation before sentencing.
Orders Made
- The offender was convicted of using an offensive weapon in company with intent to commit the indictable offence of intimidation.
- A sentence of imprisonment of 16 months was imposed.
- Having regard to the 47 days already spent in pre-sentence custody, the sentence was ordered to be served by way of an Intensive Correction Order for a period of 15 months, commencing 11 November 2022 and expiring 10 February 2024.
Key Takeaways
- Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when a court decides whether to impose an ICO, and the court must assess whether an ICO or full-time detention is more likely to address the offender's risk of reoffending.
- The District Court confirmed, following Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337, that this assessment requires a genuine evaluative judgment, not a mechanical comparison, and must take into account all sentencing purposes under s 3A, not merely those favouring one outcome.
- Where rehabilitation is already demonstrably underway in the community, a sentencing court may find that supervised liberty better serves long-term community safety than a period of full-time custody.
- Sustained compliance with onerous bail conditions over a lengthy period can function as evidence of an offender's capacity to abide by court orders and as a de facto period of partial punishment, both relevant to the ICO assessment.
- Delay caused entirely by an offender's own decision to contest proceedings and reject early resolution offers carries no mitigating weight; the District Court held that any resulting delay was the offender's own responsibility.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66(1), 66(2), 66(3)
Cases
- Regina v Zamagias [2002] NSWCCA 17
- Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337