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District Court 22 September 2023

R v Kominkovski

[2023] NSWDC 511

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Kominkovski [2023] NSWDC 511
Court: District Court of New South Wales
Date: 22 September 2023
Judge: Haesler SC DCJ

Background

In the early hours of 10 February 2021, four men entered a home in southern Wollongong in a coordinated robbery lasting less than two minutes. One offender was armed with a firearm and pointed it at both victims; another was armed with a machete; a third physically assaulted the female victim by stomping and kicking her; and a fourth appeared to act as a lookout, timing the operation. Opals valued at approximately half a million dollars were taken, with only a small portion recovered after an extensive police investigation.

The accused, David Kominkovski, pleaded guilty to specially aggravated breaking into and committing a serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW). Police intercepted communications during the investigation that connected him to the group, though the precise role he played within the property could not be definitively established on the agreed facts.

The Crown did not assert that Kominkovski was armed or that he was the person who assaulted the female victim. His counsel submitted he was likely the man stationed at the bedroom door rather than the opal collector. Following his arrest, Kominkovski spent 25 days on remand before being granted bail to attend the residential rehabilitation program at Odyssey House, where he remained at the time of sentencing.

  • What was the appropriate discount for Kominkovski's guilty plea, entered at the Local Court stage?
  • How should the court treat the period spent in quasi-custody at Odyssey House residential rehabilitation as a sentencing factor?
  • What was Kominkovski's objective role and culpability, given that the precise roles of each offender could not be resolved from the agreed facts?
  • How should the court balance the Henry guideline judgment for robbery, the standard non-parole period, significant subjective mitigating factors, and the principle of totality?
  • Was a finding of special circumstances warranted, justifying a departure from the standard ratio between non-parole period and total sentence?

Decision

Objective seriousness and the Henry guideline

Haesler SC DCJ found the offending fell well above the guideline range set out in R v Henry [1999] NSWCCA 111. Multiple aggravating features were present: a planned and professional operation, multiple weapons (firearm and machete), actual physical violence to the female victim, the temporary isolation of the male victim, and the very high value of the property taken. Although "in company" is an element of the offence, the court noted that the force of numbers remained a relevant aggravating consideration.

Role and fact-finding

The court acknowledged it could not resolve with certainty which offender performed which role inside the property. Consistent with Olbrich v The Queen (1999) 199 CLR 270, sentencing proceeded on what was known or agreed. The Crown's concession that Kominkovski was neither armed nor the person who used violence was accepted. His assertion through a psychologist that he received no proceeds could not be verified and was not accepted as a mitigating matter; the court found powerful motives for him to have expected a reward, given financial pressure and drug dependence.

Quasi-custody and rehabilitation

The 25 days spent on remand during COVID-19 isolation were credited under s 24A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The period spent at Odyssey House under quasi-custodial conditions was taken into account to reduce the sentence under R v Delaney [2003] NSWCCA 342. The court reduced the sentence by 50% of the Odyssey House time, reflecting its residential and disciplined character while acknowledging Kominkovski's diligence, engagement, and progress through each stage of the program. The court cautioned against excessive mathematical precision in applying this kind of reduction.

Instinctive synthesis and final sentence

Haesler SC DCJ applied a 25% reduction for the utilitarian value of the guilty plea and identified a starting point of 6 years and 6 months. After accounting for quasi-custody and applying the principles of instinctive synthesis described in DPP (Vic) v Dalgliesh [2017] HCA 41, the final sentence was 4 years and 10 months. A finding of special circumstances was made, resulting in equal non-parole and balance-of-term periods of 2 years and 5 months each. The court emphasised that mitigating factors can only go so far and that the sentence must reflect the gravity of the crime and serve as a general deterrent.

Orders Made

  • Formal conviction entered for specially aggravated breaking into and committing a serious indictable offence (s 112(3), Crimes Act 1900 (NSW)).
  • Sentence of 4 years and 10 months imprisonment, commencing 12 March 2023.
  • Non-parole period of 2 years and 5 months, with the offender eligible for parole consideration on 11 August 2025.
  • Balance of term of 2 years and 5 months, commencing 12 August 2025 and expiring 26 January 2028.
  • Sentence backdated by 194 days, incorporating 25 days on remand and 50% of time spent at Odyssey House.

Key Takeaways

  • Time spent in a residential rehabilitation facility under quasi-custodial conditions can reduce a sentence under the principle in R v Delaney, and the productive, disciplined nature of such a program may carry additional mitigating weight beyond simple credit for lost liberty.
  • The District Court explicitly cautioned against over-mathematising the application of sentencing factors, including the calculation of quasi-custody discounts, reaffirming that instinctive synthesis remains the required approach.
  • Where precise individual roles in a multi-offender crime cannot be determined from agreed facts, the court must sentence on what is actually known or agreed, and cannot speculate in favour of either the prosecution or the defence.
  • A starting point above the Henry guideline for robbery is warranted where multiple aggravating features coalesce, including planned execution, multiple weapons, actual violence, and high-value property.
  • Special circumstances were found to exist, justifying an equal split between the non-parole period and the balance of term, reflecting the offender's need for structured supervision during the transition from residential rehabilitation to community life.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24A, 42A
- Firearms Act 1996 (NSW)

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment for robbery)
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 (sentencing on agreed facts)
- DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41 (instinctive synthesis)
- R v Delaney [2003] NSWCCA 342 (quasi-custody in rehabilitation)
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 (parity)
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Kljac v R [2023] NSWCCA 225
- Bell v R [2019] NSWCCA 271
- Kelly v R [2018] NSWCCA 44
- Afu v R [2017] NSWCCA 246
- Lau v R [2010] NSWCCA 43
- R v Campbell [1999] NSWCCA 76
- R v Cartwright (1989) 17 NSWLR