Solicitors:
Legal Aid NSW (for the offender)
Ms T Lasschuit (for Director of Public Prosecutions)
File Number(s): 2019/00150831
[2]
Introduction
I have just dismissed Daniel Ilic's appeal against a sentence imposed by the Goulburn Local Court and confirmed the orders of the magistrate: see separate judgement. The dismissal of the appeal does not mean it must be put aside. The appeal proceedings are relevant to these sentence proceedings. They help inform a finding I have to make as to the appropriate date for commencing the present sentence, and how that sentence is structured. I have also had regard to - and admitted into these proceedings - the Sentence Assessment Report, which was before the Local Court: exhibit B.
The information from the Local Court appeal file, and that Sentence Assessment Report, confirms that, at the time of the commission of this offence, Ilic and his partner were itinerant. They were drug users. They were not in control of their lives, and they certainly were unable to properly care for their child. They were committing offences against the community. They were no longer part of the community. The offence for sentence today reflects a pattern of desperation, because the offence, from one perspective, was a desperate offence.
The inevitability of Ilic being caught by either the application of DNA technology or CCTV did not prevent this crime. The application of the principle of general deterrence, one of the matters that have to be taken into account with any sentencing exercise, did not prevent this crime. The wise words of the Chief Justice of New South Wales in R v Henry (1999) 46 NSWLR 346, and my sentencing remarks in other robbery sentences, which are widely reported in the local media, did not prevent this crime. It should be notorious that anyone who attempts to rob a vulnerable service provider, such as the victim of this offence, will inevitably go to gaol, and go to gaol for a long time.
That does not mean that courts should refrain from punishing offenders; to the contrary. Crimes of armed robbery, wherever they occur but particularly as here, where the victim is providing in a local service station and its otherwise vulnerable because of her age and her isolation, require just and appropriate punishment this includes applications of principles such as general deterrence and retribution.
Everyone in the community understands that if you use violence to obtain property from someone just going about their job, you will be punished, and you will be punished severely. It is also needs to be said, and said again, that crimes of armed robbery are not just offences against property to obtain property. They are offences against people. They are offences against the community. And, when people are robbed, not only the individual victim suffers, the community suffers.
While I do not have a Victim Impact Statement from the attendant, its absence does not mitigate the offence. To be threatened with a weapon can have a terrible impact on a victim. When such offences occur in places we all have to use, such as service stations, there can be more serious consequences. Businesses sometimes close. Workers feel vulnerable. The attendant here was aged 69. If you are working at 69, it is because you need or you want to. Matters such as this can cause them to give up working. Robberies cause communities to be fearful. And, if we can't trust others, our sense of community breaks down.
[3]
Agreed Facts
I turn now to the facts of what actually occurred on 20 February 2018. The attendant, who was then 69 years old, was working at a service station in Warilla. She started her shift in the early morning, and was due to finish at 7pm. At about 5.52 pm Ilic walked in. He was carrying a 47 centimetre timber stake. He approached her and demanded that she open the till. He said, "I don't want to hurt you." She replied, "I - no - I am not doing that." He continued to make demands of her. She then picked up her own stick, which she had next to the console.
She attempted to strike the offender with her stick but he managed to get it from her. He tried to open the till by press the computer keyboard. He was unsuccessful. He demanded cigarettes. She said, "You're not getting anything," but gave him her own cigarette packet at him. He said, "I don't want your cigarettes. Give me a packet." The two then argued for some time about cigarettes. While this was occurring, Ilic was standing beside her holding the two timber stakes. He hit at the computer screen, causing it to fall over.
Shortly afterwards, he jumped the counter and ran. The attendant called Triple-0. All Ilic took was the attendant's cigarettes and some chocolate bars. The attendant suffered no physical injury, but was obviously fearful that she would be struck.
Police attended the scene. Ultimately, a DNA match was made between the profile taken from exhibits found and Ilic's. CCTV footage was also used to identify him.
[4]
Commencement date
Ilic went into custody on 18 March 2019 for the Goulburn matters. He was arrested for this matter on 14 May 2019 while still in custody. He has been in custody for this matter since that time. The non parole period for the Goulburn matters, subject to the unsuccessful appeal, expires on 16 May 2020.
There is no discount for multiple offending, but a court, when sentencing when someone is already in custody, can and should take into account other sentences when formulating the appropriate sentence and the structure of that sentence. This principle, known as totality, sometimes requires a reduction in the overall sentence; we do not simply add one sentence on top of the other. The court must determine a total sentence appropriate to all the offender's crimes. I also recognise that the longer a person serves in custody, the harsher that sentence is on that person.
I will not back date this sentence to when Ilic was first arrested, but will start it on 14 November 2019.This allows for a custody period solely related to the Goulburn matter.
[5]
Submissions
I am indebted to both counsel, Mr Fraser, Public Defender, and Ms Lasschuit, solicitor, for the Director of Public Prosecution's, for their written submissions which carefully and fairly set out the matters of aggravation and mitigation that I must consider.
It is accepted that guidance should be taken by the Court from Henry (1999). There are some similarities with that guideline; there are some dissimilarities; it is a guideline, not a tramline: Legge v R [2007] NSWCCA 244. The guideline is there to assist sentencing judges, but it is not prescriptive.
I recognise that a very small amount was taken. I also recognise that Ilic has demonstrated some remorse, both practical in his plea of guilty, and personal in his letter, to which I have had regard, and through his psychologist, Ms Jellan.
Ultimately, the Crown submission is that general deterrence, despite my scepticism as to its utility, has considerable significance here. Further specific deterrence is important. The offender has to understand the consequences of his action, and it is clear at the time he did not.
Mr Fraser accepts all of those matters, and accepts the aggravating features, particularly the vulnerability of the complainant at the time. He notes however that, at the time of the commission of this offence, Ilic did not have a significant criminal record. He also stresses the importance of the evidence of remorse, both by the plea of guilty and otherwise.
[6]
The offender's background
Ms Jellan's report set out the offender's background. It is also referred to in the Sentence Assessment Report. Ms Jellan's report allows for some understanding of why Ilic took up using illicit substances. His mother died when he was a teenager. His life was disrupted when he was put into the care of his father, who took him overseas. He returned to Australia, and lived with his sisters. It is understandable that they were too young to raise and cope with a difficult teenager, who had his own traumas.
Ilic began to associate with others in the community who did not have respect for the law. And, not unusually, he began to use drugs as a "maladaptive coping mechanism" for the emotional toll of unmanaged and untreated grief. He has been able, however, to obtain work. He has a relatively good employment history. He has been able to maintain good relationships with his partners. But, again, not unusually, when things get difficult for him, his default position is the use and abuse of illicit drugs.
It seems his partner's life was similarly blighted by drug addiction. At the time of his offending they were trying to cope with looking after a child. But, they became homeless, drug dependant, and desperate.
The ultimate conclusion of this dire situation was he ended up in gaol. And his child is in the care of Department of Community Services. The child is presently living with one of his sisters.
Ilic still has his sisters' support. But my understanding, from the material before me, is that support is conditional. It is conditional on him doing everything while he is in custody to turn his life around and on his taking whatever help is offered to him. It is conditional upon him engaging in the sort of plan set in the Sentence Assessment Report when released to the community: engagement with rehabilitation programs, engagement with a GP and agreeing to another mental health plan.
[7]
Synthesis
It appears Ilic has used his time in custody to detox, engage in treatment programs and to reflect. To put it as bluntly as I can, he has hit rock bottom, and the only way he can go is up. But first he must serve the minimum term of custody that his crimes, and the other purposes of sentencing, demand.
I have to synthesise all relevant factors. There is reason here for moderation of the Henry guideline, given Ilic's background and his lack of criminal antecedents until this desperate series of crimes commenced. But at the same time, the maximum penalty, and the guidance offered by the Court of Criminal Appeal must be taken into account.
Not for the first time today, I have commented that it is tragic that people of the Illawarra, and those who commit crimes in the Illawarra, do not have access to any Drug Court programs. This case is classically a matter where the Compulsory Drug Treatment Program, or other Drug Court programs, could best be utilised to reduce the risk of recidivism, and restore Ilic to the community.
Ultimately, sentences must be about community protection. And while the community can be protected for a brief period while Ilic is removed from the community, he must be restored to it: hopefully in a better position than when he went into custody and hopefully better able to lead normal community life. There must still be a lengthy period of custody, but a significant finding of special circumstances can be made. That finding also reflects this sentence being partially cumulative with the Local Court matters.
I return to the harm that was done to the community and to the victim. Her dignity must be vindicated. A sentence that carries with it a degree of retribution is required. I do not mean retribution in some illogical sense. Rather it is accepted that some sentences require punishment, and that for certain crimes, the community expect - as the Court of Criminal Appeal have set out - a degree of harshness in an attempt to deter this offender and others.
[8]
Orders
Mr Ilic in relation to the matter before the Court, you are convicted. Had it not been for your plea of guilty, a sentence of four years would have been imposed.
Your sentence will commence on 14 November 2019.
There will be a non‑parole period of one year and six months. That sentence will commence on 14 November 2019. You will be released to parole on 13 May 2021. The balance of the sentence of one year and six months will commence on that date. The total sentence will expire on 13 November 2022.
Mr Ilic can be taken down. The court will adjourn. Thank everyone for sitting through a very long day.
[9]
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Decision last updated: 05 May 2020