R v Maricic; R v Derbas

R v Maricic; R v Derbas - [2022] NSWDC 16 - NSWDC 2022 case summary — Zoe

[3]

The detention offence

On 30 October 2020 at about 12:25pm the principal victim (Mr Sebastian) went to a barber shop in Enmore to get a haircut. He met the offender Maricic. They had a conversation, apparently friendly in nature. The victim handed Maricic his mobile phone with the Instagram app open. Maricic searched the app for his own profile and ascertained that the victim had 'followed' Maricic on Instagram.
The next day (a Saturday), the victim received a 'follow' request on his Instagram account from Maricic. He accepted the request. Over the weekend, the victim and Maricic exchanged messages, and reached agreement to meet on Monday, 2 November 2020 at Maricic's residence in Enmore. This happened to be above the barber shop that the victim had visited the previous Friday. Maricic's home was accessible via Enmore Lane which ran parallel to Enmore Road behind the barber's shop.
At about 2:30pm on 2 November 2020, Maricic exited the rear of his residence via Enmore Lane for a short period of time before returning inside. Very shortly thereafter, the offender Derbas, and another unidentified male (of a large build) walked along Enmore Lane. CCTV footage revealed that Derbas was walking with a butane 'trade flame handy' blow torch (in its undisturbed plastic packaging). Derbas and the unidentified male entered Maricic's premises.
At about 2:40pm the victim drove and met up with Maricic in Marian Street in Enmore. Maricic invited the victim up to his place, representing that he wanted to show the victim something. The victim drove his vehicle and parked it in a street around the corner from his place. Maricic met him and the victim followed Maricic up to his home via Enmore Lane. He entered Maricic's home at about 2:45pm.
When the victim entered, he saw Derbas and the unidentified male, though he did not recognise either of them. Shortly after, one offender punched the victim to the back of his head. This caused the victim to fall to the ground. The victim got himself into a foetal position and covered his head. He was punched and kicked as he lay on the ground.
He was then picked up and had his hands tied with black cable ties. The victim protested, asserting that his targeting was a mistake, that the group had the wrong guy. The offender Maricic corrected him; saying "You know we haven't". He allowed the victim to sit in a chair.
The unidentified male punched the victim's face. The victim tried to defend himself by lowering his head to his knees but with his hands tied, was unable to effectively defend himself.
The offender Derbas went to place duct tape over the victim's mouth, but desisted from doing so after the victim pointed out that he would not be able to speak if he did so.
Maricic demanded to know where his phone and wallet were. Derbas and the unidentified male forcibly removed the victim's car keys, the access pass to the victim's home and the victim's iPhone. Maricic told the victim that he would go to the victim's car to look for his wallet and threatened the victim that if the latter was lying (and Maricic found his wallet) he would bash the victim himself. Maricic left the room, leaving the victim in the company of Derbas and the unidentified male who continued to search the victim.
At about 3:05pm, Maricic exited the rear of his home swinging the victim's set of keys and walked towards the street where the victim had parked his car. Five minutes later he turned back to home. Directing himself to the victim (who was tied up) he demanded to know where he lived. The victim responded that it was in Stanmore. Maricic said he thought that the victim was a liar, on the basis that the victim had previously told Maricic that he lived in Lewisham. He then impliedly threatened him again, telling him "We don't fuck around, who else does this in broad daylight without a mask".
Derbas then struck the victim to the left side of his face. The victim repeated that he lived in Stanmore. That prompted the unidentified male to say "Don't fucken say that address again". The victim was struck to the head again. The unidentified male than approached the victim from behind and grabbed him by his hair and continued pulling it. The victim screamed in pain. The unidentified male then slapped the victim across his face telling him to "stop screaming".
Apparently out of sequence in the statement of agreed facts, the victim then said "Just make sure you don't hurt my cats" (Agreed Fact 31). This request (which the offender Maricic agreed to abide by) anticipated the circumstance that Maricic and Derbas would go to the victim's home (the subject of Agreed Facts 32-34). The victim told Maricic the address of his home. Derbas asked who would be home and what property was present. The victim said no one was at home, although his girlfriend would get home at 4pm. He said he had around $7,000 in cash, watches, jewellery and Louis Vuitton wallets; and that cash was in a safe in the bedroom. Maricic and Derbas left the premises. Before then, Maricic told the unidentified male to watch the victim and anticipated that they may need more information from the victim whilst they were out. If the male obtained it, he was to convey it to them "through the Cipher". They left at about 3:15pm and drove (in Maricic's car) to the victim's residence.
The unidentified male was left with the victim. He got himself a seat, sat himself in front of the victim and held a knife.

[10]

The Crown's submissions

Subject to some exceptions, in its written submissions, the Crown did not really differentiate the seriousness of the offending of both offenders. Both were part of a joint criminal enterprise and both were therefore jointly responsible for the conduct of others in the enterprise. This included the acts of the unidentified male who held a knife to the victim's neck even in their absence; as the enterprise concluded at about 5pm, when cable ties were cut from the victim's hands and he left the offender Maricic's home. But during oral argument addressed to Derbas, the Crown shifted to a position whereby it contended that Maricic's offending was objectively more serious than that of Derbas. This was on account of matters which (in its written submissions) the Crown identified under the rubric of the parity principle.
The period of detention was about 2 hours and 15 minutes, however the offenders were not actually present for all of that time. The victim was lured to Maricic's home, only to find the offender Derbas and the unidentified male waiting for him. This was indicative of some planning and some level of sophistication. For example, the participants to the enterprise had a Cipher facility through which instructions could be passed to enable the offenders to break into the victim's home. Derbas went into Maricic's home with a blow torch. By way of further illustration, and although there is nothing to suggest that was actually used, or threatened to be used against the victim, it was within Derbas contemplation that circumstances might arise where it might be so utilised to threaten the victim (I do not treat this as an aggravating circumstance, but treat it as a manifestation of the degree of planning involved, of both offenders). There was enough planning to suggest that the offending would need to occur in two stages - the kidnapping of the victim, followed by subsequent entry into his home. The victim was assaulted, indeed bashed in the face, by Derbas and the unidentified male after entering into the home and suffered the indignity of having his hands tied with cable ties. Maricic threatened the victim with violence. The offenders ignored his protest that he had been taken by mistake. The detention only ended once the victim complied with the offender's demands that he reveal his address and access to his residence; and the safe located inside.
The purpose of the detention was to obtain a financial advantage, for Maricic. That advantage materialised; not only in the seizure of money (to repay the debt) but also the taking of other items of value. The Crown emphasised that the Court should send a signal against 'vigilante action', or a person taking the law into his or her own hands to redress a private grievance, through the principle of general deterrence.
The Crown noted that, in Derbas' case, he took steps to place duct tape over the victim's mouth. He was a stranger to the victim. Conceivably this would have instilled greater fear in the victim since he had no basis for contemplating how the situation may play itself out.
As to the detention offence, the Crown ultimately submitted that in relation to the offender Maricic, the offending occurred within the mid-range of offending; whereas for the offender Derbas, his offending fell below the mid-range of offending.
The Crown submitted that for the entry offence (against Maricic), property in the value of $7,000 was taken from the victim's home and the circumstances of entry left the victim's home in a state of disarray, with certain items being damaged.

[11]

Maricic's submissions

The offender Maricic submitted that for both offences, his conduct fell under the mid-range of seriousness for the offending; and in the case of the entry offence, well below the mid-range; indeed virtually to the point of being on the lowest end of the spectrum.
He acknowledged that his motive was financial: to have a debt repaid. He told his forensic psychologist that the debt was substantial - $10,000, and had been long-standing after previous requests for repayment had not been availing. It was argued on his behalf that this lessened a need for specific deterrence. His conduct was said to be unsophisticated and impulsive. The circumstance that it was unsophisticated was illustrated by its happening in broad daylight without him disguising himself and in view of CCTV camera footage of Maricic's own home; where the victim was lured into his own home. The risk of detection was inevitable. Although the offending occurred within a joint enterprise, the enterprise was small. He did not inflict, much less threaten, violence (or worse) against the victim or his family or friends. Nor did he know that another member of the enterprise might brandish a weapon against the victim.
His Counsel submitted that the victim was specifically targeted; so that the offending did not involve a random victim of the community. In fairness, as I understood him, the submission appeared primarily directed to the argument that this showed that his client had low prospects of re-offending. I will return to it again when addressing that argument later in these remarks when considering the offender's subjective case. Pertinently, however, the fact cuts both ways: the circumstance that the victim was targeted makes the offending more objectively serious in that it evinced a level of premeditation or deliberation.
In the report of Dr Bradley Jones, a psychologist, reference was made to the offender's cocaine use disorder and that the psychologist was informed about the offender's use of 14g of cocaine for several years prior to his arrest. His Counsel generally submitted that his cocaine use could be viewed as leading the offender down the garden path. It was not suggested, however, that his drug addiction mitigated his culpability.
As to the entry offence, the offender's Counsel submitted that the nature of the 'serious indictable offence' - larceny - which carried a maximum penalty of 5 years' imprisonment, was such that the offending was at the lowest end of the range of offending for conduct of this kind.

[12]

Consideration of seriousness of Maricic's offending

I accept that the period of duration of Maricic actually detaining the victim was relatively short. I refer below to the aggravating circumstance of his threatening the victim in that time, on multiple occasions. The purpose of the detention was to aid in the resolution of a private financial dispute with another citizen. Although serious, that is not the worst motive for kidnapping. I find, and it was not disputed, that the victim must have suffered much torment through his ordeal.
I do not consider that there are any matters, including the offender's cocaine addiction, which substantially mitigate his culpability even if the offender did not plan or foresee all of the events which occurred; as they "got out of hand" as he said to his psychologist. I reject the suggestion that the offending was impulsive. That it was 'unsophisticated' does not assist him: it signified a measure of desperation to resort to vigilante means to obtain that which he had asked for (without success), bypassing legal means of prosecuting a debt claim. He initiated (at least two) others to help him exert coercive force for his financial advantage. It was he who organised for Derbas and the other unidentified male to be in his home and be in a position to provide that coercive force.
Though he did not inflict violence directly himself, he stood by and did not seek to deter or discourage the person or persons who did inflict actual violence from doing so. Even if he did not know that a weapon (the knife) might be used, it was foreseeable that actual force might be inflicted by others within the enterprise if he did not extract what he wanted from the victim and that prospect materialised in his presence; even if the exact means of inflicting force were not known to him.
It is true that Maricic brought the detention to an end. Although it is curious that the victim apparently spoke freely to Maricic after he was released, this has to be seen in the context not only of the physical assaults perpetrated upon him, in Maricic's presence, but also Maricic's further implied threat to the victim should the victim complain to police. It is not unduly speculative to suppose that one among several possible reasons why the victim did not seek medical treatment might be that he might be required to divulge what had happened to him and that this might result in the disclosure of what Maricic (and others in the criminal enterprise) had done to him and the fear of what Maricic might do if complaint was made; another reason might be that he would be expected to divulge what the victim himself had done (allegedly failing to pay a debt) which might cause embarrassment. But it was not a case of the victim brushing off the episode entirely after it occurred. The Agreed Facts (Fact 51) confirmed what would ordinarily have been expected: the victim was visibly distressed when he later recounted to his partner what had occurred to him.
I find that his conduct in relation to the detention offence to be below the mid-range, but above the low end of the range; and closer to the mid-range.
As to the entry offence, I do not accept Maricic's submission that it fell at the lowest end of the range. As indicated, it was not impulsive but part of prior planning that this separate act would have to occur even if it was connected with the detention offence. The offending occasioned different harm both to Mr Sebastian, but also another party, Ms Greech. This was the violation of a security interest in the sanctity of their family home. I infer that Ms Greech, in particular, must have been shocked at what she saw. The circumstance that the 'serious indictable offence' carried a relatively low penalty, may be one indication of the gravity of the offending, but it is not conclusive of the gravity of the offending. A not insubstantial amount of chattels were seized, in value. The home was left in disarray. I consider although it was at the low end, it was not at the lowest end. Maricic's role in this offence was to orchestrate it. It required planning, manifest in the two stages of discrete offending: the kidnapping and then, the extraction of the means (information about the victim's address and security codes) to invade the victim's home.

[13]

Derbas

Counsel for the offender Derbas commenced his verbal argument with acknowledging that the Crown had (in its written submissions) differentiated the roles as between Maricic and Derbas with the offending. But it had done so only from the perspective of the issue of parity. The question of the role played by an offender, in the context of a joint criminal enterprise, had to be front-loaded: it was an indispensable aspect of considering the gravity of the offending itself. The Crown moved to embrace this submission in verbal argument and I accept it.
Counsel for Derbas submitted that the circumstances, as a whole, would bear the characterisation that Derbas played a role only of a subordinate. He had no actual role in the planning of the kidnapping (Agreed Facts 1-7). Although he was a participant when the detention had occurred, he actually arrived two minutes after the detention had commenced (Agreed Fact 9). Counsel acknowledged that his client threw a punch - indeed, he acknowledged that that circumstance was one of aggravation.
Derbas accepted that, by his plea, his client was knowingly involved as a participant in the deployment of coercive force against the victim. Other than the occasion when he assaulted the victim, his Counsel accepted that, for the duration of that period of the detention when he was in attendance, Derbas stood by whilst intense psychological pressure and effective coercive force was brought to bear on the victim, but Counsel submitted that at no stage had his client issued directions to the other participants in the enterprise. It was not shown that he knew that actual violence (by others) would be inflicted. As he later told his psychologist, he felt that he was only there to help scare the victim to assist his friend, Maricic. He was not shown to be aware, or have foresight, whilst he was present, that in his absence, the victim would be threatened with a knife.
The offender Derbas submitted that his offending fell towards the lower end of the range of offending. He only participated in the detention for a period of half an hour. He therefore could not give directions to the unidentified male when he and the co-offender Maricic left the scene to attend the victim's residence. The threats of violence and assault during the period of detention were made by others; including the unidentified male, when the offender was not present. There was nothing to show that he actually knew that the unidentified male used a knife even if, he concedes, the circumstance that a knife may be utilised could have been contemplated as part of the overall criminal enterprise. He only struck the victim once and did not himself threaten the victim.
Further, he did not obtain any benefit for himself from the offending. His motivation was to assist the co-offender, Maricic, in what he understood was an exercise in debt collection. As will be elaborated when addressing his subjective case, indications are that Derbas has a profound weakness in character, with an endemic need to please others. The fact that the motive was to assist his friend was said to lessen the need for specific deterrence.
Overall, he was not the prime mover in the enterprise, but played a subordinate role relative to other participants.
In a report of Ivanka Manoski, it was said that Derbas met the criteria of having a cannabis use disorder and stimulant use disorder, in sustained remission. He informed Ms Manoski that he had been asked by a friend (apparently Maricic) to retrieve money owed and that he had felt pressured to assist him. He said that he felt unable to leave an escalating situation because he did not want to be perceived (by his co-offenders) as weak and, besides, did not want to let a mate down. His Counsel did not suggest that any of this mitigated his culpability.
The Crown submitted that Derbas' offending (for the detention offence) was less objectively serious than Maricic.
I accept Derbas' basic contention that the lesser role of an offender when compared with co-offenders in a joint criminal enterprise featuring the detention of a victim warrants a degree of amelioration of the sentence: Bajouri v R [2009] NSWCCA 125 at [47], [50]. I also accept Derbas' submission that, viewed objectively, his role was more limited than Maricic in the respects identified by his Counsel. He had nothing to personally gain from it and had a minor role in the planning. The kidnapping was not his idea; but that of his friend, Maricic. But it has not been shown that he was actively involved in the planning; he well understood his role, to 'scare' the victim. He admitted to carrying a blow torch into the premises where the detention was to occur. Although there is no evidence to indicate that he actually used or threatened to use it, he well understood the likelihood, in a general sense, that threats of physical violence were likely to be utilised. Derbas' conduct, though very serious, was less serious than Maricic's offending.
I find that Derbas offending, viewed objectively, was between the low end and the mid-range of the scale of offending, being closer to the low end of the range.

[18]

SUBJECTIVE CIRCUMSTANCES OF MARICIC

The offender Maricic was aged 25 at the date of the offending. His Counsel emphasises that his relative youth is one matter that weighs in favour of leniency. I do not place any real weight on this circumstance in mitigation. The offender had not only recently come into adulthood. There was no impediment in the offender's intelligence on account of a lack of education. There is nothing to indicate that his age impeded his capacity to understand right from wrong and I accept the Crown's submission that the extent of planning in Maricic's case pointed against the conclusion of impulsivity to which youth might have contributed.
Much of the offender's background was recounted in what he told the psychologist, Mr Jones. He deposed in his affidavit, which was not subject to challenge, to telling the psychologist the truth (as he perceived it). But some of the background emerged from his mother's testimonial as well. The offender had an uneventful childhood. He grew up in a happy family home with parents in a stable marriage and two (younger) siblings. His mother reports on his completing the Higher School Certificate in 2013. Whilst at school, he excelled in sports and after school, had experience working in different industries.
It appears that his descent began with a bad breakup with his girlfriend about 18 months prior to the subject offending. He grew withdrawn from the family, moved out of home and unfortunately, got into bad company; in the sense of persons who used recreational drugs.
The offender Maricic is entitled to the 25% discount on his guilty plea.
Aside from a traffic record, he had no prior criminal history. The Crown however, argued that the nature of that earlier offending concerned the driving of a vehicle with an illicit drug present in his blood. That however, without elaboration of the precise circumstances, is of a very different kind of offending to the subject offending. In view of the evidence of Maricic's psychologist, about his cocaine disorder, Counsel for Maricic appeared to accept that there may be some connection between his earlier offending and the drug addiction which the psychologist says partly explains the subject offending. This was, however, first time offending for the offences of anything like the subject kind.
The Crown submitted that the earlier offences only occurred in 2020 and that the offender could not be said to have an unblemished record entitling him to leniency. I regard that submission as too harsh, given the different nature of the prior offences, and find that this past record lends itself to a degree of leniency. As the Crown itself acknowledged, this is Maricic's first time before the Court for 'serious' offending.
He has received written testimonials as to his prior good character, respectively, from a friend who has known him since childhood and with whom he regularly speaks by phone (Andrew Papadatos), his mother (Isabell Maricic) and another female friend from childhood (Madelene Athanas). I have read and had regard to those testimonials. I accept that this evidence establishes prior good character in the sense of aiding his friends and family (his contributions to society not being the subject of much specific commentary). His Counsel submitted, and I accept, that prior good character has some greater salience in offending like this, where it could not be said that prior good character is being used to assist in the act of offending itself. This diminishes, to a degree, the need for specific deterrence.
Associated with what I said about the offender's prior record, I accept that the offender is generally of good character, but not in the absolute sense argued for by his Counsel.
The offender's Counsel submitted that he was genuinely contrite. Not only did he give unchallenged (sworn) affidavit evidence indicating his contrition (in contrast to Derbas), supported by expressions of contrition made to others; but his conduct immediately after the offending bespoke contrition: he checked in on the victim's welfare and even gave him money. He promised not to harm the victim's cat. He returned at least one item of property (a wallet belonging to the victim's partner) and, it was submitted, that the Court could infer that he returned others as well. He let the victim go. It was suggested that if the victim continued to remain truly fearful of him, he would not have casually spoken to Maricic for a short period before the victim was led away to his car. I reject the last submission as speculative: there are multiple competing inferences to be drawn from the circumstances in which the victim ceased his detention. In finding this, I place very limited weight upon the circumstance that the offender volunteered to attend Newtown police station as a matter betokening remorse. To the extent that this matter was enlisted in aid of an argument of remorse, as betokening (indirectly) some kind of assistance to police, it would fairly need to be counterbalanced by the circumstance that such cooperation did not extend to participating in an ERISP or making admissions. In the event, the offender's Counsel did not invoke s 23 of the CSP Act. Nevertheless, I accept that he is contrite.
The prompt, or spontaneous degree of assistance to the victim is also relevant to the question of his rehabilitation and prospects of offending.
An LSI-R referred to by Bradley Jones indicates that the offender Maricic is at a low to moderate risk of re-offending, in aid of a submission that there is a reduced need for specific deterrence and corresponding heightening of the factor of aiding rehabilitation.
I noted the offender's Counsel's submission that the offending was targeted, rather than randomly or arbitrarily directed towards others in the community in the context of the gravity of the offending. I do not consider that the fact is altogether helpful to the offender in the way that his Counsel argued. Subject to other matters in his subjective case (such as his experience in custody - including being the victim of an assault - and the custodial environment he has been subjected to), I would have thought that the targeting of a private individual for financial gain elevates specific deterrence. For reasons to be considered later in these remarks, the matter does benefit the offender when consideration is given to the sentencing option of an Intensive Correction Order ('ICO').
The Crown accepts that COVID-19 has made custody more onerous in NSW and that this should be taken into account for both offenders. I do so. I do not accept, however, that the onerous nature of the conditions completely eliminates the requirement for a sentence to give effect to the consideration of specific deterrence.
Beyond that, however, I acknowledge that Maricic, a first time 'serious' offender, has found the custodial experience searing, or salutary. He was assaulted only three weeks into his incarceration and needed to attend hospital for a fractured eye socket and fractured cheek bone.
The offender has appeared to use his time in custody productively. As his Counsel noted, there is no custodial history of misconduct. The Chaplain at the correctional facility where the offender is an inmate commented upon the offender's spiritual growth. His friend, Andrew Papadatos also separately observed a heightened sense of spirituality in the offender since he has been in custody.
It appears that, upon his release, he has aspirations to work as a carpenter and plans to return to college to complete a Bachelor of Business.
The offender gave unchallenged evidence of abstaining from drug taking and immersing himself in physical fitness whilst incarcerated. He will need to continue with these healthy pursuits if his rehabilitation is to progress. He deposed to trying to complete a Positive Lifestyle Program and other courses, subject to constraints caused by the Pandemic, which have frustrated him; through no fault of his own.
Mr Jones expected that if the offender was to reoffend, it would only likely be because of a relapse into substance abuse, the absence of employment, a lack of family support and association with anti-social and substance-using peers.
The offender has been abstinent whilst in custody; which, for someone with his background and given the notorious prevalence of drugs even in a custodial setting, is no small thing for him.
Maricic' Counsel observed that members of his client's family were connected to the sentencing proceeding (conducted by Audio Visual Link in the current Pandemic) as a means of emphasising the support he is receiving, and may expect to continue to receive, from his family.
He has undergone a very difficult custodial experience which, I expect will cause him to choose his associates and friends very carefully.
Although he seems to be in still in the throes of attaining work qualifications, I consider that he is taking proactive steps to assist him. All in all, I find that his prospects of rehabilitation are reasonable; and not, as the Crown had submitted in its written submissions, 'unknown'.

[19]

SUBJECTIVE CIRCUMSTANES OF DERBAS

The offender Derbas was 27 years of age at the date of the offending.
Much of his background below is taken from the information supplied to his forensic psychologist, Ms Ivanka Manoski, who prepared a report for use in this proceeding.
Derbas was of Lebanese extraction, born as the youngest child in a family with four siblings. His parents migrated to Australia as a young married couple. Derbas recounted a relatively stable and functional upbringing. Growing up in the suburb of Greenacre, without the benefit of an 'extended' family, he felt as if he was something of an outsider. It appears that he got involved with some anti-social elements from teenage years. He commented that a police presence was conspicuous with the people he mixed with; so much so that when aged only 16, a gun from a police officer was drawn at him and his friends. This bred in him an early distrust of the police. The offender regarded himself as being something of the 'black sheep' of the family. He was conscious of not excelling academically as well as his siblings and was less well behaved than them. His schooling was mediocre. From an early age, (year 5) he was disruptive. He was expelled at the end of Year 9. He was no more successful when he was sent to two other schools in Years 10 and 11; and again, he did not feel as though he belonged. He told his psychologist that he started taking cannabis from Year 10; taking this substance daily relatively quickly.
When he turned 18, his parents separated for a period of one and a half years before they reunited. During the period of separation, he used illicit drugs as a coping mechanism. This extended also to cocaine as well as cannabis, but also some prescriptive drugs. His father, to whom the offender was very close, had moved back to Lebanon during the period of separation. Unfortunately, his father passed away in the latter part of 2021, being a victim of the COVID-19 Pandemic. In view of his cultural and religious practice, he did not have the opportunity of properly laying his father to rest; a matter which has hit the offender hard. His brother also suffered through the Pandemic, being looked after in ICU. He said he also has a positive relationship with his mother and siblings, which have continued through to the present.
He had not held any stable long term employment. He perceived that he had been 'off the rails' for most of his adult life; an observation which, his Counsel submitted, and I accept, evinces a level of insight. His drug issues had a profoundly dire effect on his capacity to perform stable employment.
It was reported to Ms Manoski that it was not until his incarceration in 2019 that something was done about his substance abuse. The offender spent a year at Niagara Lodge, a residential rehabilitation program in the Central Coast, whilst on bail. He found this to be a positive experience. Once he left the rehabilitation centre, on parole, he became employed at his brother's café. Strikingly, it was whilst he was employed, on parole, when he committed the subject offence and the offence on the Form 1.
His drug issues have continued even whilst in custody. He was found in possession of buprenorphine until he was detected. As a result of all this his psychologist diagnosed him as meeting the criterial for cannabis use disorder and stimulant use disorder, in sustained remission.
The offender is not currently in any relationship. He had earlier relationships. He has no dependents. What was striking was the offender's own insight that he struggled to say 'no' to associates. Ms Manoski diagnosed an Adjustment disorder with mixed anxious and depressed mood. This was significantly affected, however, by the circumstance concerning the loss of his father, which post-dated the offending.
The offender Derbas has a prior record for offences involving drug offences, the proceeds of crime and affray. Unlike Maricic, I do not consider that he can be extended leniency on account of his past history. To the contrary, in his case, it enhances the weight to be accorded to specific deterrence.
The offender relied upon affidavits sworn by his older brother (Fares Derbas) and sister (Nadia Derbas) whose content I have read. Both affidavits emphasised the closeness of the family. Both referred to the offender's susceptibility to engage in misconduct when influenced by 'the wrong crowd'. Fortunately for the offender, his family remain very supportive of him; even expectant of what he can do with more responsibility now that that the patriarch of the family has passed. Supportive as this evidence is, and that of Manelle Zreika (of the AFIC) and Joumana El-Jamal (a longstanding family friend),it cannot be, and was not suggested, that the offender was of prior good character.
The offender Derbas is entitled to the 25% discount on his guilty plea.
The offender wrote a lengthy letter of apology to the Court, in which he expressly recognised the terror his conduct had instilled in the victim. His psychologist reported him accepting responsibility for the offending. Both his siblings expressed opinions indicative that he is remorseful. Whilst acknowledging that out of court expressions of remorse which are self-serving (with a sentencing hearing looming) are to be viewed sceptically (Lai v R [2021] NSWCCA 217 at [79]-[80]), I accept, on the probabilities, that he is contrite even if much of what the offender expressed signified regret for the hardship and other consequences that have befallen him whilst he is in custody. The expressions of remorse were multiple in number.
As with a similar submission advanced on behalf of Maricic, I do not treat the bare fact of his presenting himself to the police station as probative of remorse. As with Maricic, he did not agree to participate in an ERISP or make any admissions to police.
Whilst sympathising with him for the loss of his father and the serious illness of his brother whilst he was in custody, I do not accept that those events entirely absolve the offender from a need for personal deterrence. Nevertheless, those events, compounded with the general onerous conditions in custody to all inmates through the Pandemic, represent hardship which, to some degree, indicates that notwithstanding his record, he should receive some leniency.
Of greater concern is the risk of recidivism and his prospects of rehabilitation generally. Using a LS/CMI scale, his psychologist estimated that he posed a 'medium' risk of future antisocial conduct, in view of his past criminal history, limited work history and educational attainment and drug use.
On the matter of rehabilitation, Counsel for Derbas submitted that it was his client (not the offender Maricic) who was truly at "the crossroads". Counsel did not shy away from his client's far from unblemished record, the notion of someone being at the crossroads denoted that aside from a more recent offence, he had been in trouble earlier, but with some reflection had learnt lessons with the benefit of a sort of epochal event in a person's life and should be given a chance by the Court. He has expressed an aspiration to complete a certificate of business. It remains to be seen, however, his resilience and drive to complete this.
Derbas had a prior record, but he had not only had to endure the onerous conditions of custody during a Pandemic but had to endure the personal torment of not being able to be with his father (who died as a result of Pandemic). But, although in his written submissions he argued that his client had good prospects in terms of the unlikelihood of reoffending, in his oral argument, Counsel for Derbas shifted to submitting that his client's prospects of rehabilitation were guarded. Having regard to the matters referred to in Ms Manoski's report, with her concern about his propensity for criminal peer associations, ongoing drug concerns, and medium risk for re-offending, I find that his prospects of rehabilitation to be guarded.
As with the offender Maricic, the Crown accepts that the Court can take into account the circumstance that COVID-19 has made custody more onerous for Derbas in NSW and should be taken into account.

[20]

PARITY

The Crown noted that a co-offender, Mousawell entered a plea of guilt to a separate offence, being concealment of a serious indictable offence entering into the victim's dwelling with intent, contrary to s 316(1) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 3 years' imprisonment. Mousawell was sentenced in the Local Court to a Community Corrections Order of 18 months.
The Crown submitted that there were practical difficulties in using the sentence against him in evaluating consideration of parity. There was a different offence and a different level of seriousness in the offending. Neither offender addressed the Court on the relevance of Mousawell's position in the assessment of appropriate penalties upon each offender.
Having reviewed the agreed facts concerning Mousawell placed before the Local Court, although he was plainly involved in the seizure of items from the victims' unit, there is nothing specifically to indicate that offender's awareness of the detention of Mr Sebastian or the incidents of that detention. Further the gravamen of Mousawell's offending was relatively minor in the scheme of the joint criminal enterprise: failing to disclose information to the police about his knowledge. In the circumstances, I agree with the Crown's submission that nothing about the sentencing exercise affecting Mousawell materially affects the sentencing of these offenders.
Although the Crown accepted that the individual culpability of participants in a joint criminal enterprise may differ, it is submitted that the Court should not lose sight of the fact that both the offenders (and the other co-offender) were participants to a common crime. I confess to being uncertain as to what followed from this submission. More specifically, the Crown submitted that Maricic's criminality was objectively greater than Derbas: he organised the meeting with the victim; the meeting occurred at his home; the motive of the enterprise was to assist him with the repayment of the debt and he engaged in communications with the unidentified male to ascertain how to enter into the victim's home generally and his safe in particular. All of this, the Crown submitted, indicated that, relative to Derbas, Maricic was the leader, organiser and co-ordinator of the offending.
Counsel for the offender Maricic did not cavil with the Crown's submission that but for his client's planning, none of the offending would have occurred and that Maricic had used the offender Derbas and the other offender as a scare tactic. In that sense his position was worse than Derbas. On the other hand however, he submitted that Maricic's subjective case was stronger than Derbas' case so that ultimately, the penalty may not be dissimilar.
Counsel for Derbas adopted the comparative analysis of the Crown, in terms of the objective seriousness of the offending conduct between Derbas and Maricic. With reference however to the other factors (such as his client engaging in aggravating factors and an inferior subjective case to Maricic) he submitted that so long as the length of any term of imprisonment that Derbas received did not greatly exceed that of Maricic, his client could not be aggrieved if Maricic, but not him, was ordered to serve a sentence of imprisonment by way of intensive correction. Counsel disavowed any suggestion that a sentence of imprisonment for Derbas by intensive correction was appropriate.
Separately, Counsel for Maricic submitted, with reference to this principle, that Maricic should not effectively be punished twice for two related offences for the forensic reason of his pleading guilty to two offences; whereas Derbas was to be punished once for the principal offence against him should the Court not accede to his application to be serve a sentence of imprisonment by intensive correction.
To anticipate what I am shortly to say about the sentences to be imposed on each offender, I do not consider that the differential as between the effective periods of imprisonment give rise to any justified grievance in the case of Maricic; even if, overall, he had in my view a superior subjective case to the offender Derbas. The fact remains that the criminal enterprise in which both offenders embarked was his brainchild, Derbas performed a fundamentally auxiliary or subordinate role and notwithstanding the presence of a greater number of aggravating circumstances in Derbas' case, it was Maricic's involvement in both the kidnapping and entry offending that was markedly more serious than Derbas.

[23]

Consideration

Although there are differences in degree as between both offenders, in each case, on the detention offence, there is a commonality in the need for a sentence to reflect general deterrence, denunciation, to make them both accountable for their criminality and to recognise the harm, protecting the community and specifically the indignity suffered by the victim. In both cases, these matters have to be balanced against the desirability of imposing sentences that will enhance each offender's rehabilitation.
I take into account the fact that Maricic's offending for the detention offence was objectively more serious than Derbas; even if Derbas' offending was aggravated in a more profound way than Maricic. Further, I generally conclude that Maricic had a stronger subjective case than Derbas, including the absence of any material serious antecedents, and more positive prospects of rehabilitation. Particularly telling, in my view, is the strength of Maricic's remorse. In his case, it was remorse which, perhaps uniquely for offences of the subject kind, manifested itself spontaneously at about the point when the offending concluded, through the solicitude he demonstrated to the victim, including the provision of money to him. In what is, his first time in custody, he has not only undergone the hardships associated with social distancing restrictions from the Pandemic (a matter all inmates, including Derbas, have been subjected to), Maricic has also been subject to a brutal physical assault. All of these subjective matters I referred to warrant a certain degree of leniency and I accept that they lessen the need for specific deterrence and the force of the consideration regarding the need to protect the community.
In the case of Derbas, contrary to his Counsel's submission, in my view, the offence on the Form 1 does elevate the considerations of specific deterrence and retribution on the principal offence against him.
In both cases, on the detention offence, the offenders are entitled to the 25% discount on the plea of guilty. Maricic is entitled to the same discount on the entry offence.

[26]

Resort to comparable cases and JIRS statistics

Counsel for both offenders took the Court to JIRS statistics and a sample of aggravated detention cases [1] . (No statistics were furnished in relation to the aggravated entry offence) Counsel for Maricic apparently submitted that a range of 'tariff' for the aggravated detention offence might see a non-parole period imposed of between 9 months and 2 and a half years, subject to appropriate discounts. Counsel for Derbas calculated, from his analysis of the statistics, that since the sentencing reforms came into effect from September 2018, of the 74.3% of cases in which a sentence of imprisonment was imposed for the offence of aggravated detention (only) a clear majority of those resulted in non-parole periods being no more than 18 months' duration.
Counsel for Maricic argued that if the appropriate starting point (as an aggregate for both offences) was a sentence of 3 and a half years, then with the discount for the guilty pleas and factoring time served already in custody [2] , the Court might regard an aggregate sentence of less than 3 years as appropriate. That being so, Counsel submitted that it was open for the Court to consider (under s 68(2) of the CSP Act), as the appropriate means through which the offender might serve a sentence of imprisonment, an order for intensive correction. That, Counsel recognised, would necessitate adjournment of the sentencing hearing in order to receive a sentencing assessment report. He argued that suitable conditions could include a home detention condition, an abstinence condition, and non-association condition. All of this, he argued, would aid the offender's progress towards rehabilitation. Conversely, continuation of custody might bring undone his path to rehabilitation.
Counsel for Maricic submitted that he does not pose a real risk to the safety of the community (thereby satisfying s 66(1) of the CSP Act), since his conduct at the time of the offending, his remorse, his subsequent progress in incarceration (and experience of that incarceration) and his subsequent progress. In the circumstances, the discretion in s 66(3), it was argued, pointed to a community-based mode of serving a term of imprisonment, subject to strict conditions. An ICO would more likely address his risk of re-offending (s 66(2)).
The Crown addressed only briefly on this sentencing option. It challenged the starting premise of Maricic's argument, centred upon a supposed 'tariff' range of cases from the JIRS statistics and sample of cases referred to by Maricic. For the detention offence, the kind of offending was too varied on the facts as to make the statistics or any perceived sentencing pattern reliable. In this respect, I agree with the Crown. It is well recognised that in detention offence cases, the facts are very specific and are not sufficiently homogenous so as to make reference to statistics of much assistance: R v Newell [2004] NSWCCA 183 at [43]. That is not to say, however, that the trends in the sentencing statistics identified by Counsel for the offenders are entirely irrelevant. I have passing regard to them, but have been conscious about their limitations.
The Crown argued that specific deterrence had a greater role to play than that recognised by Maricic and that this principle, along with the requirements for a sentence to address general deterrence, denunciation and adequacy of punishment made an order for imprisonment served by ICO inapposite, for the purposes of s 66(3) of the CSP Act.

[27]

Consideration

Where, as here, there are two offences, and after a finding that the s 5 threshold is crossed, the authorities indicate that the next step in the analysis of whether a term of imprisonment should be served by ICO is to determine the appropriate term of the sentence. For multiple offences, that may be an aggregate sentence. It is wrong to approach this question with an intention to make an ICO first, and then to work backwards to frame the length of the sentence.
In my view, the appropriate indicative sentence for the detention offence for the offender Maricic is 3 years and 4 months which, after the discount on the plea, is 3 years. For the entry offence, the indicative sentence is 18 months' imprisonment which, after the discount on the plea, is 1 year 1 month and 15 days. Applying the principle of totality, including the considerations of partial concurrency and partial accumulation earlier adverted to, as a starting point, I would impose an aggregate sentence of imprisonment of 3 years and 6 months.
Acknowledging the expedient identified by Simpson AJA in Mandranis v The Queen (2021) 289 A Crim R 260 (at [61]-[63]), and taking into account the significant period that Maricic has already experienced in custody from 15 December 2020 up to 11 February 2022 (423 days, or 1 year, 1 month and 27 days), I accept that in the event that an ICO was found to be the appropriate mode of serving the sentence of imprisonment, it would be open for the balance of the term of imprisonment to be reduced below the 3 year limitation imposed for aggregate sentences by s 68(2) of the CSP Act, and therefore to be served in the community, under supervision. Deducting the time already spent in custody would yield an appropriate term of 2 years 4 months and 4 days.
Being thereby 'qualified' to obtain a sentence of the balance of the term of imprisonment, after the period in custody already served, being by an ICO, it is now pertinent to address whether the requirements in s 66 of the CSP Act indicate that the sentence of imprisonment for Maricic be served under communal supervision.
As Harrison J said in R v Pullen (2018) 275 A Crim R 509 (Johnson J and Schmidt J agreeing) at [84], the concept of community safety (in s 66(1)) is inextricably linked to the consideration of rehabilitation which, to a very substantial degree, is the subject matter of s 66(2). Although I consider ss 66(1) and (2) separately, for analytical purposes, they do not operate independently.
As to s 66(1), there is force in Counsel for Maricic's submission that the offending was targeted to an individual for a financial motive. As noted previously, whilst that aspect augmented the seriousness of the offending in the sense of indicating the degree of planning, on the other hand, it assists the offender with his argument that he does not present a threat to the safety of the community overall. Relevant also to this is the absence of antecedents indicating violent behaviour or other offences of the subject kind towards members of the community generally.
As to s 66(2), I have adverted to the promising signs of Maricic's rehabilitation and his remorse. I consider that a term of imprisonment served by intensive correction is more likely than full-time detention to enhance that rehabilitation and thereby reduce the likelihood of his re-offending.
It is open for a sentencing judge to reject the option of an ICO simply by reference to s 66(3), on account of the seriousness of the offending, regardless of what findings might be made in regard to ss 66(1) and (2): Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294 per Simpson AJA (Johnson J agreeing) at [186]-[187]. In my view, although Maricic's conduct plainly is so serious as to justify the sentence of imprisonment, his subjective circumstances, reflecting a reduced significance to specific deterrence and community protection, make an ICO prima facie appropriate.
However, by s 17D of the CSP Act, an order that his term of imprisonment be served in this manner cannot be made unless the Court has obtained a sentencing assessment report. This should include, among other things, consideration as to the suitability of the imposition of a home detention condition; and other conditions. I am not satisfied (for the purposes of s 17D(1A)) that the Court has been furnished with sufficient information to make an ICO, in the sense of appropriate conditions for such an order.

At a glance

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Judgment (32 paragraphs)

Legislation Cited (2)

Cases Cited (12)