R v NIKOLOVSKI

Thursday, 3 February 2005 R v Jimmy Demitri NIKOLOVSKI Judgment 1 HULME J: On 19 March 2004 this Applicant for leave to appeal was sentenced by Judge Armitage in respect of two offences committed on 31 August 2003. The first was that of robbery whilst armed with an offensive instrument namely a syringe and the second was of detaining the victim of the robbery with the intention of obtaining an advantage for himself. 2 In respect of the first of these offences the Applicant was sentenced to imprisonment for 5 years including a non-parole period of 3 years and 9 months both periods to date from 7 September 2003. The sentence in respect of the second was imprisonment for 3 years including a non-parole period of 2 years and 3 months to date from 7 December 2005. There was thus an effective sentence of 5 years and 3 months and an effective non-parole period of 4 years and 6 months. 3 The sole ground of appeal is that the sentencing Judge erred in failing to take into account the effect of accumulation in setting a non-parole period. 4 The circumstances of the Applicant's offending were summarised by his Honour in words which it is convenient to quote:- "In essence the facts are that at about 9.50am on 31 August 2003, the victim, a student then aged 19, parked her father's car in the car park of the Wallsend Plaza shopping centre. As she was leaving the car, she became aware that someone standing near the vehicle. She then saw this offender open the door and lean into the vehicle towards her. He threatened her with a syringe, to which was attached a needle. He said, "Give me all your fucking money." As he said that he pushed the syringe towards here neck. He repeated the demand and said he was not joking. He repeatedly threatened to kill her if she did not hand over her money. He repeatedly told her not to look at him. When she did hand over some money he demanded more. He threatened to give her AIDS and told her she meant nothing to him. He asked for bank cards and credit cards. When the victim said she did not think she had any, he told her not to lie to him. When she did produce a credit card he asked or the PIN number and again threatened to kill her. She gave him the number and told hi there was no money in the account. The offender said "I am going to check it out. You are not going to more. Lie down across the seat. If you even think about moving I will fucking kill you. I don't care about you. I will fucking kill you". He pushed her down onto the seat and closed the car door. After a very short time the offender opened the door again and said "I fucking mean it. I will fucking kill you cunt if you fucking move" and he closed the door again. About a minute later the offender came back to the car, opened the driver's door and said, "You're right, there is no fucking money in there". The offender again threatened to kill the victim. He told her to give him the car keys and he said he knew what to do with her. He then drove off. As he started to drive the victim said, "I am not going to let you go because you will go to the police. You have got four minutes and all will be over". As they drove, Miss Atkinson looked at him again and the offender said, "Don't look at me". The offender handed her a black beanie and said "Here, put this on. Don't fucking look at me". Ms Atkinson then placed the beanie over her head so that it covered her eyes. As the offender drove, he continued to swear at Miss Atkinson and he continued to threaten her. He eventually stopped the vehicle, took the beanie off and told her to walk. He told her if she stopped and turned back he would kill her. He then demanded that she give him her wallet and he refused to let her take her university books and mobile telephone. The victim walked off and when she thought she was out of sight she hid in the bush. She later walked to the roadway and sought assistance. At about 10.00am, two people stopped to assist her. They described her as being in a very distressed condition and they said that she would not allow them to contact the police. The offender was arrested and charged on 7 September 2003. He declined to take part in an interview. He has been I custody since the date of his arrest. I think it appropriate and necessary that I here refer to the victim impact statement dated 5 February this year, signed by Ms Robyn Douglas, a clinical psychologist. It appears from that document that as a result of this incident the victim has suffered post traumatic stress disorder. In her report Miss Douglas notes in particular that the victim has suffered nightmares and flashbacks incorporating the verbal abuse that was directed at her. She continues to experience disturbed sleep which has left her mentally and physically exhausted. She has experienced a range of physical symptoms due to her anxiety state, including weight loss, abdominal pain, headaches and mouth ulcers. She has been unable to return to her previous working capacity. She reported that the incident has had a considerable financial impact on her as the offender took belongings which she had worked hard with her part time job to obtain. The victim informed Miss Douglas that she no longer felt safe in her car. She also stated that a bag containing new clothes and personal items was taken from her car. Miss Douglas sys at the conclusion of her report that she believes that Miss Atkinson will continue to experience emotional effects for some time to come as a result of the impact of the trauma. She notes that Miss Atkinson continues to attend counselling."

5 The Applicant was born in March 1967 and has a regrettable criminal history. This includes a number of driving offences including driving whilst disqualified, a number of offences of dishonesty, possession of prohibited drugs and the supply of a commercial quantity of drugs. Evidence before his Honour indicated the Applicant had been a drug addict for a substantial period, that prior to his offending he had developed a very heavy drug habit and, at the time of offending, was "hanging out" and withdrawing badly from heroin. 6 His Honour accepted that the offences were committed on the spur of the moment, that the Applicant was remorseful and had "some prospects of rehabilitation" although his Honour referred to these as a "mere possibility of rehabilitation". His Honour declined to find special circumstances. 7 Evidence before his Honour indicated that the Applicant had had an extremely poor childhood and that during time in custody between May 1995 and May 1998 the Applicant had participated in drug and alcohol courses and relapse prevention, HIV and stress and anger management. After his arrest in September 2003 and prior to sentence he had again participated in some drug and alcohol group programs. 8 It was submitted on behalf of the Applicant that in light of his age, antecedents, background and drug problems, the relativity between the total effective sentence imposed on the Applicant and the parole period, only some 14% or thereabouts of the former, the inference should be drawn that Judge Armitage overlooked the effect of accumulation in the structuring of the sentences. Reference was made to R v Lindon [2003] NSWCCA 152 and R v Reicher [2003] NSWCCA 300. In that latter case where the effective non-parole period also represented 90% of the effected sentence I drew such an inference although it should also be observed that I also relied on the Applicant's age, the fact that he hadn't been in prison for previous 30 years, and to the fact that in that case one would have anticipated the usefulness of a supervision over a not insignificant period on release from custody. 9 In this case, although the failure of the sentencing Judge to provide any reasons for fixing an effective non-parole period at more than 75% of the effective head sentence, is surprising, there are factors which would well have inspired his Honour to take the course he did. These include the very serious nature of the Applicant's conduct towards his victim and of the effect on her - matters which, in light of the Applicant's history more than justify the length of the non-parole period fixed. There were also the facts that the Applicant had participated with no long term benefit in drug and alcohol programs previously and there was little to indicate that a lengthy period on parole was likely to be of benefit to him. 10 In making this last observation I do not ignore the fact that in a report from Miss Duffy of Duffy Barrier Robilliard, psychologists she observed "(the Applicant) will also require close probation and parole service supervision upon release, and continuing drug and alcohol counselling in the community. Should there be any more intensive rehabilitation programs offered within the prison system, it would be to his advantage if he could attend." His Honour did not say whether or not he accepted this evidence. For myself, I would think that, having regard to the Applicant's history, whether he would derive any benefit from more than the 6 months parole period Judge Armitage fixed is problematic. 11 Thus there are not the number of factors which there were in R v Reicher to induce one to the conclusion that in determining the sentences he imposed, the effective period during which the Applicant will be eligible for parole was the result of the topic being overlooked. It may also be observed that the conclusion of Judge Armitage's remarks on sentence was in terms:- " I sentence you to total term of imprisonment of three years to date from 7 December 2005 to expire on 6 December 2008. Subject to the Crimes (Sentencing Procedure) Act you will be released on parole on 6 March 2008." 12 The juxtaposition of the two dates argues against the significance of them being overlooked. 13 However, in the end result I do not find it necessary to decide what is the explanation for the result. The Applicant's offending was, as I have indicated, extremely serious. Though recognising these are not the sole criteria, the requirements of general and personal deterrence and retribution are such that no lesser non-parole period inherent in the sentences under appeal was required. No doubt if the Applicant is genuine about reform, at the end of the 6 month parole period which Judge Armitage directed the Applicant will be able to continue his efforts towards rehabilitation with the assistance of some organisation other than the Probation and Parole Service. 14 I am satisfied that no sentence less severe than that imposed on the Applicant was warranted and should have been passed and in that situation Section 6 of the Criminal Appeal Act requires that the Court dismiss the appeal. 15 STUDDERT J: I agree. The order of the Court will be what is proposed by Justice Hulme.

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