District Court New South Wales Medium Neutral Citation: R v Kominkovski [2023] NSWDC 511 Hearing dates: 22 September 2023 Date of orders: 22 September 2023 Decision date: 22 September 2023 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Imprisonment sentence of 4 years 10 months with a non-parole period of 2 years 5 months Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Violent offences — Aggravated robbery — In company — With corporal violence — Dangerous weapon SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — ­Diligent completion of residential rehabilitation program SENTENCING — Penalties — Imprisonment — Aggregate sentence SENTENCING — Relevant factors on sentence — Appropriate level of discount for strict quasi custody — Co-offenders — Objective seriousness — Parity — Quasi custody taken into account — 50% reduction given — Courts should avoid too much mathematization — Totality SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Offender's background — Role of offender — Remorse — Special circumstances Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW) Cases Cited: Afu v R [2017] NSWCCA 246 Bell v R [2019] NSWCCA 271 Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41 Eastway v R unreported NSWCCA 19 May 1992 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kelly v R [2018] NSWCCA 44 Kljac v R [2023] NSWCCA 225 Lau v R [2010] NSWCCA 43 Love v R unreported NSWDC 11 November 2022 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Alcock [2023] NSWDC 326 R v Brennan (a pseudonym) [2023] NSWDC 328 R v Campbell [1999] NSWCCA 76 R v Cartwright (1989) 17 NSWLR R v Chamberlain unreported NSWDC 25 May 2022 R v Delaney [2003] NSWCCA 342 R v Gee [2023] NSWDC 327 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Herring (1956) 73 WN (NSW) 203 R v Munn [2022] NSWDC 264 R v Underwood (a pseudonym) [2023] NSWDC 309 Renshaw v R [2012] NSWCCA 21 Category: Sentence Parties: David Robert Kominkovski (the offender) Director of Public Prosecutions (the Crown) Representation: Counsel: S Howell (for the offender) N Keay (Director of Public Prosecutions) (the Crown) Solicitors: Morrisons Law (for the offender) Solicitor for Public Prosecutions (for the Crown) File Number(s): 2022/285125 JUDGMENT – EX tempore revised Introduction – A violent robbery 1. In the early hours of the morning of 10 February 2021 there was a violent robbery at a home in southern Wollongong. 2. Signed and agreed facts put before the Court state that four offenders entered the property. One man held a gun and pointed it at both victims. Another male stomped on the female victim, kicking her back and ribs, he also kicked the family dog. The male victim stumbled into the bedroom and the door was closed behind him. The male with the gun pointed it at the female victim's head. 3. One man ran to the opal display case and grabbed the opals and put them in the bag. Another man was armed with a machete, he stood by the opal display case. A fourth man stood near the bedroom door and appeared to be timing. The males were heard to say, "Where is he? Get the stones". A short time later the fourth man called out, "Time". The man who had been collecting the opals scooped them up and they all ran from the house. The incident took less than two minutes. 4. The opals taken were valued at half a million dollars. Only a small portion were recovered, on the owner's estimation. They were recovered after a thorough and extensive police operation ensued. 5. A number of surveillance techniques were used during this investigation. Those investigations led to the arrest of a number of people, including David Kominkovski. 6. During the course of the investigation police intercepted a number of calls, including some from Kominkovski. One call, at Agreed Facts par [38], had others saying the proceeds were split "four ways". Another has Kominkovski saying he "got nothing": Agreed Facts par [192]. There is another conversation where Kominkovski received a message which talks about, "a stone that you gave Jay before, how much did you get for it?": Agreed Facts par [35]. 7. It is impossible on the facts before me to determine exactly who did what. In other matters I have heard evidence, and that evidence did not assist. I was unable to reconcile the evidence and other objective facts. The descriptions given by the female victim did not closely match any of the particular offenders, all of whom I have seen in person. 8. So far as this offender is concerned, the prosecution did not assert that he was either armed or was the person who assaulted the female victim. That concession was fairly made. Mr Howell, who appears for the offender, submits I could find he was the man at the door as opposed to, on the facts before me, the man who collected the opals. 9. Given the concession by the Crown, and given that those two may have had equally lesser culpability than those who inflicted violence or were armed, I do not need to resolve that issue. I do not believe on the facts before me that I can. 10. It is obvious that the proceeds were valuable and the Agreed Facts before me indicate considerable steps were taken to process the proceeds of crime so that a reward could be received by those involved. 11. It is important to note that there is no evidence before this Court that Kominkovski was involved in attempting to deal with the proceeds of crime and he is not to be sentenced for that offence, nor is it to be taken into account in his case. Fact finding regarding dealing with the proceeds of crime 1. Kominkovski made an assertion to a psychologist that he got no reward. I cannot evaluate the accuracy of that comment. Accordingly, I could take it into account as a matter of mitigation. 2. In the absence of evidence, a court must sentence according to what is known or agreed: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54. Here, as I indicated in discussion with the parties, it would be impossible for me to form a view that he did not expect some reward. To the contrary, his wife gave evidence that he had no money and he wanted drugs. These were powerful motives to seek a reward by the commission of offences such as this. 3. In terms of this offender's role in the planning and preparation, again, there is no evidence before me to indicate that he was involved in any advanced planning or preparation for this event. It is obvious from the event itself that there must have been some immediate planning by those involved, given the professional nature of the operation that was carried out. By using that term, I do not mean that Kominkovski was a professional criminal, to the contrary, all the evidence before me indicates that he was recruited to play a role in this specific enterprise and there is no evidence that he was in any way a professional armed robber. Plea of guilty 1. When he was before the Local Court, he accepted responsibility for his involvement in this offence and indicated that he would plead guilty to Specially Aggravated Break into and Committing Serious Indictable Offence: s 112(3) Crimes Act 1900 (NSW). 2. The utilitarian value of that plea requires I reduce the otherwise appropriate sentence by 25%. His guilty plea has other value, and I will synthesise that to his advantage when I formulate a sentence. Objective seriousness 1. Multiple aggravating circumstances were pleaded that were elements of the offence, but others were present. The offending here was planned and well executed. Although 'in company' is an element of the offence the force of numbers is a relevant factor. So too here is; the nature of the weapons used, the fact that multiple weapons were used, the intensity with which the weapons were used, the fact that there was corporeal or actual violence to the female victim, the fact that for a short period only the male victim was isolated, and the significance and value of the property taken. All together these indicate how serious this offence was. It was a very violent home invasion. It was a grave crime that requires significant punishment. 2. Given the nature of the offence I am obliged to consider the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 and s 42A Crimes (Sentencing Procedure) Act 1999 (NSW). For those familiar with what I commonly call the 'Henry guidelines' and from what I have outlined, looking at the objective features only, it should be clear that this matter's objective seriousness falls well above the guideline. Maximum penalties and standard non-parole periods 1. The offence of Specially Aggravated Breaking into and Committing Serious Criminal Indictable Offence has a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years: s 112(3) Crimes Act. Careful attention should always be given to maximum penalties and standard non-parole periods, not just because parliament has legislated for them. Here, both provide sentencing measures to be balanced with all other relevant factors. Content must be given to the standard non-parole period. Criminal record 1. Kominkovski comes before the Court with a criminal record for driving and drug offences. All were dealt with by fines or bonds. He is entitled to the leniency often given first offenders despite his acknowledgment in the material before me that he has been a regularly using illicit drugs. There is no indication in the material before me, and I accept, that he was not involved in regular or serious criminality before this offending. Quasi custody 1. He has spent 25 days on remand before being given bail to attend a rehabilitation facility. Those days will be credited to him: s 24A Crimes (Sentencing Procedure) Act. He spent his time in custody during the pandemic. He was in COVID-19 quarantine. For most of that period, he was isolated, he did not have access to family. He would not have had access to regular programs and his wife, in evidence, told me, and I am prepared to accept, that he also spent that time "coming down" from his methylamphetamine addiction. 2. He then spent time, and is still at, the residential program Odyssey House, under quasi custodial conditions. His time in that facility will be taken into account to reduce the sentence: R v Delaney [2003] NSWCCA 342. It has other value; it was residential, it was disciplined, it was productive. His liberty was effectively restrained for the first nine months of that program and, to a lesser degree but still restrained, as he completes it. 3. The first nine months were spent in what is called a "bubble," although he was allowed some access to his family. It is a strict program with both cardinal and major rules that must be kept. The first stage is withdrawal and then a multi-stage program with Core and Senior programs. 4. He has successfully moved through each stage, accepting more and more responsibility for himself and others. He entered the re-entry stage on 28 July 2023. He has been diligent and engaged, he has engaged successfully in educational and life skills courses, he is described as hardworking and an outstanding role model. The word 'diligent' occurs regularly. Regular testing shows he has remained drug free. He will be welcome to continue at Odyssey as a volunteer as he has shown a capacity to help others as a role model and mentor. 5. It is accepted that he must and should receive a discount or a reduction in the otherwise appropriate sentence relevant to a proportion of the time spent at Odyssey: Kelly v R [2018] NSWCCA 44 at [11]. There are other benefits however, to this period spent in rehabilitation, that again will be synthesised to the offender's advantage. 6. My attention was drawn by Mr Howell to the recent decision of Kljac v R [2023] NSWCCA 225 at [30]. Mr Howell submitted that in the particular circumstances of this case, given the level of loss of liberty involved, particularly in the first nine month stage of the program, that a reduction equivalent to 75% of that time should be given. 7. A figure of between 50% and 75% is often cited in such matters: R v Campbell [1999] NSWCCA 76 at [24]; Renshaw v R [2012] NSWCCA 21; Kljac at [30]. It is my general practice to award 50% for programs such as Odyssey House, or similar programs, and I have done so in relation to co-offenders and others. 8. In search of the genesis of the 75% figure that is often quoted I went to Eastway v The Queen unreported NSWCCA 19 May 1992 and R v Cartwright (1989) 17 NSWLR at [243]. Cartwright is the only case I could find where 75% was given. That was a particularly unusual case where a person on bail was effectively under the control and supervision of Federal Police while he was helping them with their enquiries. In Eastway, which has some similarities to the current case, there was very successful engagement and completion of an Odyssey program, 50% was described as a fair assessment. 9. These authorities were discussed today. Mr Howell responded that my discretion should not be confined to a 50%. 10. There are dangers in any sentencing exercise where arithmetical solutions are suggested. Courts should avoid too much "mathematization", to quote McHugh J in Markarian v The Queen [2005] HCA 25 at [52]. 11. If I was to award a higher percentage than 50% for the very strict part of his time at Odyssey, I would then have to apply a different percentage for other months, where his residency conditions were not so strict. I am not going into that level of mathematization. I propose to allow 50% of the period spent at Odyssey House for the complete period up until today. Victim impact 1. There is no victim impact statement from the male victim. That absence does not give rise to an inference the offence had no impact on him. 2. I have read the female victim's impact statement. Care needs to be taken. It was not supported by medical evidence and the Agreed Facts before me are not sufficient to account for the apparently long physical injuries noted by the female victim. Nevertheless, what she said about the terror of the night and the impact on her in terms of having to relocate and in terms of her psychological health are entirely understandable reactions to the robbery and to a home invasion such as this. She sees herself as a survivor. She is to be commended for the efforts she has taken to get her life back on track after what would have been a terrifying incident. The emotional impact is what one would expect, and it is one reason for the harsh and retributive penalties imposed for offences of this nature. Subjective case 1. I have heard from the offender's wife. I have the offender's letter to the Court, I have a helpful report from Ms Duffy, a forensic psychologist, and a large number of personal references. Kominkovski is supported by members of his family and friends. 2. Most of that material is uncontroversial. He was born in 1985. There is some history of childhood adversity involving strict discipline, physical discipline, and abuse of alcohol by parents, although at the time the care was provided it was regarded by him as normal. He left school early, but he obtained an apprenticeship and studied at TAFE. He has been in constant work for most of his life. 3. He married young. His wife is still with him, and, by her evidence today, still loves and supports him. He is regarded as a devoted father to his children. The marriage was not without its difficulties, particularly after he took up the use of ice in his late twenties. He left the family home for a period and the family had to, when he resumed living with them, put up with a father who was both working and providing but at the same time, a drug user. He was introduced to drugs by his brother, someone known to the Court having, sadly, previously sentenced him. 4. He was able to work while an ice user despite ice use being inconsistent with his professional responsibilities. He has trade qualifications and works as a welder/boilermaker in crane construction. 5. His personal referees speak of an honest, hardworking man, a devoted father, and a man of integrity. They all believe this offence is out of character and, on all the material before me, I accept that it was. His friends and family are supportive, they are very proud of his achievements at Odyssey House. His employer speaks highly of him – he has maintained contact with his employer, and full-time work is available to him any time – he is a well-regarded employee and a team leader. Remorse 1. Although he did not give evidence, he wrote a letter to the Court. Except where the matter goes to the objective circumstances of the offence, I believe I can accept what he said in his letter or second-hand to Ms Duffy. He showed acceptance of responsibility by his guilty pleas. He expressed regret to Ms Duffy and others. He said in his letter that, "I've done a lot of thinking while at Odyssey" and he wants to say to his victims, "I'm truly sorry". His expression of regret is accompanied by an expressed desire to give something back to the community. 2. Even when given on oath, expressions of remorse are sometimes difficult to gauge. Crocodile tears can be convincing. I prefer to judge a person's remorse based on the practical steps that they have taken to facilitate the course of justice, to put in practice what they have promised, that is, accept responsibility and change behaviour to avoid repetition. He spoke of his shame, and I am prepared to accept, he feels that shame. Drug use 1. It is accepted he was an illicit drug user. I accept as a consequence of his drug use, he was not thinking clearly at the relevant time. As I said in discussion, this may have made him more dangerous when he entered those premises. It also explains the impulsivity of what he did. Drug use does not mitigate this crime, but drug use and any underlying conditions that made a person vulnerable to using illicit drugs allows me to understand why someone who is otherwise a law-abiding citizen did what he did and continued to do it. It helps me understand both his state of mind at the time and his incapacity to exercise sound judgment. It helps explain his involvement, perhaps impulsive, in this offence. It is relevant here because it goes to his subjective case because the origin and extent of his addiction, and his attempts to overcome it, impact on his prospects for the future: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. 2. Ms Duffy diagnoses him as having a Substance Use Disorder. That seems a sound conclusion. She said that the history taken is not at all uncommon and that childhood adversity and household dysfunction have been found in numerous studies to be risk factors for subsequent depression and substance abuse. She indicates that he has developed greater insights into his emotional functioning. She forms the view that poor boundary setting and difficulty in saying "no" seem to be his underlying characteristics. 3. A commitment to remaining abstinent is critical to his future rehabilitation. She ties his offending to his substance abuse and indicates that he would benefit from programs such as Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Addiction or Intensive Drug and Alcohol Treatment Program (IDATP). He needs to learn resilience and build on what he has learnt at Odyssey, the capacity to say no to drugs. 4. His wife spoke of the toll that this offence and his incarceration and then period staying at Odyssey has had on him, and the toll taken on him worrying about returning to custody. That is understandable. Parity 1. I have previously sentenced Lachlan Alcock, Charlie Brennan (a pseudonym), Ricky Munn, Brandon Gee, Tina Chamberlain and, on appeal from the Local Court, Debra Love (Clayton Love's mother). Clayton Love's matter was stood over. He will be sentenced shortly: R v Alcock [2023] NSWDC 326; R v Brennan (a pseudonym) [2023] NSWDC 328; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; Love v R unreported NSWDC 11 November 2022; R v Chamberlain unreported NSWDC 25 May 2022. 2. Alcock was sentenced for his role in this offence (s 112(3) Crimes Act) and the Possession of an unrelated Prohibited Weapon (s 7(1) Firearms Act 1996 (NSW)). A Deal with the Proceeds of Crime and Possess Prohibited Weapon offence were taken into account on a Form 1. After reduction for his early plea of guilty, I sentenced him to 7 years imprisonment with a non-parole period of 4 years and 3 months. 3. Brennan was sentenced, for Specially Aggravated Breaking into Dwelling House (s 112(3) Crimes Act) and Dealing with the Proceeds of Crime (s 193B(2) Crimes Act), to an aggregate term which was reduced because of a number of factors personal to him. 4. Kominkovski's sentence must be determined having regard to the circumstances of the co-offenders and their respective degrees of culpability. "Like must be compared with like". However, different personal and criminal histories may "justify a real difference in the time each will serve in prison": Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. 5. This principle, known as parity, is a classic example of the need, so far as possible, to ensure equal justice: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246. In like cases, or cases which have some similarities, that principle can also encompass the structure of the sentence and its non-parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271. 6. There is little to distinguish between the roles of men who entered the premises during the Aggravated Break and Enter. But here I can reduce this offender's culpability to a modest degree because there is no evidence he was armed or assaulted the female victim. However, he was aware that the others were armed and, given the nature of the home invasion and the violence that was obviously intended to intimidate those known to be in the premises into submission, it would have been expected by everyone involved that violence would, at the very least, have been threatened. So, the reduction in culpability must only be modest. 7. I note Kominkovski has no additional offences to be considered and there is no evidence he played any active role in any subsequent offending. His criminal record was limited significantly in comparison with the others and his subjective case warrants a greater leniency than Alcock and Love (who is currently part heard before me). Submissions 1. I have received written and oral submissions from Ms Keay, Deputy Senior Crown Prosecutor, and Mr Howell, counsel for Kominkovski. Both had an opportunity to speak to those submissions. I have sought to address the matters, raised by them specifically, during the course of this judgment, but there was little between them in terms of principle. Structure 1. Here I will make a significant adjustment to the ratio between the time that must be served and the time on parole. Kominkovski will need help when he returns to the community with learning to adjust to normal community life. He will need some supervision. But his demonstrated progress towards rehabilitation has, by comparison with many, many others, been remarkable and has to be rewarded. 2. I am also acutely conscious of the warning given by Ms Duffy at pars [48] to [51] of her report, Exhibit 1 on sentence: "Mr Kominkovski's offending behaviour is tied to his substance use and vulnerability to influence of antisocial associates such as the co accused. His risk of reoffending would be reduced if he were able to complete the rehabilitation program with counselling targeted at those identified areas of concern." 1. That cannot be done. To the contrary, he will be returned to gaol. It goes without saying that in gaol he will be dealing with antisocial people. He will be dealing with people with significant drug problems and there is always a risk that his existing vulnerabilities will be exploited by others. There is thus a risk of relapse. 2. The severity of a gaol sentence should not operate to reverse progress towards rehabilitation. Too long a period in custody could demoralise or induce a feeling of hopelessness that the good work that has been done has been set aside. That should be avoided if at all possible. But a proportionate sentence is still required and the minimum time he serves in custody must be the absolute minimum that the seriousness of the offence and the other purposes of sentencing require. 3. Turning briefly to that sentencing, anyone in the community would expect just retribution for an offence such as this. Victims must be vindicated and a community expectation of severe punishment, as reflected in the maximum penalties, made clear. 4. I do not believe he will offend again and any time in custody would be a deterrent to him. Synthesis 1. I have to synthesise in all those matters and all relevant known facts. I have to arrive at a single result which takes due account of them all. It is the duty of the judge to balance all these factors and arrive at a sentence that is just in all the circumstances. This balancing involves a process of instinctive synthesis. I do not need to spell out every aspect of my reasoning. It is a bit like if one is doing a cooking exercise, I have to list and discuss the ingredients, but I do not have to set out the entire recipe. I do not apply the relevant factors in any mechanical or mathematical way; this is not possible as the many factors a judge has to measure are incommensurable and, in some respects, inconsistent as they pull in different directions. I am allowed a measure of discretion and I will exercise that discretion: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41. 2. There is no single sentence that is just in all the circumstances. I must weigh all relevant matters. Mitigating factors can go only so far. I will give Kominkovski, so far as I am able, the benefit of the significant progress he has made, but a proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]. 3. That said, I can and will extend what leniency the subjective case and the progress made allow. 4. I indicate, for transparency's sake, that there is a 25% reduction for the utilitarian value and that my starting point was a sentence of 6 years and 6 months. The sentence will be backdated 194 days. This includes 50% of time in Odyssey and the 25 days on remand. The term of the sentence will be 4 years and 10 months. Formal orders 1. A formal conviction will be entered. The sentence will commence on 12 March 2023. There will be a non-parole period of 2 years and 5 months. The offender will become eligible for consideration for release to parole on 11 August 2025. The balance of the term, 2 years, and 5 months will commence on 12 August 2025 and expire on 26 January 2028. This reflects a significant finding of special circumstances and a reduction for ease of calculation. 2. Mr Kominkovski, you will be eligible for consideration for release to parole by the State Parole Authority on 11 August 2025. ********** Amendments 23 November 2023 - Typographical error amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2023