R v NIKOLOVSKI [2005] NSWCCA 60

New South Wales Court of Criminal Appeal

CITATION: R v NIKOLOVSKI [2005] NSWCCA 60

HEARING DATE(S): 3 February 2005

JUDGMENT DATE: 3 February 2005

JUDGMENT OF: Hulme J at 1; Studdert J at 15

DECISION: Appeal dismissed

Regina PARTIES: Jimmy Demitri Nikolovski

FILE NUMBER(S): CCA 2004/2713

Crown: E Wilkins COUNSEL: Applicant: M Johnston

Crown: S Kavanagh SOLICITORS: Applicant: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0426

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

- 5 - IN THE COURT OF CRIMINAL APPEAL 2004/2713

STUDDERT J HULME J

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."