Ilievski v R [2014] NSWCCA 321

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ilievski v R [2014] NSWCCA 321 Hearing dates: 25 July 2014 Decision date: 18 December 2014 Before: Hoeben CJ at CL at [1] McCallum J at [2] Garling J at [39] Decision: Leave to appeal be granted; appeal be allowed; sentence passed at first instance be quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole period of 6 years commencing on 12 April 2012 and expiring on 11 April 2018 and a balance of term of 4 years expiring on 11 April 2022. Catchwords: CRIMINAL LAW - sentence appeal - whether the sentence imposed was too severe - whether the sentencing judge erred in failing to take into proper consideration the applicant's intellectual disability - whether the sentencing judge erred in finding that the applicant was the mastermind behind the offences and sentencing him as the principal offender - parity Legislation Cited: Crimes Act 1900, ss 112(2), 113(2), s188(1) Crimes (Sentencing Procedure) Act 1999 s 53A(2)(b) Category: Principal judgment Parties: Billy Ilievski (Applicant) Regina (Respondent) Representation: Counsel: A Radojev (Applicant) Solicitors: File Number(s): 2010/81175 Publication restriction: None Decision under appeal Date of Decision: 2012-04-12 00:00:00 Before: Finnane DCJ File Number(s): 2010/81175

Judgment 1HOEBEN CJ at CL: I agree with McCallum J. 2McCALLUM J: Billy Ilievski seeks leave to appeal against the sentence imposed upon him by Finnane DCJ in the District Court on 12 April 2012. The judge imposed an aggregate sentence in respect of a total of 20 offences in a series of breaking, entering and stealing from commercial premises. The applicant was arraigned on an indictment containing 12 counts, to which he pleaded not guilty. The judge directed verdicts of not guilty on 2 counts and the applicant was found not guilty by the jury on a further count. He was found guilty of the remaining 9 counts. He then pleaded guilty to each of the 5 counts on a second indictment and asked the judge to take into account a further 6 counts on a form 1. 3The convictions related to a course of offending undertaken with three co-offenders commencing in July 2009 and continuing until March 2010, when the applicant was arrested. The particular offences for which the applicant was sentenced were as follows: (a) on the indictment on which the applicant stood trial, four offences of breaking and entering and committing a serious indictable offence (stealing) contrary to s 112(2) of the Crimes Act 1900. That offence carries a maximum penalty of imprisonment for 20 years and has a standard non-parole period of 5 years. There was also an offence of attempted aggravated breaking, entering and stealing, which carries the same maximum penalty (20 years) but no standard non-parole period. There were three offences of aggravated breaking and entering with intent to steal, contrary to s 113(2) of the Crimes Act. That offence carries a maximum penalty of imprisonment for 14 years. Finally, there was an offence of knowingly disposing of stolen property contrary to s 188(1) of the Crimes Act, which carries a maximum penalty of imprisonment for 10 years; (b) the offences on the second indictment (to which the applicant pleaded guilty) were five further offences of aggravated breaking and entering and committing a serious indictable offence (stealing) contrary to s 112(2) of the Crimes Act; (c) the six further offences on the form 1, to be taken into account on count 4 on the second indictment, were four further offences of aggravated breaking and entering and committing a serious indictable offence (stealing) contrary to s 112(2); an attempt to commit that offence and an offence of aggravated breaking and entering with intent contrary to s 113(2) of the Crimes Act. 4The judge imposed an aggregate sentence of imprisonment for 16 years with a non-parole period of 10 years. His Honour indicated the sentences he would have imposed had an aggregate sentence not been imposed, as required under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999. The indicative sentences were as follows: (a) for each of the s 112(2) offences at trial, a sentence of imprisonment for 5 years with a non-parole period of 3 years and 9 months; (b) for the s 112(2) offences on the second indictment (to which the applicant pleaded guilty), allowing a discount of 10 per cent for the utilitarian value of the plea, a sentence of imprisonment for 4 years and 6 months with a non-parole period of 3 years and 9 months; (c) for count 4 on the second indictment (on which the judge took into account the matters on the form 1), a sentence of 5 years imprisonment and a non-parole period of 3 years and 9 months; (d) for the offence against s 188, a fixed term of imprisonment for 2 years; (e) for the offences under s 113(2), a fixed term of 4 years imprisonment. 5It is not necessary to recite the detail of the circumstances of the offences. In summary the applicant, together with various combinations of his co-offenders, broke into a number of commercial premises. Entry was effected in each instance by cutting chain wire fences or other surrounding fences, boring a hole in the door of the premises using a round or square drill bit, opening the door and entering the premises and stealing. Each of the offences was committed at night when the premises were closed. At no point was any member of the public confronted or harmed. The items stolen ranged from cigarettes, electrical goods including Ipads and Iphones and in one instance golf clubs. The offenders wore disguises and covered their hands so as to leave no DNA or fingerprints. The judge found that the offences were carried out in an efficient and clearly organised fashion. 6Two of the applicant's co-offenders were Velco Kostovski and Blagoya Nikolovski. They were arrested while committing an offence which did not involve the applicant. They agreed to give evidence against him and at least Kostovski did so at the trial. Their assistance to law enforcement authorities in that and other respects, together with their pleas entered at the earliest opportunity, resulted in their being allowed a combined discount of 50 per cent to their sentences. 7Kostovksi and Nikolovski were sentenced by Berman DCJ before the applicant's trial. His Honour undertook a careful analysis of the seriousness of their offending, noting that, within the range of offences liable to be charged under s 112(2) of the Crimes Act (breaking and entering and committing a serious indictable offence), the offence of stealing is one of the less serious forms of "serious indictable offence" which could constitute that element of the offence. His Honour noted that the section could also apply to a person who committed an offence of breaking and entering a house and committing aggravated sexual assault. His Honour also noted that, whereas the circumstance of aggravation in the present case was the fact that the offenders were in company, there are other more serious forms of aggravation (such as the infliction of actual bodily harm). 8In sentencing the applicant, Finnane DCJ adopted that analysis. His Honour regarded the offences as being serious but said that none of them could be regarded as a mid-range offence. He noted that all of the offences occurred at night time after the premises were shut and that no person was present to be threatened. They were commercial premises, not the home of any person and the purpose of the invasion of the property in each case was the stealing of goods "and nothing else". His Honour noted that the offences did not involve any wanton destruction of property, as sometimes occurs in offences of this nature. The only harm done to the premises was that necessary to effect entry. 9The applicant relies on the following four grounds of appeal: (1)The sentence imposed was too severe. (2)In sentencing the applicant, his Honour erred in failing to take into proper consideration the applicant's intellectual disability. (3)His Honour erred in finding that the applicant was the mastermind behind the offences and sentencing him as the principal offender. (4)His Honour erred in not properly applying the principles of parity in sentencing. 10Dealing first with ground 2, there were two expert reports before the sentencing judge dealing with the issue of the applicant's intellectual disability. The applicant was first assessed by a neuropsychologist, Dr Susan Pullman. In a report dated 8 March 2011 (exhibit 1 in the proceedings on sentence), she recorded the applicant's presentation as an anxious and softly spoken gentleman. She said that although he was polite, he became easily fatigued during the assessment. Aspects of his behaviour were unusual, prompting her to suggest review by a forensic psychiatrist. 11Dr Pullman recorded the applicant's history of an unhappy childhood. His parents separated when he was three or four. Initially, his father had custody of him and his brother. His father drank heavily and was very violent towards the children, prompting the older brother to run away from home, leaving the applicant alone with the abusive father. Ultimately the applicant also returned to his mother's custody. 12Dr Pullman conducted a number of intelligence tests. The tests showed that the applicant has significantly impaired language skills. She stated that his ability to read is "very poor". There was a marked difference between his verbal comprehension skills and his "perceptual (non-verbal) reasoning skills" which she described as clinically abnormal. Dr Pullman expressed the opinion that this would have contributed to marked learning difficulties at school, reduced the applicant's ability to socialise and prevented him from securing vocational opportunities. She said "individuals with such limited verbal skills can be vulnerable and easily influenced by others". 13In accordance with Dr Pullman's recommendation, the applicant was then assessed by a psychiatrist, Dr Olav Nielssen. In his report dated 23 March 2012 (exhibit 3), Dr Nielssen recorded the applicant's account of his involvement in the offences. The applicant told Dr Nielssen that Mr Kostovski had told the police that the applicant was the organiser of the offences. Dr Nielssen recorded: "However he said that Mr Kostovski was the person who knew what to do and planned all of the offences. He said that he had been taken along to help and that Mr Kostovski's uncle, Bobby Nikolovski was "always there". He said that the other person named in the indictment, Matthew Brady, was his former next door neighbour who he had introduced to Mr Kostovski." 14Dr Nielssen stated his diagnoses of the applicant as follows: alcohol abuse disorder; dysthymic disorder (chronic low-grade depression); possible underlying psychotic illness and low normal or sub-normal intelligence (based on Dr Pullman's tests as confirmed by his own assessment). 15In respect of the applicant's intellectual disability, Dr Nielssen said that there was no issue as to the applicant's fitness to enter a plea and that he was not found to have a mental illness or condition that prevented him from recognising that what he was doing was wrong. Dr Nielssen noted, however, that the history obtained, the applicant's presentation during the assessment and the result of Dr Pullman's testing, corroborated by information obtained from the applicant's brother, suggested that the applicant "would not have been able to commit these offences on his own". Dr Nielssen thought those factors supported the applicant's account of being drawn into assisting in committing the offences through his association with Mr Kostovski. 16The applicant complains in ground 2 that the sentencing judge failed to take into proper consideration the applicant's intellectual disability. It is trite to observe that the "proper" consideration to be given to any factor in sentencing an offender is not to be determined by reference to the weight the appellate court would itself have given to that factor. A ground of appeal that adopts terms of indeterminate reference such as "proper" consideration or "due" weight must not obscure the need to establish error in the exercise of the sentencing judge's discretion. 17The judge referred to Dr Nielssen's findings, including the fact that the finding as to the applicant's low normal or sub-normal intelligence was based on the findings of Dr Pullman. The applicant complained that the judge was dismissive of Dr Pullman's findings in his mere reference to her as a "psychologist". I do not think the words chosen by the judge reveal a dismissive approach. 18After considering Dr Pullman's findings, the judge said: "I find it difficult to be certain about that matter at all, since it is clear he is capable of planning and executing, with some degree of precision, burglaries of commercial premises. It would seem improbable to me that somebody of low intelligence would be able to do that." 19The degree of scepticism with which medical opinions of the kind carefully articulated by Dr Pullman and Dr Nielssen will be assessed will undoubtedly vary from judge to judge. The conclusion expressed by his Honour is not the one I would have reached, but it cannot be said that it was not open to his Honour. His Honour heard all of the evidence at the trial, which is not before this Court. Accordingly, I am of the view that ground 2 must be rejected. 20Ground 3 alleges that the sentencing judge erred in finding that the applicant was the mastermind behind the offences and in sentencing him as the principal offender. 21That is a paraphrase of what his Honour said. As already noted, Mr Kostovski gave evidence at the applicant's trial but there is nothing in the remarks on sentence to suggest that his Honour relied on that evidence in his assessment of their respective culpability for the offences. Rather, his Honour appears to have relied in this context on the remarks of Berman DCJ in sentencing the co-offenders. His Honour said: "The co-offenders, as I have said, were dealt with by Judge Berman. It is perfectly plain to me, from reading the sentences of Judge Berman, that the evidence put before him was to the effect that this man was the man who planned and executed these burglaries and recruited the others to be with him." 22Having read the remarks of Berman DCJ in respect of each of the co-offenders, I am unable to see how Finnane DCJ reached that conclusion. Certainly, the remarks relating to the co-offender Brady record the fact that it was the applicant who recruited him. However, there is nothing in the remarks of Berman DCJ to suggest that it was the applicant who recruited Kostovski and Nikolovski, or that he was the one who planned and executed the burglaries. 23On the contrary, the remarks of Berman DCJ in sentencing Kostovski and Nikolovski appear to characterise Kostovski as the person who played the most serious role in the offending, with barely a mention of Ilievski. Kostovski is Nikolovski's nephew. Each agreed to give evidence against Ilievski. They were sentenced at the same time, in December 2010. Each received a combined discount of 50 per cent for assistance to law enforcement authorities and their early pleas of guilty. Berman DCJ's judgment is appropriately cryptic as to the assistance given but it appears to have extended well beyond the agreement to give evidence against Ilievski. 24Berman DCJ expressly noted that, although Nikolovski was older, Kostovski was "much more heavily involved than his uncle". A policeman gave evidence (presumably at the proceedings on sentence) that Nikolovski was a minor player who only became involved in the offending at the request of his nephew. His Honour noted that Kostovski had "problems with drugs and gambling, both activities which require significant sums of money." Kostovski had also become "responsible" for a debt owed by one of his friends. He told Probation and Parole and a psychiatrist that "it was this debt combined with his drug use and gambling problems which played a significant part in the commission of these offences." He does not appear to have complained to either that he became involved at the behest of Ilievski, nor credited him with being the mastermind. There is no reference in the remarks to any evidence put before Berman DCJ to the effect that Ilievski "was the man who planned and executed these burglaries". There is no reference to his having recruited Kostovski or taken any greater role than Kostovski. 25Brady was sentenced by Berman DCJ almost a year later, in November 2011. His Honour was evidently very moved by Brady's personal circumstances: his childhood was simply tragic. He had no prior convictions and had been led into trouble by Ilievski at a time of extreme vulnerability. Those are the only remarks of Berman DCJ to suggest that Ilievski was a principal in the enterprise. 26Brady did not provide assistance to authorities. He pleaded guilty late and received a discount of 10 per cent for the utilitarian value of the plea. He was sentenced for 5 offences of aggravated breaking, entering and stealing contrary to s 112(2) and had a further 5 "broadly similar offences" taken into account on a form 1. Berman DCJ was reluctant to sentence him to a term of imprisonment having regard to his extremely sad childhood and his history of good employment but considered that was what the offending required. His overall sentence was imprisonment for 3 years, suggesting a starting point of about 3 years and 4 months. With the benefit of a finding of special circumstances, he was given a non-parole period of 2 years. 27In my view, all that can be gleaned from the remarks of Berman DCJ as to the relative offending of Ilievski and Kostovski is that each was heavily involved in ongoing, serious offending. Ilievski recruited Brady; Kostovski recruited Nikolovski. There is nothing in his Honour's remarks to warrant the conclusion that Ilievski was the ringleader or the organiser so far as Kostovski was concerned. 28Nikolovski received an overall sentence of imprisonment for 5 years, suggesting a starting point of 10 years. With the benefit of a finding of special circumstances, he was given a non-parole period of 2 years and 6 months (a ratio of 50 per cent). 29Kostovski apparently committed a total of 25 offences of aggravated breaking, entering and stealing contrary to s 112(2). There were 6 offences under that section on the indictment and a further 19 "similar matters" on a form 1. The total retail value of the items he stole was over $600,000. His overall sentence was imprisonment for 6 years and 6 months, suggesting a starting point of 13 years. With the benefit of a finding of special circumstances, he was given a non-parole period of 4 years (a ratio of just over 60 per cent). 30Ilievski was sentenced for 19 offences, 13 on indictment (11 of which were committed with Kostovski) and 6 on a form 1. Fifteen were charges under s 112(2). The remaining four were offences of aggravated breaking and entering with intent to steal contrary to s 113(2), which is a lesser offence, carrying a maximum of 14 years. Although it is not recorded in the remarks of Finnane DCJ, it was stated in the proceedings on sentence that the value of the property taken in Ilievski's offending was just under $400,000. The earliest offence in the case of both Kostovski and Ilievski was 7 July 2009, suggesting that they each committed their first offence together. Each had a number of serious prior convictions. 31In sentencing Ilievski, Finnane DCJ said "the overall criminality is very similar for all of them, except that, in my opinion, the evidence shows that the offender was the one who was the organiser." The only reference to evidence elsewhere in his Honour's remarks is to the evidence he thought was put before Berman DCJ. His Honour makes no reference to evidence given by Kostovski at the trial. Yet Ilievski received a sentence 3 years higher than the starting point for Kostovski, who committed more offences and whose offending involved $200,000 more in the value of the property stolen. 32If the only basis for the finding that Ilievski was the ringleader was what Finnane DCJ derived from the remarks of Berman DCJ, in my view the finding was plainly not open. As already noted, his Honour did not suggest that the finding was based on any evidence given in the trial of Ilievski. However, I am mindful of the fact that his Honour's remarks were given ex tempore. In case I have misunderstood the basis of the finding, I would indicate that, in any event, I consider the sentence imposed was manifestly excessive in all the circumstances. 33I am further of the view that the applicant is entitled to feel a legitimate sense of grievance when the sentence imposed on him is compared with that imposed on Kostovski. Even if Ilievski was in some respect an organiser of the group, Kostovski committed more offences (obviously without Ilievski) and stole items of considerably greater value ($200,000 more). There does not appear to be any basis for passing an even sterner sentence on Ilievski than was reflected in the stern starting point identified by Berman DCJ before his Honour allowed Kostovski a combined discount of 50 per cent. In my view, the totality of Ilievski's offending was plainly less serious than that of Kostovski. 34For all of those reasons, I am of the view that the appeal should be allowed and a lesser sentence passed. 35A further report of Dr Olav Neilssen was obtained to be relied upon in the event of re-sentence. The report shows that the applicant is suffering considerably in gaol, for two well-documented medical reasons. One is that he suffers from diabetes, which is difficult to manage in custody. That has resulted in his physical health deteriorating quite dramatically. The progression of the disease and the difficulty of managing it have in turn exacerbated the applicant's depression, despite anti-depressant medication. 36I would accept the indicative sentences stated by Finnane DCJ as being appropriate. Taking into account all of the factors to which I have referred throughout this judgment, I consider that the applicant should be re-sentenced to an aggregate sentence of imprisonment for 10 years. His plain need for supervision combined with his poor state of physical and mental health in my view warrant a substantial departure from the statutory ratio of the non-parole period to the balance of term. I would fix a non-parole period of 6 years. 37The orders I propose are: (1)that leave to appeal be granted; (2)that the appeal be allowed; (3)that the sentence passed at first instance be quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole period of 6 years commencing on 12 April 2012 and expiring on 11 April 2018 and a balance of term of 4 years expiring on 11 April 2022. 38On that basis, the applicant would be eligible for parole upon the expiration of his non-parole period on 11 April 2018. 39GARLING J: I agree with McCallum J. 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: 31 December 2014