Supreme Court New South Wales Medium Neutral Citation: R v Robert Nikolovski [2018] NSWSC 1147 Hearing dates: 20 July 2018 Decision date: 25 July 2018 Jurisdiction: Common Law Before: Latham J Decision: The offender, Robert Nikolovski, is convicted of the offence of murder. He is sentenced to a non-parole period of 20 years, to date from 7 December 2017, expiring 6 December 2037, with a balance of term of 13 years, expiring 6 December 2050. Catchwords: CRIMINAL LAW – sentencing – murder – organised and supplied gun used in shooting – victim shot in public street – vigilante response to brother's death – murder planned – upper range of objective gravity – subjective circumstances – mental illness Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1) Cases Cited: Aslan v R [2014] NSWCCA 114 Barlow v R [2008] NSWCCA 96 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324 R v Dole; R v Nguyen [2010] NSWCCA 101 R v Lulham [2016] NSWCCA 287 R v Rayment [2010] NSWCCA 85; 200 A Crim R 48, Category: Sentence Parties: The Queen Robert Nikolovski Representation: Counsel: Mr R Cooley (Crown) Dr GD Woods QC (Offender) Solicitors: NSW Director of Public Prosecutions (Crown) Katsoolis & Co (Offender) File Number(s): 2014/274295 Publication restriction: Nil sentence 1. The offender, Robert Nikolovski, was found guilty by a jury on 6 July 2018 of the murder of Darko Janceski on 14 April 2012. That offence carries a maximum penalty of life imprisonment and, in the event that a determinate sentence is imposed, a standard non-parole period of 20 years. The offender was found guilty on the basis that he encouraged and assisted Matthew Wiggins to carry out the murder, in that he supplied the gun that was used in the shooting. 2. Before passing to a consideration of the factors relevant to sentence, on behalf of the community, I acknowledge and appreciate the profound impact that this offence has had upon the parents of the deceased. Losing an only son in such violent circumstances, and bearing witness to his passing, is a tragic and horrifying experience which will always be with them. 3. The circumstances leading up to the offence are as follows. On 31 October 2011, the offender's brother, Goran Nikolovski disappeared. Three days later, Goran Nikolovski's burnt out car was found by police and from that time it has been presumed that Goran Nikolovski is dead. Despite a lengthy police investigation, no trace of Goran Nikolovski has been found and no-one has been charged with his murder. The offender and his associates, including Matthew Wiggins, became convinced however that Darko Janceski was responsible for Goran Nikolovski's disappearance and death. That belief arose as early as 5 November 2011, when Mr Janceski's house was destroyed by fire in circumstances that suggested it was deliberately lit. 4. That much is uncontroversial and was largely common ground at trial. The facts related below for the purposes of sentence are those that are consistent with the verdict of the jury and which I would in any event find proved beyond reasonable doubt. 5. Throughout November and December 2011, the offender, Matthew Wiggins and others, discussed Mr Janceski's role in the death of Goran Nikolovski and their dissatisfaction with the progress of the police investigation. The bulk of the telephone intercept material at trial involved the offender, Matthew Wiggins, and Ms Geldeard (Goran's partner). Certain members of the Comancheros motorcycle gang figured in these conversations, owing to the fact that the victim was also in dispute with that organisation. Ultimately, the offender and Matthew Wiggins decided to take revenge on Mr Janceski. The plan to do so took shape in early 2012 and was realised by the discharge of a firearm, supplied by the offender, at close range by Matthew Wiggins, shortly after 5pm on 14 April 2012, as Mr Janceski stood in the front yard of his parent's home, where he was then living. 6. The gun used in the shooting had been imported from the United States and had never been licensed in New South Wales. It was not on the Australian national firearms licence and registration system. This information was derived from the reconstruction of the serial number on the gun, which someone had attempted to remove. 7. The offender engaged in a degree of planning in order to ensure that the murder would be committed and that he would escape prosecution for his part in it. The offender must have gone to some lengths to obtain an untraceable firearm. He and Matthew Wiggins were aware that the intended victim was hospitalised in early 2012 and that police were watching the offender closely in anticipation of a revenge attack. The offender seemingly convinced the victim that he had nothing to fear from the offender, when the victim rang the offender to complain about rumours on the street that the offender held him responsible for his brother's death. The offender must have been aware of, if not partly responsible for, the day and time chosen for the shooting, and ensured that he would have an alibi available on that day. Support for these findings comes from telephone intercepts and from the evidence of prison informer witnesses at trial, to whom the offender made admissions which the jury patently accepted. 8. Matthew Wiggins rode up on a motorbike and discharged the gun seven times, striking the victim three times and fatally wounding him. Before he could make good his escape, the victim's father came from the house, accosted Mr Wiggins and took the firearm from him. In the course of the struggle, Mr Wiggins' sunglasses and helmet were knocked from his head and left at the scene. The offender stated to one of the informer witnesses that "it was the perfect plan" but for the father's intervention and the gun being left behind. The offender also stated that he had "organised the whole thing." I am satisfied beyond reasonable doubt that the offender was involved in deciding upon the timing and the methodology for the shooting of Mr Janceski, even if the Crown case was unable to establish the offender's direct participation in the circumstances surrounding the purchase and disposal of the motorbike which Mr Wiggins used in the commission of the offence. I reject the submission that the offender was not involved in organising the offence, but was merely generally aware of what Mr Wiggins was doing. 9. The submission that there is no evidence upon which it might be determined that the offender instigated the commission of the offence is accepted, however I note the assessment of objective gravity is founded upon what is known and established by the evidence, not by what is not known. 10. It will be obvious from these facts that the offender participated in the planning and execution of a murder to avenge his brother's death. It was an audacious and calculated murder that is objectively among the more serious examples of this offence known to the law. The victim's reputation, his criminal associates and his alleged responsibility for the death of Goran Nikolovski are entirely irrelevant for these purposes. On the contrary, general deterrence and the importance of upholding the rule of law demand that vigilante responses of this type receive condign punishment. Every life is entitled to the protection and recognition of the law. The offender's motive for the commission of such a serious offence cannot ameliorate its objective gravity: Barlow v R [2008] NSWCCA 96; R v Rayment [2010] NSWCCA 85; 200 A Crim R 48, at [106] – [108]; R v Dole; R v Nguyen [2010] NSWCCA 101. It may, however, reduce the emphasis to be placed upon specific deterrence for the purposes of the sentencing exercise. 11. The offender's submission that the murder was a crime of passion as opposed to a cold blooded execution does not altogether accord with the objective circumstances of the offence. Whilst I do not doubt that the offender was grief stricken over the loss of his brother and that his conduct, exhibited through the intercept material, demonstrated a highly emotionally charged individual, the offender's actions in sourcing the weapon, in allaying Mr Janceski's concerns, and ensuring that the offender was observed elsewhere at the time of the shooting are not the actions of a man acting in the heat of the moment, precipitously or irrationally. Five months elapsed before the commission of a carefully orchestrated killing to avenge the death of his brother. To the extent that the submission seeks to distinguish this offence from a contract killing purely for financial gain, I accept that to be the case. 12. There is another feature of the offence that bears upon its objective gravity. The offender must have been aware that the firearm would be discharged in the late afternoon in a public street, where its residents were going about their daily business. Indeed, a number of those residents witnessed the shooting from their premises and gave evidence during the trial. The implicit threat to public safety was obvious. Entirely innocent people were potentially at risk of serious injury or death. 13. For the sake of clarity, I decline to treat the commission of the offence at the victim's home as an aggravating factor. Whilst it would be permissible in my view to do so (see R v Lulham [2016] NSWCCA 287), the factors relating to the commission of the offence to which I have already referred implicitly incorporate that aspect of the offending. I am not persuaded that the offence qualifies as an example of "planned and organised criminal activity", as that aggravating circumstance is conventionally understood. The offence was committed as an act of personal revenge, albeit it required a degree of planning. 14. The offender's Senior Counsel submitted that the offender's moral culpability for the offence is reduced by virtue of the onset of a depressive illness in 2010, which persisted over the course of the ensuing years. In particular, the submission maintained that around the time of the commission of the offence, that is, early 2012, the offender's judgment was impaired by his anxiety and distress brought on by his brother's disappearance and death, and the resultant exacerbation of his depressive illness. Reliance for this submission is placed upon the report of Dr Pakula, psychiatrist, who has treated the offender from 2010 to the present time (Exhibit 1). Dr Pakula did not give evidence, nor did the offender. 15. The offender first consulted Dr Pakula on 9 March 2010, at which time the offender attributed his depression to his time in custody and to a break up of a relationship shortly after his release from gaol. The only full time custodial sentence served by the offender was between 19 May 2007 and 18 July 2008, some twenty months before he saw Dr Pakula. The offender had received counselling on his release from gaol and had received one psychiatric assessment that resulted in a prescribed anti-depressant, but he ceased taking that medication six months before seeing Dr Pakula. Dr Pakula prescribed another antidepressant. 16. The offender consulted Dr Pakula again on 21 April 2010. The next two consultations were on 21 November 2011 and 16 January 2012. Thereafter, the offender consulted Dr Pakula in October and November 2013, November and December 2014, May 2016, February, March and September of 2017, and February 2018. 17. Dr Pakula notes that during the 2011 consultation, the offender was "far more agitated and anxious and he was distressed at the recent events related to his brother Goran being missing." The offender's antidepressant medication was changed and the dosage increased. 18. Dr Pakula's diagnosis was that the offender has a Major Depressive Disorder, which was exacerbated when his brother went missing, and that "for many months he remained agitated and anxious and distressed." 19. Dr Pakula was asked for his opinion regarding the offender's "capacity to make proper and sensible judgments about important matters" around the time of the murder, namely, 14 April 2012. Dr Pakula responded that "Robert was assessed by myself around that time as being quite depressed. … It was very likely that at around the time of the murder … he would have had difficulty making proper and sensible judgments about important matters." 20. The only relevant assessment to which Dr Pakula could be referring as "around the time of the murder" is the consultation in mid-January 2012, three months before the murder. The evidence is silent on the offender's progress or otherwise after Dr Pakula adjusted the offender's medication in late November 2011 to take account of the offender's heightened anxiety and distress, other than a generalised view that "for many months" after November 2011 the offender remained agitated, anxious and distressed. 21. The principles that apply when an offender is suffering from a mental illness as summarised in Director of Public Prosecutions (Cth) v De La Rosa ("De La Rosa") [2010] NSWCCA 194; (2010) 273 ALR 324 at [177] (McClellan CJ at CL) are:- 177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiaras [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaras at 400; Jiminez at [25]; Israil at [26]; Henry at [28].● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. 1. The following observation by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [34] is also apposite:- 34 It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. 1. Accepting for present purposes that the offender's anxiety and distress prevailed for six months, from November 2011 through to April 2012, it is not clear how the offender's depression contributed to the commission of the offence in a material way. Dr Pakula's report does not articulate how or why the offender's capacity to make a "proper and sensible judgment" concerning the sourcing and supply of an unregistered firearm, by way of encouraging and assisting another to commit murder, would have been compromised by a depressive disorder. Even assuming that the offender found it difficult to focus or concentrate or make decisions, given time and an overriding desire for revenge he was capable of doing so, and of fully appreciating the consequences of those decisions. The offender's judgment was not relevantly impaired, rather his distress over his brother's death fuelled his anger towards the person he held responsible for it. 2. I am not persuaded on the balance of probabilities that the offender's moral culpability is reduced or that he is not a suitable vehicle for general deterrence. I have already remarked on the importance of general deterrence in cases of vigilante killings. I do not however regard the offender's culpability as so extreme that the offence warrants the imposition of a life sentence; s 61(1) Crimes (Sentencing Procedure) Act 1999 (NSW). I do not accept the submission that the offence is at or below the mid-range of objective gravity. I would assess the objective gravity to be above the mid-range. 3. I accept that a lengthy term of imprisonment will be more onerous, owing to his depressive illness, and that he will require treatment for his condition in custody. On that basis, a finding of special circumstances is warranted, such that some alteration in the statutory proportion between the head sentence and non-parole period is appropriate. I do not regard specific deterrence as an important factor in the sentencing exercise, nor do I regard the offender as a danger to the community. 4. The offender was sentenced in February 2012 at Wollongong Local Court to six months' imprisonment for an offence of affray, committed on 30 June 2011. He appealed against the sentence. On 23 March 2012, the District Court at Wollongong suspended that six month term of imprisonment, conditional upon the offender entering a bond. It follows that the offender entered the bond three weeks before Mr Janceski was killed. The commission of this offence whilst on conditional liberty is an aggravating factor to be taken into account for the purpose of sentencing. It does not assist the offender in terms of his prospects of rehabilitation. 5. Those prospects are frankly acknowledged by his Senior Counsel as "guarded". The offender has always had, and continues to have, the support of his family. 6. The offender is presently 44 years of age. He was born and raised in the Wollongong area. His parents are divorced. The offender describes his childhood as unhappy and his relationship with his father as poor. He lives at home with his mother who qualified as a solicitor at a mature age and operates her own practice. The offender left school after Year 10 and has never been in full employment. It appears that he has devoted his time to his physical fitness and regularly attends gyms in the Wollongong area. His nickname "Boxer Rob" is a product of his skills in this domain. 7. The offender's criminal history in part reflects his readiness to prove his pugilistic ability to others with whom he comes into conflict. Since 1994, the offender has overwhelmingly received the benefit of bonds, a community service order (which he failed to perform) and periodic detention for a number of assaults, larcenies and driving offences. In 2007 a full time custodial penalty was imposed for a supply prohibited drug offence. In the light of these offences, the offender cannot be regarded as a person of prior good character. 8. There is no evidence of contrition or remorse. I accept that the offender is unlikely to commit an offence of this gravity in the future. It was the product of a desire for personal revenge in the particular circumstances of this case. 9. The offender, unsurprisingly, was subject to strict bail conditions between 18 September 2014 and 23 May 2018 when he was remanded in custody. Those conditions included a curfew and an obligation to present himself to police at the premises where he lived with his mother as and when required. In August 2016, a bail variation came before Bellew J, in the course of which it was established that police had called at the offender's home during the curfew on 231 occasions over the course of two years. Justice Bellew observed that "if one were to accept the affidavit of [the offender's] mother, it may support a conclusion that there has been some degree of harassment of [the offender] by the police." Justice Bellew imposed a condition limiting police visits to no more than three a week. 10. It is not submitted that these conditions constitute a form of quasi custody. They are conditions that are commonly imposed in cases of murder. As I understand the submission, it is contended that some allowance ought to be made for the purposes of sentence on the basis that for two of the almost four years on bail, the conditions were unduly onerous. The Crown did not oppose this submission. In those circumstances, I accept that a further slight adjustment to the non-parole period is appropriate. 11. The offender has spent 241 days in custody referable to this offence. Accordingly, the sentence will be backdated to take that pre-sentence custody into account. 12. Taking into account the objective and subjective circumstances, and mindful of the "guideposts" constituted by the maximum penalty and standard non-parole period for the offence, I have determined that the following sentence appropriately reflects the principles of general deterrence, retribution, punishment, denunciation, community protection, and rehabilitation:- 13. Robert Nikolovski, you are convicted of the offence of murder. I sentence you to a non-parole period of 20 years, to date from 7 December 2017, expiring 6 December 2037, with a balance of term of 13 years, expiring 6 December 2050. 14. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence of murder for which you have been sentenced. Your legal representatives will explain the significance of this legislation to you. ********** 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: 25 July 2018