R v Alex Niceski [2005] ACTSC 63 (1 July 2005)

Last Updated: 11 August 2005

THE QUEEN v ALEX NICESKI [2005] ACTSC 63 (1 July 2005)

EX TEMPORE JUDGMENT

No SCC 151 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 1 July 2005

IN THE SUPREME COURT OF THE )

) No SCC 151 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ALEX NICESKI

FURTHER REMARKS ON SENTENCE AFTER ADJOURNMENT

Judge: Crispin J

Date: 1 July 2005

Place: Canberra

1. As I said in my earlier sentencing remarks on 3 March 2005, my initial concerns related primarily to what appeared to be a lack of remorse and a lack of empathy for the plight of the victim.

2. In all of the circumstances, it seemed to me to be appropriate to adjourn the sentencing proceedings to enable him to attend an anger management program and to enable Mr Beaver, the probation and parole officer assigned to this case, time to make a further assessment of him. Mr Beaver has now provided an updated pre-sentence report which confirms that he has further discussed with Mr Niceski his reaction to the assault which he committed. Mr  Beaver has expressed the opinion that further and more detailed discussions with him have revealed an ever increasing level of empathy for his victim as well as remorse for his actions in November 2003.

3. Significantly, Mr Beaver also expresses the opinion that, despite his initial reservations about Mr Niceski's level of remorse and empathy for the victim, he had nonetheless assessed him as being at a low risk of recidivism. Following further discussions with Mr Niceski, he has re-assessed that aspect and has concluded that the risk has been further reduced and may now be regarded as being at a minimal level.

4. For the reasons that have previously been given as well as the ones that I have indicated this morning in these brief remarks, I think it is appropriate to accede to the submissions that have been put by counsel both for the Crown and the prisoner. Consequently, I intend to impose a sentence which will mark the gravity of the offence which he has committed and send, hopefully, a signal to the community that serious offences of violence will not be tolerated. However, having regard to the previous good character of Mr Niceski, the level of provocation that precipitated the conduct on this occasion, the remorse which he has now displayed, his apparently conscientious and willing participation in an anger management course to address the issues that led to this incident, and the clear evidence that any risk of further conduct of this kind from him can be dismissed as minimal, I propose to order that the sentence be suspended subject to conditions.

5. Will you stand please, Mr Niceski. I sentence you to a term of 2 years' imprisonment. I order that that sentence be immediately suspended, upon the condition that you enter into a recognizance your self in the sum of $1000 for a period of three years. It will be a condition of that recognizance that you accept the supervision of the Director of ACT Corrective Services as he may think appropriate.

6. Mr Niceski, you seem to have done very well and I accept that you were goaded to the point where you snapped on this occasion but it was a very serious incident and you are a very big man. If you were to lose it again like this, the risks for you as well as for any victim could be very grave. So you are really going to have to make sure that you take steps to look after yourself emotionally and make quite sure that you retain control. But if you get into a situation where you are being goaded in a pub again, you need to walk out the door.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 27 July 2005

Counsel for the accused: Mr A Doig

Solicitor for the accused: Abbott Tout Lawyers

Counsel for the Crown: Mr C Todd

Solicitor for the Crown: ACT Director of Public Prosecutions

Date of hearing 1 July 2005

Date of judgment 1 July 2005