Subjective circumstances
81The offender was born on 19th June 1986. He was 25 at the date of his offending and is now 28.
82He was educated to Higher School Certificate level and played rugby and water-polo at school. He has not received any tertiary education. Since leaving school he has worked in the construction industry and at times managing a bar. He is unmarried and has no dependent children.
83His local criminal record is not such as to cause concern for present purposes. There is one offence of supplying a prohibited drug when he was 17 years of age for which he received a bond. The few other matters are of no moment. He has never been convicted in New South Wales of a crime of violence.
84Of more concern is a conviction for kidnapping in New Zealand in 2006 when he was 20. He went to New Zealand with a friend whose wife had left him. They were there for four days when they kidnapped the man with whom the wife was living. The offender was instrumental in this. As I have said, he is a very tall, strongly built young man. He approached the victim in the garage of his home and "asked" him to come with him to talk to the husband. He guided the victim to the car where the husband was waiting by placing his right hand on the victim's left shoulder. He put the victim in the back seat of the car and sat there beside him. The victim was then driven to another address. When the offender left the premises to obtain food, the husband bound the victims hands. Upon the offender's return he cut the bindings from the victim with a Stanley knife, accidentally cutting his hand. I infer that the offender persuaded the husband to release the victim and they then drove him to a nearby taxi stand, dropped him off and offered him money for the cab. The offender was sentenced to a term of imprisonment of three years. The kidnapping offence involved no overt violence. The period of detention of the victim was relatively short, being around one and a half hours, but doubtless he would have been very afraid. The worrying aspect of that offending for present purposes is, like the present case, it involves the offender seeking to settle disputes by taking the law into his own hands. This evinces an attitude of disregard for the law.
85I received a pre-sentence report which has been amended since the details of the offender's New Zealand conviction have been obtained. Knowledge of that matter has not caused the author of the report to alter the opinions originally expressed. The offender gave a history of the offending broadly consistent with his evidence at the Trial. This involves adherence to the view that he acted in self-defence which I have said more than once I am constrained to reject. He has been assessed as at a low/medium risk of re-offending. No matters requiring rehabilitation whilst in custody were identified. He might benefit from a violent offender's program. The author of the report expressed the view that he was unlikely to benefit from any extended period of supervision by Corrective Services on release.
86I have received a report of Dr Olav Nielssen which, by leave, was later amended and is now dated 29th May 2014. Once again, the offender gave Dr Nielssen a history of the offending consistent with his evidence at the trial. Once again, I must reject that account. Dr Nielssen was of the view that he suffered from no psychiatric disorder nor was there any form of developmental delay, learning disorder, brain injury, psychotic illness or severe mood disorder. His level of substance abuse was not considered sufficient to justify the diagnosis of a disorder. Dr Nielssen points out that "homicide recidivism is rare".
87When giving evidence, the offender was asked about how he felt about the fact that he killed Todorovski. He said:
I'm really sorry for it. I'm terrified, I really didn't want this to happen [956.45T].
He told the community corrections officer that he was shattered and upset that Todorovski had died. He spoke to Dr Nielssen of "his sadness at having caused... Todorovski's death". I am not satisfied on the balance of probabilities that these expressions of regret constitute evidence of remorse. Remorse normally involves acknowledgment of guilt, an acceptance of responsibility for one's own actions, and the demonstration of a determination to change. None of these things can be persuasively shown whilst the offender, effectively, maintains his innocence on the basis of the self-defence the jury have rejected.
88The rejection by the jury of self-defence and provocation "does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent, of the factual basis upon which they rested. If a sentencing judge is satisfied from the credible evidence in a case that there was a degree of provocation, he may taken it into account as a mitigating factor". (R v Bell (1985) 2 NSWLR 466 at 485 per Lee J; R v Heffernan [2005] NSWSC 739 per Hoeben J (as his Honour then was)).
89From the jury's verdict, and facts as I find them to be, I am not satisfied that the offender acted in any way in self-defence. However, I accept, as the Crown concede, that there was a degree of provocation offered by Todorovski in setting his henchmen upon the offender and in joining in the attack and I will take that factor into account by way of mitigation to a degree.
90A number of character references were tendered from family, friends and neighbours, all of whom appear to be persons of good character who spoke highly of what they knew of the offender's character. Amongst them was the Muslim chaplain from Corrective Services, who informed me that the offender regularly attends chapel and speaks with him. He has impressed the chaplain as a man who is sincere in his eagerness to live life according to the teachings of his faith.
91The offender's sister spoke of him as a gentle giant who was non confrontational and reserved. He has helped with her children following the death of her first husband and her divorce from her second. He expressed to her his deep regret for getting dragged into the confrontation. I accept that he is a contributing member of the family, but his sister's assessment about what happened, and why, is different from mine.
92A neighbour, whose disabled child the offender has assisted and otherwise shown kindness to, spoke of him as very gentle and kind. She said the offending was completely out of character. A family friend who is in business said the offender was of good repute in his local neighbourhood. Again, however, the remorse the offender has expressed to this referee is couched in the language of justification by reason of self-defence. He described him as a very good person with a soft heart.
93A former girlfriend described him as loyal and respectful and as showing patience, kindness and love to her son. Again, her view of things is affected by her unreserved acceptance that the offender acted in self-defence.
94Other supporters also speak highly of the offender and describe him as gentle. They say that violence or aggression is alien to his character. Again, however, the weight that can be given to these statements is reduced by the firm, and no doubt genuine, belief of the supporters that the offender must have acted in self-defence.
95The New Zealand offending; the reduced weight to which the references are entitled because they proceed on an erroneous view of the facts; and the offender's engagement in the fight of 12th December 2011, taken together make it difficult to accept unreservedly that the offender was a person of good character. There is no doubt he enjoyed a good reputation amongst his family, friends and neighbours.
96I accept the evidence of the Community Corrections Officer and Dr Nielssen. This suggests that he is unlikely to commit a similar offence in the future. However, the propensity to take the law into his own hands remains a concern. This somewhat reduces what otherwise appears to be his good prospects of rehabilitation.
97I am asked to consider imposing a lesser penalty than I otherwise would, by having regard to the degree to which the administration of justice has been facilitated by the defence within the meaning of s 22A Crimes (Sentencing Procedure Act) 1999 (NSW) (Sentencing Act).
98When the matter was first mentioned before me on 7th February 2014, Mr Dalton of Senior Counsel informed me that there would be no issue that the offender shot and killed Todorovski. The only issue would be that he did so in self defence. In this regard, I understood that the offender would admit that in shooting Todorovski he intended to inflict really serious personal injury,not necessarily to kill him. The Trial was run on this single issue of self-defence only. Moreover, the defence attempted to further reduce necessary hearing time by seeking agreement on the facts that could be proved by the expert witnesses (see R v Abdallah (No. 3) [2014] NSWSC 267). The learned Crown Prosecutor exercised his right not to agree to this course, even though the ballistic experts reached agreement between themselves. The defence's offer in this regard, if accepted, would have reduced the time taken up by the Trial. The concessions made and accepted were valuable in as much as they eliminated the need for the Crown to identify the offender as the killer and would otherwise have reduced the length and complexity of the trial. Notwithstanding these concessions, the Crown was entitled to attempt to prove the higher level of culpability involved in an intention to kill. However, the degree to which the administration of justice has been facilitated should be recognised and I will take it into account when fixing the sentence.