R v Krajnovic

Sequence 3 - Cause grievous bodily harm with intent - Section 33(1)(b) of the Crimes Act 1900

1. The offences occurred in Adams Parade, Woonona on the evening of New Year's Eve 2022. On the morning of that day the co-offender arrived at a friend's home on Adams Parade occupied by Gregory Downie and Eitaro Manurere. He remained at the premises throughout the day and evening. Residing next door were Sean Petersen and Stacey Evangelou. The victim of the offence reckless wounding, Kevin Gamble, was at the residence of Petersen and Evangelou on the same evening. Later that evening the offender and Bozinov arrived at the premises of Manurere and Downie in the company of others.
2. There had been various exchanges between the parties on Adams Parade in the hours before the incidences giving rise to the relevant offences. Later that evening a "scuffle" occurred between Bozinov and Petersen which was followed shortly by the offender and Bozinov attacking Petersen.
3. The offender attempted to prevent Gamble from breaking up a scuffle between Bozinov and Petersen. He did so by swinging his arms at Gamble whilst he had a knife in his right hand and a different object in his left hand. The offender was screaming at Gamble and was calling Petersen a dog as the scuffle continued.
4. The offender then swung his right hand at the abdomen of Petersen and Gamble heard the contact make "thud" sounds. The offender then turned around and swung the items at Gamble to prevent him from intervening. Gamble was finally able to intervene and assist Petersen. As he was doing so he heard a further thud like sound. This occurred when the offender, armed with a knife, stood over Petersen's head, and stabbed the back of Petersen's head as Petersen wrestled with Bozinov.

Sequence 5 - Reckless wounding in company

1. The offender then swung a knife at Gamble, connecting with Gamble's left arm, resulting in a deep laceration. Bozinov, whilst wrestling with Petersen, managed to flip Petersen over so that Bozinov was on top of him. Gamble ultimately managed to get between the offender and Petersen and was able to push him away. Gamble then pushed Bozinov off Petersen and helped Petersen get back inside the house. As the group retreated the co-offender Buddle was involved in a further interaction with Gamble.
2. The agreed facts refer to further interactions between the co-offender and other victims. The offender and his co-offenders subsequently left the scene at different times.
3. The offender washed blood from his hands, face and the piece of wood at a tap in Adams Parade and ultimately fled. The offender later disposed of a black jacket in Woonona which was seized by police. A forensic analysis was undertaken and a mixed DNA profile was obtained from which the offender could not be excluded as a contributor.
4. The offender was arrested on 5 January 2023 and during an electronically recorded interview the offender accepted that he was involved in the melee and indeed provided a version in which he stabbed someone but claimed it was in self-defence of his co-offender.
5. Petersen underwent extensive treatment following his admission to hospital including multiple surgeries requiring admission for almost six weeks. A considerable period was spent in intensive care. An examination at the time of treatment revealed a stab wound to the right upper quadrant of the abdomen, resulting in a liver injury with active bleeding, as well as a 5 cm scalp laceration at the right posterior area. Small bone fragments were also visible from the scalp laceration. Treatment consisted of surgical intervention including a trauma laparotomy and suturing of the scalp laceration. The stabbing resulted in a significant liver injury, necessitating urgent surgical intervention to control the bleeding. During surgery a deep laceration to the liver was observed which was actively bleeding. Several days later further treatment of Petersen confirmed there was "bilious output" in the surgical drain which was subsequently confirmed. Treatment required a further laparotomy and other operative interventions. The laceration injury also implicated the gallbladder which was subsequently removed.
6. With respect to the victim Gamble, examination confirmed a deep left arm wound which was surgically treated.
7. A subsequent report of Dr David Reid stated that the victim Petersen had undergone a hernia repair which was more complicated given the injuries the result of the offending.

Victim impact statement

1. A victim impact statement was provided by Sean Petersen which referred to Mr Petersen being impacted emotionally, physically, psychologically and financially. He described the emotional and mental trauma as "overwhelming". They were looking to relocate in circumstances where they no longer felt safe in the home which they had purchased. He continued to suffer from anxiety and panic attacks and had significant distrust of others. He has ongoing night terrors and recurring dreams. Mr Petersen also referred to "severe" physical impact including scarring and the need for multiple surgeries. It resulted in the offender having to abandon his pursuit of surfing in which he had engaged for a period as a professional. It also required lengthy periods away from work which had resulted in a significant financial burden. Mr Petersen also referred to the significant impact on his family, both financially and psychiatrically.

The offender's criminal history

1. The offender has a lengthy criminal history commencing as a juvenile in 2002 with offences of contravening apprehensive domestic violence order and destroy damage property. The offending continued during the offender's adult years initially with property related offences. In 2004 the offender committed a series of offences including robbery in company. The offender's offending continued with offences including assault, take and detain for advantage and reckless wounding. Further offences included armed with intent to commit indictable offence and stalk/intimidate for which the offender was sentenced to a period of imprisonment. There were further driving offences, assaults and contravene apprehended violence orders. At the time of the offending the offender was serving a community corrections order which had been imposed in 2022 for contravening prohibition or restriction in an apprehended violence order.

Report of Anita Duffy - psychologist

1. Ms Duffy assessed the offender by way of AVL on 21 August 2023. At the time she had available the agreed facts, criminal history, and earlier psychological report.
2. The offender expressed remorse in respect to his conduct observing it was ill considered and impulsive. By way of background the offender was born in Wollongong and was the only child who separated when his parents were young. He had limited contact with his father. His mother was a heroin addict and died of a drug overdose in 2019. Both he and his mother were subjected to violence at the hands of his stepfather who was a heavy user of various illicit substances. He referred to the distress when describing the death of his mother in 2019 and his subsequent return to the home.
3. Unsurprisingly the offender attended various schools and his education was limited. He was diagnosed with ADHD in his early years. Whilst medication assisted, he still became involved in fights and experienced behavioural problems at school. He was ultimately suspended from high school and thereafter undertook various courses.
4. The offender referred to suffering head injuries sustained in fights. In 2019 he was shot in a drive-by shooting leading to symptoms of post-traumatic stress disorder. He resorted to drugs to assist. Since returning to custody following the commission of these offences he has placed himself in protection. He has difficulties sleeping and is often disturbed by dreams relating to his mother's death and stepfather's abuse.
5. He referred to suffering bouts of depression following his childhood exposure and referred to sexual abuse whilst in juvenile detention. He relied upon antidepressants to assist with anxiety and depression. He had not previously received counselling for his depression or past trauma or abuse.
6. It is unsurprising that the offender turned to the use of alcohol and cannabis from his early teenage years. By the age of 16 he was using heroin and thereafter commenced using methamphetamines. After his release from custody in 2019 he moved in with a partner who again used ice. However, he thereafter remained drug and alcohol free and had not consumed alcohol for 15 months until the night of the offences.
7. The offender noted that he drunk alcohol for the first time in 16 months on New Year's Eve. He responded to a request from a friend about problems with neighbours and became involved in a fight. He claimed that his actions were contributed to by his intoxication. However, he still expressed regret and remorse over his conduct.
8. Following various tests Ms Duffy diagnosed the offender as having suffered post-traumatic stress disorder, alcohol use disorder, persistent depressive disorder, and ADHD. Ms Duffy noted it was well recognised that persons suffering from adverse childhood experiences would be profoundly affected by trauma to the extent that they failed to develop skills to manage negative emotions. It was noted the offender was exposed to alcohol and drugs from an early age. He had spent much of his adult years in custody and was acclimatised to the use of violence as a means of dealing with conflict or confrontation. She considered that the offender's alcohol had limited his ability to make rational decisions and resulted in an aggressive response.
9. The offender indicated his readiness to participate in various programs to prevent reoffending and was determined never to return to custody. It was noted that the offender was at a stage in his life where he was more amenable to intervention and hopefully achieve some form of stability. The offender was at risk of becoming institutionalised unless supported in a non-custodial environment. Accordingly, he would need considerable support in the community.

Report of Danielle Castles

1. Ms Castles prepared a psychosocial report in 2014. The report noted the offender's criminal background, education and employment history, and substance use history. This was consistent with the history provided to Anita Duffy. Ms Castles provided similar opinions to that of Ms Duffy noting the offender's childhood being characterised by neglect, parental substance abuse and exposure to domestic violence. The report referred to the consequences of such exposure. It was noted that the offender's childhood experiences compromised his cognitive development. It resulted in elevated symptoms of anxiety and depression. She also referred to post-traumatic stress disorder following being shot.

Report of Eliza Lazos

1. Ms Lazos undertook a psychosocial report in February 2024. In addition to the background provided in the previous reports, Ms Lazos obtained a history of his extended family's exposure to war in Europe. Ms Lazos again reiterated the previous opinions as to the consequences of the offender's exposure during his most formative years. She described the offender as being "severely traumatised" having experienced multiple instances of violence as well as the complications surrounding his mother's death. She referred to various strategies going forward to assist and support the offender.

Tony Krajnovic

1. Mr Krajnovic is the offender's uncle and is presently the carer of his two children through the foster system. He attested to the offender's difficult upbringing referred to in the earlier reports. He reflected on the general neglect of the offender by his parents. Mr Krajnovic confirmed his support for the offender, particularly in the context of being the foster parents of his two children. It is fair to say that clearly Mr Krajnovic will be a support for the offender upon his release.

Jake De-Salis

1. Mr De-Salis is the justice chaplain at the South Coast Correctional Centre. He has had contact with the offender in his pastoral role. The offender had expressed a clear desire to bring about significant positive changes for the future and demonstrated a high level of engagement. He had effectively worked within the prison system and demonstrated responsibility for his duties. He considered that the offender had shown "commendable dedication to personal growth and rehabilitation".

Crown submissions

1. The Crown noted the maximum penalties for each of the offences and observed that the offence of cause grievous bodily harm attracts the longest determinate sentence available for an offence under the Crimes Act 1900. The maximum penalties demonstrate the seriousness of the offending.
2. The Crown addressed the objective seriousness of each of the offences for which the offender is to be sentenced, noting that Sequence 3 was inflicted with a knife which aggravated the objective seriousness. It was also noted that the offence was committed by the offender in company with others which further aggravated its objective seriousness.
3. The Crown noted the vulnerability of the victim and that the attack was without provocation. The areas of the body of Petersen which were targeted and struck aggravated the offence. It was apparent that the victim Petersen had suffered significant injuries and medical complications. It was also noted that Sequence 5, reckless wounding in company, was inflicted with a knife leaving a significant deep laceration wound to the victim's arm.
4. The Crown noted aggravating features included the record of previous convictions for offences of serious personal violence and further that the offence was committed whilst on conditional liberty. The Crown withdrew its written submission that a further aggravation was that the offence was committed the presence of a child.
5. The Crown acknowledged the mitigating factor was that the offending was not planned and there was a plea of guilty. Further, the Crown acknowledged the traumatic and disadvantaged background and acknowledged that the offender's moral culpability would be reduced. The Crown referred to the purposes of sentencing and principles of totality.

Offender's submissions

1. The offender referred to the objective gravity of the offending and acknowledged that the fact that the offences occurred in company was an aggravating factor for the first offence whilst was an element of the second offence.
2. It was acknowledged that the degree of threat felt by the victim would be magnified where there was more than one offender. It was acknowledged that the use of the knife was a weapon of some significance and was clearly capable of causing very serious injury.
3. With respect to the section 33 offence, it was noted that this contemplated a range of injuries. It was acknowledged that Petersen suffered significant injuries which were serious and potentially life-threatening. It was conceded that the offending would be regarded as unprovoked. Whilst the victim impact statement was acknowledged, it was noted that the Court would not find that the harm was a distinct aggravating factor.
4. It was conceded that aggravating factors included the use of a weapon, that the section 33 offence was committed in company and that the offender was on conditional liberty at the time.
5. Reference was made to the plea of guilty including an entitlement to a 25% discount, expressions of remorse, and the avoidance of the ordeal of the victims having to give evidence.
6. The submissions referred in detail to the offender's subjective circumstances and contended that the relevant principles referred to in Bugmy v The Queen - [2013] HCA 37 - 249 CLR 571 were applicable. The submissions also referred to mental health considerations and the relevant principles applicable in such a case. The Court would also take into account the risk of institutionalisation and that special circumstances would be found. Reference was also made to issues of totality in sentencing.
7. In supplementary submissions counsel for the offender addressed the report of Dr Reid and in particular that the Court would not be satisfied that the surgery performed by Dr Reid was as a consequence of the injuries. However, it was acknowledged that the surgery was more complicated by reason of injuries arising from the offending. Reference was also made to a successful fundraising for the victim Petersen in which somewhat alleviated the financial consequences of the offending.

Consideration

1. The offender is to be sentenced with respect to offences of cause grievous bodily harm to person with intent and reckless wounding in company. The offences were committed in the context of a violent and unprovoked attack on two innocent victims, both involving the use of a dangerous weapon. The knife being brandished by the offender during the commission of each of the offences self-evidently exposed both victims to significant danger and was capable of causing very serious injury.
2. Several recent decisions of the Court of Criminal Appeal have observed that whilst there is a need for the sentencing judge to assess the objective seriousness of the offence for which the offender is to be sentenced, there is no requirement that it be assessed by reference to some hypothetical mid-point: DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; Pender v R [2023] NSWCCA 291.
3. Both offences involved the use of a weapon which aggravates the offences. It is significant that the weapon used was a knife which had the potential to cause very significant injury. As was conceded, the knife was swung in a vulnerable part of the victim's body.
4. With respect to sequence 3, the offence was committed in company. The offence involved the offender swinging the knife at the victim's abdomen area resulting in a stab wound to the right upper quadrant of the abdomen. The stabbing was of such severity that it resulted in a deep laceration to the liver which was found, in surgery, to be actively bleeding. The injury to the abdomen necessitated two emergency surgeries with potential life-threatening consequences. The victim's abdomen injury was further complicated, requiring additional surgery including removal of the victim's gallbladder. Additionally, the offender stabbed the back of the victim's head with the knife resulting in a scalp laceration with small bone fragments being visible. The offence (constituting grievous bodily harm) contemplates of a range of possible injuries. Whilst the injuries suffered by the victim were serious, self-evidently they were not the most serious contemplated by the offence.
5. The attack was entirely unprovoked and involved a considerable degree of violence. I accept it was spontaneous and there was an absence of planning or premeditation.
6. I find that this offence, whilst a serious example of offending contemplated by the section, is not the most serious.
7. The sequence 5 offence, reckless wounding in company, involved the offender swinging the same knife at the victim resulting in a deep laceration to the left arm which required medical treatment. The victim was attacked in circumstances where he was seeking to come to the aid of the other victim who had been set upon by the offender and co-offender. During the attack a co-offender swung a piece of wood in the victim's direction resulting in the victims left arm being broken whilst trying to protect himself. I accept the offender's submissions that given the offence to which the offender has pleaded guilty the Court is not to have regard to any injury that would otherwise amount to grievous bodily harm. Relevantly in this case the left arm ulna fracture.
8. I accept that this offence was also entirely unprovoked and involved a considerable degree of violence. However, the attack was spontaneous, absent of planning or premeditation.
9. Similarly, I find that this offence, whilst a serious example of offending contemplated by the section, is not the most serious.
10. In determining an appropriate sentence, I have considered the aggravating factors for the purposes of s 21A of the Crimes (Sentencing Procedure) Act 1999 ('CSPA'), in addition to those to which refence has already been made, that the offences were committed by the offender whilst on conditional liberty.
11. The Crown contends that an aggravating factor is the offender's previous record, and relevantly, offences of serious personal violence, including aggravated robbery, reckless wounding, take/detain person with intent to obtain advantage and assault occasioning actual bodily harm. The offender contends that whilst the offenders previous record disentitles him leniency, it would not be considered an aggravating factor for the purposes of section 21A of the CSPA.
12. In Van Der Baan v R [2012] NSWCCA 5, Hall J (with whom Beazley JA and Harrison J agreed) observed at [30]: - "… (5) Prior convictions are pertinent in terms as to where, within the boundaries set by the objective circumstances, a sentence should lie: McNaughton (supra) per Spigelman CJ at [26] (Bell J (as her Honour then was) and Hislop J agreeing). This proposition may be seen to be reflected in references in Veen (No 2) (supra) to concepts such as an "attitude of disobedience to the law" and to the increased weight to be given to retribution, to "deterrence" (relevantly personal deterrence) and "the protection of society"."
13. Whilst I accept the offender's criminal record includes some previous convictions of the type identified by the Crown, I am not satisfied that the offender's criminal record is of itself an aggravating factor for the purposes of section 21A. However, it does disentitle him to leniency. Further, I am satisfied that the offender's prior criminal record increases the weight to be given to retribution, personal deterrence (which means imposing a sentence that will deter the offender from further offending) and protection of society.
14. I note the Crown abandoned its written submission that a further aggravating factor was that the offences occurred in the presence of a child under the age of 18.
15. I accept, in terms of mitigating factors, that the offending occurred spontaneously in circumstances where the offenders came upon Gamble in the front yard with Petersen subsequently approaching the offender and co-offenders. In the circumstances I am satisfied that the offending was not planned or part of organised criminal conduct.
16. A further mitigating factor is the offender's early plea of guilty. As Yehia J (with whom Chen and Wright JJ agreed) observed in Giles-Adam v R; Preca v R [2023] NSWCCA 122, "the utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice are conceptually different." As her Honour observed the former is an objective factor requiring quantification whilst the latter is a subjective factor which has the potential to mitigate the sentence "as part of the process of instinctive synthesis".
17. Bell P (as his Honour then was) in Baden v R [2020] NSWCCA 23 observed: - "In Cameron, Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused's "willingness to facilitate the course of justice" which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources."
18. I am not satisfied that the plea was merely an acceptance of the inevitable in the face of an overwhelming Crown case, but rather a willingness to facilitate the course of justice, including the fact that the victims did not have to suffer the ordeal of giving evidence in Court. I further accept that the plea of guilty is an expression of remorse, consistent with the statements of the offender to the psychologist Anita Duffy. Remorse is a further mitigating factor, demonstrated by the offender pleading at the earliest opportunity.
19. The evidence overwhelmingly establishes that the offender experienced a very traumatic upbringing during his most formative years. I accept that the offender not only witnessed physical abuse perpetrated on his mother by his stepfather, but that he was also subjected to physical abuse and forms of discipline which were repressive and degrading. The offender was also exposed to his stepfather's abuse of alcohol and illicit drugs, the latter in which his mother also actively engaged. Accordingly, the offender was exposed to illicit substances from an early age. The offender attended numerous primary and high school in circumstances where his mother moved around to escape her partner's violence. His family circumstances also lead to the offender being the subject of bullying at school. Further the offender was subjected to sexual abuse whilst in juvenile detention.
20. I am therefore satisfied that the offender's moral culpability is reduced by reason of the offender's upbringing: Bugmy v The Queen [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169 at [51] - [57] (Brereton JA with whom Basten JA and Beech-Jones J agreed). In Bugmy, the High Court observed at [42] to [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ): "… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending".
21. However, as Brereton JA (with whom Basten JA and Beech-Jones J (as his Honour then was) agreed), in Hoskins v R [2021] NSWCCA 169 at [55]: - "…[b]ecause the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision", this does not mean "that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment": Bugmy at [545]. "Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.""
22. Accordingly, whilst I accept the offender's moral culpability is reduced by reason of his upbringing, it is also necessary to be cognisant of the protection of the community, particularly in circumstances where the offender has a lengthy criminal history including serious offences of violence. Whilst the offender's criminal history is not an aggravating factor, it is a matter which must be considered part of the process of instinctive synthesis in sentencing.
23. I accept the opinion of Anita Duffy that the offender met the criteria for the diagnosis of post-traumatic stress disorder, alcohol use disorder, persistent depressive disorder and, provisionally, attention deficit hyperactivity disorder.
24. As to the effect of a mental condition reducing an offender's moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed: "[74] A reduction in moral culpability results where an offender's mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending. [75] The sentencing task should not be approached in "an unduly technical or restrictive way": see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence. [76] While a sentencing Judge should not become preoccupied with the issue of "causation" as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing)." (Emphasis added).
25. The evidence is insufficient for the Court to be satisfied that there is a direct link between the offending and the offenders mental health. As Anita Duffy observed, it was the offender's level of alcohol consumption which impaired his judgement and his ability to make rational decisions, problem solve and increased the likelihood of an aggressive response to the confrontation with victims.
26. However, I further note the observations of the psychologist that people suffering from adverse childhood experiences such as those experienced by the offender often failed to develop skills to manage negative emotions and are likely to experience depression and engage in substance abuse in adulthood. Counsel for the offender relied upon the observations of Button J in Moiler v R [2021] NSWCCA 73 at [61] as follows: - "In similar vein, whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other."
27. Given the opinions of Anita Duffy, I accept that there is a relevant connection between the offender's abuse of alcohol and his mental state which, at least in part, has been caused by his deprived upbringing and adverse childhood experiences.
28. In considering the purposes of sentencing provided in section 3A of the CSPA, the Court must ensure that the offender is adequately punished for the serious offences committed by him. Specific and general deterrence continue to have a role to play despite the matters traversed in the various expert reports. As previously observed, protection of the community is a relevant consideration given the offender's criminal history and his tendency to resort to significant violence, particularly when using illicit substances including alcohol.
29. The sentence must also recognise the significant harm to the victim. The victim impact statement of Shaun Petersen demonstrates that the offending has significantly impacted the victim physically and psychologically. This is unsurprising given the nature of the unprovoked attack perpetrated on the victim. I have also had regard to the report of Dr David Reid. I am not satisfied that the hernia repair performed by Dr Reid was a consequence of any injury suffered in the assault. However, I am satisfied beyond reasonable doubt that the existence of the underlying injuries complicated the surgery.
30. Whilst the harm done to the victim is a relevant consideration under s 3A of the CSPA, I am not satisfied that the injuries and harm constitute an aggravating factor under s 21A(2)(g) of the CSPA. I accept the offender's submission that the fundraising has, to an extent, alleviated the financial hardship, although it must be acknowledged that there is likely to have remained a significant financial burden given the victim's absence from the workforce and cost of medical treatment.
31. However, it is necessary to also consider the rehabilitation of the offender. The offender's criminal history and repeat offending does not bode well for his prospects of rehabilitation. The offender has previously engaged in programs which it would be expected would support the offender's rehabilitation. Despite undertaking these programs, the offender has continued to commit offences including the offences for which he is to be sentenced.
32. However, I note the recent report of Eliza Lazos that whilst the offender had previously participated in programs in custody, he has not engaged in ongoing support to address the underlying trauma and its impacts. I also take into account that the offender is further motivated for his own rehabilitation given he is the father of two young children. Regrettably those children are presently in care given the ongoing drug use of the offender and his partner, and mother to the children. However, I accept that the ongoing presence of his children are, to an extent, a motivator towards rehabilitation. I further note, consistent with the letter of support from the offender's uncle, Tony Krajnovic, that the offender will have some support upon his release and is a further motivator to reengage with his children. I also consider the real risk of institutionalisation from any sentence of imprisonment.
33. I accept that the offender's time in custody will be more onerous given his mental health conditions and the difficulties in accessing treatment while incarcerated.
34. I accept the finding of special circumstances ought to be made given the more recent appreciation by the offender of the impact of the past traumatic experiences and his motivation to seek treatment to address these issues. Self-evidently the opportunities for treatment and further rehabilitation are more readily available in the community.
35. I make a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. I find that this is indeed a suitable case for leniency in considering the non-parole period: TM v R [2023] NSWCCA 185 at [103] (Yehia J with whom Payne and Stern JJA agreed).
36. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.
37. In terms of differing charges faced by differing offenders, the majority of the High Court (French CJ, Crennan and Kiefel JJ) stated in Green v R; Quinn v R (2011) 244 CLR 462 at [30]: "The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v R, [48] there can be significant practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitation, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.' (Emphasis added)
38. With respect to the offence of cause grievous bodily harm to person with intent, I am satisfied that the offender's offending is more objectively serious than his co-offender. The offender inflicted the injury directly on the victim whilst wielding a knife. The co-offender is criminally responsible for the same offence as part of the joint criminal enterprise although I am satisfied on the balance of probabilities that the co-offender was not wielding the weapon which inflicted the injury.
39. The offence was committed whilst the offender was the subject of a community corrections order, whilst the co-offender was the subject of both a community corrections order and an intensive correction order. The offender has a lengthy criminal record, unlike his co-offender. The offender has stronger subjective features including Bugmy factors, whilst there are underlying mental conditions applicable to both offenders. The prospects of rehabilitation are more positive for the co-offender than the offender. Both have expressed remorse in respect of their offending which I have accepted, and I have made a finding of special circumstances with respect to both offenders.
40. With respect to sequence 3, cause grievous bodily harm to person with intent, an appropriate sentence is 8 years from which is to be deducted 25% for the plea of guilty resulting in a sentence of 6 years with a non-parole period of 3 years 7 months.
41. With respect to sequence 5, reckless wounding in company, the appropriate sentence is 4 years from which is to be deducted 25% for the plea of guilty resulting in a sentence of 3 years with a non-parole period of 1 years 10 months.
42. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).
43. It is also necessary, when determining the aggregate sentence, particularly where the offences for which the offender is to be sentenced occurred over a relatively short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences.
44. Whilst there will need to be some accumulation reflected in the total aggregate sentence noting there two victims, it has a lesser role to play in determining the aggregate sentence given the offences occurred over a relatively short period of time and there is some underlying factual commonality.
45. In all the circumstances, an appropriate aggregate sentence is 7 years with a non-parole period of 4 years 3 months.
46. The offender was arrested, charged, and bail refused on 5 January 2023 and has remained in custody since that date. Accordingly, the sentence is to be backdated taking into account the total time he has spent in custody from the date of his arrest.

Orders 1. The offender, having pleaded guilty is convicted of the offences. 2. The indicative sentences are set out above. I impose a total aggregate sentence of imprisonment of 7 years to expire on 4 January 2030. 3. I impose a non-parole period of 4 years 3 months to expire on 4 April 2027. 4. The earliest date the offender is eligible to be released on parole is 4 April 2027. 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: 09 August 2024