R v Rajapakse - [2024] NSWSC 1642 - NSWSC 2024 case summary — Zoe

NSWNSWSC

R v Rajapakse

[2024] NSWSC 1642

Supreme Court of NSW|2024-12-09|Before: Chen J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-12-09

Before

Chen J

Catchwords

(2007) 168 A Crim R 41 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194 Dorsett v R [2024] NSWCCA 192 Droudis v R (2020) 103 NSWLR 806
[2020] NSWCCA 322 Dungay v R [2020] NSWCCA 209 Filippou v The Queen (2015) 256 CLR 47
[2005] HCA 25 Milat v R

Source

Original judgment source is linked above.

Catchwords

(2007) 168 A Crim R 41 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194 Dorsett v R [2024] NSWCCA 192 Droudis v R (2020) 103 NSWLR 806[2020] NSWCCA 322 Dungay v R [2020] NSWCCA 209 Filippou v The Queen (2015) 256 CLR 47[2005] HCA 25 Milat v RKlein v R [2014] NSWCCA 29 Muldrock v The Queen (2011) 244 CLR 120

Judgment (28 paragraphs)

[1]

JUDGMENT

HIS HONOUR: Corey Breceljnik was a much-loved son to Julie, partner to Alyce and father to their two young boys, and a friend to many. He was widely known as, and went by the nickname, "Sticks".
At around 11:20pm on 25 October 2020, Corey Breceljnik (or 'the deceased') was fatally stabbed outside 11 Slim Close, Watanobbi ('the premises'). He was 26 years of age.
Russel Rajapakse ('the offender') stood trial for Corey Breceljnik's murder. On 17 September 2024, a jury found the offender guilty of it.
He is now to be sentenced for committing that crime.

[2]

[7]

The further attempts to recover the drugs: contact is made with the offender

Lisa Gleeson contacted Jayden Young. Ms Gleeson knew Mr Young, and he was also friends with Caleb Thompson, Joel MacAlpine and the deceased. Mr Young also knew the offender. Jayden Young's evidence was that Lisa Gleeson called him and said, "Caleb and that had just ripped her off and asked me for Russ' number". Mr Young's evidence was that he rang the offender and said, "'Lisa wants your number' and then I'm pretty sure I gave her Russ' number", although he was not sure whether he gave her that number over the phone or via a text message. The "Russ" referred to in these discussions, and later messages, is the offender.
The telephone data records for this period establish that Jayden Young called the offender at 10:02pm; at 10:07pm, Lisa Gleeson tried to call the offender, and then Samantha Bellamy's phone makes contact with the offender's phone at 10:14pm for 17 seconds. A summary of stored communications for Jayden Young's mobile telephone has four messages occurring at 10:17pm between him and Anthony Lawlor, a friend of the offender - essentially, when all four of them are read together, the message reads: "tell Russ ring this number now. It is the chick Lisa".
The telephone records also establish that Anthony Lawlor makes a call to Samantha Bellamy's phone at 10:17pm, which she returns and there is a 5 minute and 18 second conversation.
At 10:37pm, there is contact, and a conversation for two minutes and 20 seconds, between the offender's mobile phone and Samantha Bellamy's phone. After this telephone call, the offender turned his mobile phone off.
Until contact was made by Lisa Gleeson and Samantha Bellamy, the offender and Anthony Lawlor had proposed to catch up, and there was no anticipation before that contact that they were going to be involved in the events that unfolded.
After the 10:37pm telephone call, Ms Bellamy sent a number of messages to Anthony Lawlor's mobile telephone at around 10:42-10:45pm, including: "Do you know anyone that can call one of them to find out where the dogs are at"; "[t]here should be some damage done to that bitches car that we rammed a few times"; and "[w]e are good nice genuine people we never do bad to anyone or rip anyone off just wanted you to know we really appreciate the help it was my stupid mistake anyways we will get organised and held (sic) down shortly".

[8]

The offender attends the premises

It was at this point that the offender and Mr Lawlor attended the premises in order to recover the stolen drugs. They arrived there at some point between 10:37pm and 10:50pm, having travelled there in Anthony Lawlor's car. At the time the offender attended the premises, he was in possession of a flick knife.
When they arrived, they knocked on the door and were let into the house. They went into Caleb Thompson's bedroom - which is where Caleb Thompson, Nicole Coster and the deceased were. It appears that, initially, there was something of a "friendly vibe" but after initial discussions, the offender and Mr Lawlor began demanding the return of the stolen drugs. The offender said: "I'm going to need to get that ounce back" and "I'm here for Lisa. I'm taking it back".
At 10:50pm, the offender phoned Samantha Bellamy, using Anthony Lawlor's mobile telephone, and there was a call of 28 seconds duration, with the offender saying: "They reckon, they said they don't have an ounce". At 10:53pm, there was a text message sent from Samantha Bellamy's telephone to Anthony Lawlor's telephone. This was the message that said: How much cash they got on them there was 100 % 10 grams there we double checked it before I ran it across the road to the gronks. If you can take the cash off them for the 2 grams they have already used between them aswell (sic)
Anthony Lawlor said: "If you put it on the bed, we'll just leave it at that". Nicole Coster described the atmosphere in the bedroom as "scary". Both Nicole Coster and Caleb Thompson handed over the methylamphetamine in their possession, although Caleb Thompson's evidence was that he provided fake methylamphetamine (or 'jump') he had with him.
Caleb Thompson's evidence was that the offender was the person who was asking for the drugs back and that Corey Breceljnik kept saying: "I don't have nothing, bro. Like, if I did, I'd give it to you. I don't have nothing". Both the offender and Anthony Lawlor called the deceased a liar and Nicole Coster's evidence was that "[t]hey thought that Sticks was hiding stuff". Caleb Thompson's evidence was that the offender and Anthony Lawlor were saying: "Where's the rest of it?", and he told them that Joel MacAlpine had got a split. Mr Lawlor said that he knew where Joel MacAlpine was, and he would make a telephone call.
At some stage after being dropped off by Nicole Coster, Joel MacAlpine was contacted by a friend named Shannon Dunk. Mr Dunk was also friends with the offender and Anthony Lawlor. He said to Joel MacAlpine: "I'm going to try and help you. Russel's dirty on you for what you done. You need to come and sort it out". The 'Russel' referred to was the offender. Mr Dunk picked up Joel MacAlpine in his car, and they drove to the premises.
Anthony Lawlor sent a text message to Mr Dunk at 11:08pm, in effect telling him to hurry up, that read: "Hurry up niggz incase (sic) these cunts try set us up". At 11:12pm, there is a 20 second call between the mobile telephones of Anthony Lawlor and Shannon Dunk.
At some stage after 11:12pm, Shannon Dunk, Joel MacAlpine and a third male, Todd Thornton, entered the premises and stood in the hallway near Caleb Thompson's bedroom.
At 11:15pm, there is a text message from Anthony Lawlor to Samantha Bellamy: "Talk soon still here". Just prior to that, Mr Lawlor had sent a text message to her: "Ttys". It is known that the "000" call by Nicole Thompson requesting an ambulance was made at 11:26pm, so the events, next described, occurred in the period between 11:15pm and 11:26pm.

[9]

The offender, Anthony Lawlor and Corey Breceljnik leave the premises

Although there is no dispute between the parties that the deceased left Caleb Thompson's bedroom and went outside with the offender and Anthony Lawlor, the parties were at odds as to the manner in which the deceased came to leave the house and, additionally, the circumstances that prompted him to leave the bedroom with the offender and Mr Lawlor.
The Crown submitted that the Court would be satisfied, beyond reasonable doubt, that in the context of a "heated discussion about the deceased not handing over a share of stolen methylamphetamine", the offender requested the deceased to "come out the front" and ushered him outside (Crown supplementary submissions at [3]). Further, although the Crown accepted, consistent with the jury's verdict in connection with count 2, that the offender did not intend to rob the deceased at the time of the altercation, the Court would nevertheless find that the offender was "angry towards the deceased for his refusal to hand over the stolen methylamphetamine" (Crown supplementary submissions at [4]). The offender submitted that the Court would "not accept that the [deceased] was dragged or man handled out of the house in any way, nor that any words were said to him to move outside of the house" (offender's submissions at 9 and (b)).
I accept, essentially as the Crown submitted, that following what was accepted to be repeated demands directed to the deceased for the return of the drugs in Caleb Thompson's bedroom, and the repeated denials by the deceased that he had any (and him being called a liar by the offender and Anthony Lawlor by way of response), that the atmosphere in the bedroom was as described by Nicole Coster - namely, "scary" - and that tensions escalated between the offender and Corey Breceljnik. Consistent with these matters, as well as the fact that the offender had willingly been tasked with securing the return of the drugs (or money), I am satisfied that the deceased was "requested" in effect to "come out the front" by the offender, and more or less coerced into going outside by him and Anthony Lawlor. I am also satisfied that they ushered Corey Breceljnik from the bedroom outside. As Nicole Coster said, the deceased "didn't really want to go out there, but he did". It is also consistent with the observations of Nicole Thompson, when she said that Corey Breceljnik "was sort of like ushered outside".

[10]

The events outside the premises: the stabbing of Corey Breceljnik

The parties were in agreement that the offender used a flick knife to stab the deceased in the area of his left armpit and, at around this time, the offender also caused an injury to the deceased's chin with the knife which was found to be a 60 mm long x 10 mm deep incised injury on the left side of the chin, causing a scored defect to the underlying jawbone. The injury to Corey Breceljnik's chin was caused by a slicing, not stabbing, motion.
The Crown submitted that the deceased was not the instigator, did not fight back and was not armed at the time of the altercation (Crown proposed facts at [92]). The offender, however, contested this arguing that, in effect, not only was there an altercation but that Corey Breceljnik was armed and may well have been the instigator of it (offender's submissions at [10]).
Given my earlier findings, I do not accept, as the offender submitted, that Corey Breceljnik "had an intention to confront the offender and Anthony Lawlor out the front of the house" (offender's submissions at 10). Rather, as I have already found, I am satisfied that Corey Breceljnik was essentially requested to go outside by the offender and Anthony Lawlor and coerced into doing so. The offender argued that what Corey Breceljnik said to his partner in a telephone call made at 11:07pm - namely: "I'm just going out the front. I've just got to do this real quickly, and I'm going home" - supported the finding sought, in effect, that the deceased wished to engage in a fight with the offender. I am not prepared to draw any such inference based upon those words. Further, the timing of this telephone call is not unimportant, as the Crown submitted: it occurred at a contextually significant period of time before the events outside the premises, when Corey Breceljnik was still within the house (and in Caleb Thompson's bedroom) and before Shannon Dunk and Joel MacAlpine arrived: see [31]-[32], above. That also tends against, I consider, the inference that the offender sought based upon what was said.
The offender also submitted that Corey Breceljnik may have started the fight. The offender relied upon the statement made by Corey Breceljnik to his partner at 11:07pm to support that finding. I am not prepared to draw any inference based upon what was said: the words, in my view, informed by the timing of the telephone call, do not support the drawing of that inference. Nor am I prepared to draw the inference based upon the text message that Anthony Lawlor sent to Shannon Dunk at 11:08pm: "Hurry up niggz incase these cunts try set us up". As I have earlier noted, that text message was sent by Mr Lawlor inside the premises before Shannon Dunk and Joel MacAlpine attended: that was also a contextually significant period of time before Corey Breceljnik left the premises with the offender and Anthony Lawlor and, further, the particular concern that led Mr Lawlor to send that text message was not identified. To be clear, I am not prepared to draw the inference sought by the offender based upon the words spoken by Corey Breceljnik to his partner or the text message that Anthony Lawlor sent to Shannon Dunk, or their combination. In my view, as the Crown submitted, what occurred outside was instigated by the offender: the offender requested Corey Breceljnik to "come out the front", which followed on from his unsuccessful attempts to have Corey Breceljnik hand over his share of the stolen methylamphetamine, and ushered him outside following which the attack commenced almost immediately.
The offender next argued that there was a "fight" between Corey Breceljnik and the offender. The offender relied upon the evidence of Anthony Lawlor and Shannon Dunk to support that finding.
The particular evidence relied upon from Mr Lawlor was that identified at Tcpt, 5 September 2024, p 711. The evidence Anthony Lawlor gave at that point of the transcript was less than clear: his evidence, when asked what he could see whilst outside the premises, was: "Nothing really", but that he could hear "like scuffling". When his attention was drawn to aspects of what he told police in an interview on 5 November 2020, to the effect that it "just looked like they were punching each other", his evidence was that he was "not sure" and when asked whether he saw punching responded: "I don't think so. I think I more heard it". I am not prepared to act upon this evidence, given its generality and, to be clear, I am unpersuaded that there was a "fight" in the way that the offender sought to characterise what occurred outside the premises. Separately, Mr Lawlor was a less than impressive witness and the distinct impression I formed was that he was clearly avoiding answering questions deliberately rather than having a genuine lack of recall - hence why leave was granted, which was not opposed, under s 38 of the Evidence Act 1995 (NSW) for the Crown to cross-examine him across a number of topics, including the events that occurred outside of the premises. I am not prepared to act upon anything Mr Lawlor said unless corroborated by evidence that I have expressly accepted.
The offender, as I have noted, also relied upon evidence from Shannon Dunk to support a finding that there was a "fight" between Corey Breceljnik and the offender. The offender relied upon Shannon Dunk's evidence at Tcpt, 9 September 2024, p 864 to support the finding sought. I do not accept this submission. That is because this evidence must have been rejected by the jury given their verdict - as the Crown submitted. That necessarily follows when the evidence, as a whole, is considered. The version given by Shannon Dunk was that, whilst he was in his car, he observed "two people like run across the front lawn and have some, they went up to Anthony and the other person and then there was like some sort of altercation" and that, although he "couldn't really see what was happening…it looked like maybe pushing and shoving or fighting going on…". His evidence was also that whilst that was occurring, the offender had "come out the front of the house. He walked down the stairs" and essentially intervened and "stopped whatever was happening, going on". Separately, Shannon Dunk was a most unimpressive witness, and the strong impression I formed was that, consistent with the above evidence, he was deliberately tailoring his evidence to favour the offender rather than telling the truth. I do not accept any part of his evidence unless corroborated by evidence that I have expressly accepted.
The offender also argued that Corey Breceljnik had in his possession two knives: although not explicitly stated, the effect of the submission appeared to be that Corey Breceljnik was armed at the time he went outside with the offender and Anthony Lawlor. There is no doubt that Corey Breceljnik had a flick knife in his possession when he went outside with the offender and Anthony Lawlor. That knife was subsequently found, "unopened", in his back pocket. It was accepted during the course of the trial that there was nothing to suggest that Corey Breceljnik had taken that knife out of his back pocket at any time, and no direct submission to the contrary effect was put during the current hearing. To be clear, I am satisfied that Corey Breceljnik did not "arm himself" with this knife: in my view, it is entirely implausible to find that after being stabbed, Corey Breceljnik, in the condition that he was in, took the time to fold the knife back up and put it in his back pocket.
The offender also argued that the Court should find that Corey Breceljnik armed himself with the knife that was located by crime scene officers in the kitchen of the premises (the location of which was identified by Marker N). I am not satisfied that the knife found in that location was Corey Breceljnik's and, to be clear, I am not satisfied that he had that knife in his possession outside the premises. That is for the following reasons. First, no witness gave evidence that Corey Breceljnik was holding a knife that evening - whether before, during or after the incident, including in the period of time that he was observed at the bottom of the steps after being stabbed, and when he re-entered the premises seeking medical assistance. Secondly, although there was some general evidence about Corey Breceljnik carrying a knife on other occasions, that is distinctly different from him arming himself with a knife at the time of these events and, in any event, that evidence is consistent with the unopened knife located in his back pocket. Thirdly, although Corey Breceljnik was one of a number of DNA profiles identified on the knife at Marker N, that says nothing about whether he was armed with it whilst outside the premises. In this respect, it should be noted that Corey Breceljnik lost a considerable amount of blood in the stabbing, and his blood was located in a number of areas where it is known he did not go following his re-entry into the premises after being stabbed.
The offender also argued that there was other evidence that tended to support an inference that there was a "physical fight" between him and Corey Breceljnik. The offender relied upon Dr Clifton's evidence of "blunt force injuries" to the deceased. It appears that the offender, by relying upon this evidence, sought to suggest that the presence of those injuries upon Corey Breceljnik permitted an inference to be drawn that they were caused by punches being thrown during the fight. I do not accept this submission. Although Dr Clifton gave some evidence that there were "multiple minor blunt force injuries", this was somewhat qualified in necessarily attributing them to a "minor physical altercation" - only suggesting that they "may" represent this. Further, later Dr Clifton gave evidence that "[a]bsolutely" those blunt force injuries could be consistent with the nature of the treatment that was required to be administered to the deceased (including restraining him) given that he was agitated and "thrashing about". The fact that, when cross-examined, Dr Clifton accepted that "one possibility" for a blunt force injury was being hit with a fist or hand, I do not accept as detracting from these matters if only by reason of its lack of persuasive value given the wide range of degrees of likelihood covered by such a phrase. Finally, I would simply note that merely because Corey Breceljnik had those markings says nothing about whether there was a "physical fight", as was argued. I remain unpersuaded that there was, as the offender submitted, a "physical fight" and, to be clear, unpersuaded that Corey Breceljnik "fought back".
The fact that the offender had a small injury to his hand does not, on its own or with any of the other matters relied upon by him, persuade me that that small injury was the product of him being involved in a fight in the way argued. As the Crown pointed out in submissions, the cause of that injury is unknown, as is the timing of it (Crown supplementary submissions at [18]). I am not prepared to speculate across any, or all, of these matters. That is particularly where, again as the Crown pointed out, it was the offender that was armed with a sharp knife, and who deployed it against Corey Breceljnik.
To sum up. I do not accept that Corey Breceljnik intended to confront the offender, as argued; I do not accept that Corey Breceljnik instigated anything outside the premises - what occurred was instigated by the offender; I do not accept that Corey Breceljnik was armed; and, finally, I do not accept there was an altercation in the way the offender argued.

[11]

The events following the offender stabbing Corey Breceljnik

To return to the background facts of which there was no controversy. The offender having sliced and stabbed Corey Breceljnik, Anthony Lawlor intervened, and said words to the effect: "Bro, that's enough".
After being stabbed, Corey Breceljnik was bleeding and slid down the wall at the bottom of the stairs.
Nicole Thompson heard a male voice yelling. She went outside and was standing on the top of the stairs at the front of the house. She saw the deceased sitting on the bottom step with blood on his chin, and she observed the offender and Anthony Lawlor standing nearby. Nicole Thompson had a conversation with the offender as follows: I just said, "What the fuck's going on?" And Russ said, "Fuck off back inside, Nicky. I didn't do nothing in your house. Now, fuck off."
Nicole Thompson went back inside and told her son to stay inside. A short time after the stabbing, the deceased entered the house bleeding. Nicole Thompson rang "000" at 11:26pm.
The offender left the premises in Anthony Lawlor's car. Mr Lawlor drove the offender to the house of a friend, Cody Read, which was nearby and in the same suburb. The offender handed Cody Read the knife.
The ambulance arrived at 11:37pm. By this time, the deceased was agitated, confused and bleeding heavily. He was taken by ambulance, at around 12:17am, and transported to John Hunter Hospital where he arrived at about 1:20am. Staff at the John Hunter Hospital located a resealable plastic bag within the deceased's underwear that subsequent testing revealed contained 2.09 grams of methylamphetamine.
Between 12:00am and 6:00am on 26 October 2020, both Lisa Gleeson and Samantha Bellamy continued to exchange text messages with the phones of Anthony Lawlor and the offender. Although it was suggested that there could be a meeting to give back the stolen drugs, reported by Anthony Lawlor to be "[o]nly 4.5 g", the stolen methylamphetamine was not returned to Samantha Bellamy or Lisa Gleeson. Instead, the offender, Anthony Lawlor and Shannon Dunk split the stolen methylamphetamine recovered between them.
In the early hours of 26 October 2020, Anthony Lawlor and the offender went to the Lake Haven Motor Inn, which was where Shannon Dunk and his partner had been staying. By the time Anthony Lawlor and the offender arrived, Shannon Dunk was present as was Joel MacAlpine. It was at this time that the offender made an alleged admission to Joel MacAlpine. In the written submissions filed, the offender put in issue whether this admission was made. During the course of submissions, the Crown accepted that the making of that admission was relevant to the question of remorse but that, given the offender did not seek a finding that he was remorseful, it was unnecessary to resolve that matter and make a finding about it (Tcpt, 9 December 2024, p 3(48)-4(9)). In those circumstances, given the approach of the parties, I will not resolve, and make any finding about, what is alleged to have been said by the offender at that time.
Despite surgical intervention, Corey Breceljnik continued to deteriorate and at about 12:47pm on 26 October 2020, he was pronounced dead.
On 27 October 2020, the knife was taken from Cody Read's premises by Shannon Dunk, but has not been recovered.
On 28 October 2020, a post-mortem examination was conducted by Dr Leah Clifton, and the cause of Corey Breceljnik's death was determined to be the result of "complications of left axillary artery sharp force injury", or simply, a fatal stab wound in the left armpit to the artery that runs through the shoulder joint: the left axillary artery is a major artery that conveys blood from the heart to the left arm.
The injury was caused by a penetrating stabbing motion with sufficient force that it went through the skin of the deceased's left armpit, and through fat and muscle before getting to the artery. The injury to Corey Breceljnik's chin was, as earlier noted, caused by a "slicing" motion, as opposed to a stabbing one.
Toxicology from antemortem blood taken from the deceased at 1:40am on 26 October 2020 indicated a reading of methylamphetamine at 1.8mg/L.
On 28 October 2020, the offender was arrested and charged with the murder of Corey Breceljnik.

[13]

The objective seriousness

An assessment of the objective seriousness of the offending is a critical requirement of the sentencing process: R v Campbell [2014] NSWCCA 102 at [27]; R v Van Ryn [2016] NSWCCA 1 at [133]-[136] ('Van Ryn'). The importance of that assessment is to ensure that an adequate sentence is imposed in accordance with s 3A(a) of the CSP Act and that the sentence is proportionate to the gravity of the crime: Van Ryn at [134]-[135]; FL v R [2020] NSWCCA 114 at [58] ('FL'). The assessment also enables use to be made of the legislative guideposts, being the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27]; Van Ryn at [135].
The Crown submitted, and the offender accepted, that the offending should be assessed, on a notional range, to be "just below the mid-range of objective seriousness" (Crown submissions at [8]; offender's submissions at [14]). It should be observed that although it is not a requirement to assess the objective seriousness of a standard non-parole period offence by reference to a notional range, it has been considered not unhelpful to do so: FL at [58]-[60]; Dorsett v R [2024] NSWCCA 192 at [148]-[150]. Given the approach of the parties, I am satisfied, and prepared to find, that the offending should notionally be assessed in the way argued - namely, as just below the mid-range of objective seriousness.
The parties were, largely, in agreement as to the matters that informed that assessment of the objective gravity of the offending (and, by extension, the notional range suggested), save in three respects. The matters so agreed, or where contested resolved, are as follows (Crown submissions at [7]; offender's submissions at [11]-[14]), and they reflect my findings.
First, whilst the offender was armed with a knife when he attended the premises, he did not attend intending to kill Corey Breceljnik: the Crown accepted that it was not a planned offence. Nevertheless, in the circumstances of the offender attending the premises to retrieve the stolen methylamphetamine, and armed with a knife, he must have anticipated the potential for violence (Crown submissions at 7 and (b)). Secondly, the offender, having armed himself with a knife, used it on Corey Breceljnik: in addition to the slicing injury to the chin, the offender inflicted the single fatal stab wound to Corey Breceljnik's left armpit. The penetration with the knife to the deceased's armpit was with sufficient force to sever the left axillary artery (Crown submissions at 7-(h)). Thirdly, the offender's intention at that time was to cause Corey Breceljnik grievous bodily harm, not an intention to kill (Crown submissions at 7). Fourthly, Anthony Lawlor had to intervene before the offender ceased the attack on Corey Breceljnik, following which the offender left the scene whilst Corey Breceljnik was bleeding heavily (Crown submissions at 7-(k)).
The offender contested that, as the Crown submitted, "[t]ensions escalated" between the offender and Corey Breceljnik, following his refusal to provide his share of the stolen methylamphetamine (Crown submissions at 7). I am well satisfied that the Crown submission correctly characterises what occurred, and explains why the offender required Corey Breceljnik to "come out the front". I am also satisfied, and find, that in making that demand of Corey Breceljnik, the offender intended violence (Crown submissions at 7): he willingly undertook the task of recovering the drugs on behalf of the suppliers; the statement was the culmination of unsuccessful efforts and requests to have Corey Breceljnik hand over his share of the stolen drugs, as I have earlier described; and, as the Crown submitted, the attack by the offender commenced almost immediately upon Anthony Lawlor, the offender and Corey Breceljnik going "out the front".
I also accept, as the Crown submitted and as I have earlier found, that Corey Breceljnik was unarmed and there is no suggestion of provocation (Crown submissions at 7).

[23]

The Bugmy principles

As noted above, the offender tendered a report from a psychologist, Ms De Santa Brigida, which was prepared following an assessment of the offender, conducted by AVL, on 11 November 2024.
The offender made limited submissions about the content of this report, confined to those in the written submissions, as follows: 1. That the offender was "exposed to violence within the family home from a very young age"; was "deprived of his father's presence and care whilst his father was incarcerated for a number of years"; during the offender's childhood "he has been suspended and reprimanded for fighting and misbehaviour"; and that the offender had a "lengthy drug addiction to illegal and prescription drugs, from the very young age of 10" and that his mother was herself a drug addict and was currently "fighting cancer" (offender's submissions at [3]). 2. That the offender's "significant use and addiction to drugs [had] resulted in a number of substance abuse disorder diagnoses" and that his "childhood difficulties have also given rise to a diagnosis of PTSD/Complex Trauma" (offender's submissions at [15]).
The submission put by the offender was that "aspects of the offender's life", identified in the report from Ms De Santa Brigida as set out above, "may encourage the Court to apply the principles in Bugmy v the Queen (2013) 249 CLR 571 in this case" (offender's submissions at [15]). Other than those referred to above, no particular findings were sought by the offender.
The relevant principles to which the submission refers should be identified. They relate to the impact on sentencing of a history of disadvantage and deprivation, and recognise that profound disadvantage during childhood or adolescence "may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms", with the consequence that they may not be as morally culpable for their offending: R v MJ [2023] NSWCCA 306 at [5] ('MJ'); Lupton v R [2024] NSWCCA 29 at [145].
The principles derive from the decision in Bugmy v The Queen (2013) 249 CLR 571 ('Bugmy'), where it was held that "the effects of profound deprivation do not diminish over time and … are to be given full weight in the determination of the appropriate sentence in every case" and that, given that a background of profound deprivation "is a feature of the person's make-up [it] remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending": at [42] and [43]. Further, it was also held that "full weight" should be afforded to an offender's deprived background in every sentencing decision, given "the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending": Bugmy at [44]. The deprivation "may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way": Bugmy at [40] and [44].
Relevantly, some other matters about these principles should also be noted. First, the application of the principles in Bugmy are not discretionary once the circumstances attracting their operation are engaged, albeit that countervailing factors, including the protection of the community, may affect their impact: R v Irwin [2019] NSWCCA 133 at [3] and [5]; Dungay v R [2020] NSWCCA 209 at [138]-[141] ('Dungay'); Hoskins v R [2021] NSWCCA 169 at [56] ('Hoskins'). Nevertheless that "does not mean that they need to be given the same weight in every case", but rather it is a matter of evaluation in each sentencing exercise: Dungay at [139]. Secondly, there is "no magic in the word 'profound', and it is not necessary to characterise an offender's childhood as one of 'profound deprivation' before the principle is engaged": Hoskins at [57]. Thirdly, the principles do not require the establishment of a causative link between the circumstances of deprivation and the offending: Dungay at [148]-[153]; MJ at [5]-[15].
The offender's submissions did not deal with the content of the report from Ms De Santa Brigida, other than in the way earlier identified. The Crown's supplementary submissions, possibly informed by the offender's approach, addressed part of it. Given the confined way in which reliance was placed upon this report, and the opinions expressed in it, by the offender, the key parts may be summarised briefly as follows.
Ms De Santa Brigida did not address "the background of the offence". She noted the offender's family background and education and employment, as well as his substance abuse history (in those sections of the report headed: "4. Socio-Demographic Data" and "5. Substance Abuse History"). The offender relied upon those parts of the report to support the submission that those aspects of his life "may encourage the Court to apply" the Bugmy principles (offender's submissions at [15]).
In short, in those parts of the report it was noted that the offender identifies as Indigenous through his mother's heritage; that his father had previously been incarcerated for violence offences; that his mother is currently unwell with recurring cancers and that she had a significant history of drug abuse and psychiatric problems (report, pars 4.1-4.3); whilst the offender's father was incarcerated, his parents separated and his mother started another relationship with a person who was reportedly "very physically abusive towards him, his mother and his brother" (report, par 4.5); that the offender's father, whilst never physically abusive towards him, was "emotionally absent during his younger years"; and that there was a claim that the offender was sexually abused albeit that the offender "did not elaborate further regarding this abuse" (report, par 4.6). In relation to education and employment, the report noted that there were issues from when the offender was in kindergarten "for misbehaviour, predominantly fighting" and that there were reportedly learning difficulties experienced (report, pars 4.8-4.9) and, following leaving school, the offender has engaged in limited employment - apparently he has not been employed since he was 20 years of age (report, pars 4.10-4.11).
In terms of substance use, the offender reportedly first experimented with cannabis at the age of 10 and was "still smoking prior to the current offence" (report, par 5.1); at age 18, the offender commenced using crystal methylamphetamine, with his use "escalat[ing] significantly around age 24/25" and he had used that drug "half an hour prior to the current offence" (report, par 5.4); he commenced experimenting with heroin at age 21, and became physically dependent on it (report, par 5.6); and he commenced using the drug Xanax at around age 21 and had taken some of that drug some hours "before the current offence" (report, par 5.7).
Given this history, Ms De Santa Brigida considered that under DSM-5, the offender "would have met the criteria" for stimulant use disorder (amphetamine-type substance, severe); sedative-, hypnotic- or anxiolytic-related disorders (severe); opioid use disorder (severe); cannabis use disorder (mild) and noted that these were "now considered in a controlled environment" (report, par 5.9; 8.1). The offender submitted that there was "also a significant use and addiction to drugs which has resulted in a number of substance abuse disorder diagnoses (see conclusions page 24)" (offender's submissions at [15]). That submission to a point may be accepted: the offender was clearly a significant user of drugs, based upon what he is reported to have told Ms De Santa Brigida, but in terms of the diagnoses made by Ms De Santa Brigida, they were I consider historical. The opinion expressed at par 5.9 was that the offender "would have met" the criteria for those substance use disorders and, at par 8.1, the opinion expressed was that "[a]t the time of the current offence, he would have met the following under the nomenclature of the DSM-5". Neither diagnosis was expressed to be current, perhaps reflected in the statement made by Ms De Santa Brigida that "[a]ll these are now considered in a controlled environment". To the extent that these are suggested to be enduring, the report does not explain (at least in a way that I accept) how that is the case, and I am not prepared to find that they are. The report also noted that the offender had not undertaken any form of substance abuse treatment, with the exception of the buprenorphine program, which the offender had commenced "approximately three years ago" but reportedly withdrew from "approximately seven months ago" (report, pars 5.6, 5.10).
The offender also submitted that his "childhood difficulties have also given rise to a diagnosis of PTSD/Complex Trauma" (offender's submissions at [15]). Ms De Santa Brigida expressed the opinion that, against the background of "significant trauma in his developmental years" experienced by the offender, he met the diagnostic criteria for Post-traumatic stress disorder (PTSD) with dissociative features: she expressed the "assertion" that that diagnosis "has occurred against a background of complex trauma" (report, par 8.4). She also suggested that the offender's diagnosis of PTSD/complex trauma "would have had a significant effect on his behaviour at the time of the current offence" (report, par 8.5). In this last respect, it should be noted that the offender did not seek a finding in line with this suggestion. Separately, given Ms De Santa Brigida did not address "the background of the offence", nor was she asked to assume any matters relating to it, the basis for this opinion was not identified, and I would not act upon it.
The Crown accepted, and I am prepared to find, that the offender's exposure to domestic and family violence in childhood and the suggested link between PTSD (due to the trauma) and explosive anger operate to reduce his moral culpability albeit not significantly so given, as the Crown submitted (and I accept), the offender was armed prior to attending, instigated the altercation that occurred outside the premises and decided to use the knife having done so.
I have also taken into account the PTSD/complex trauma and more broadly considered the offender's history and background when arriving at the appropriate sentence and, further, I have taken into account the condition as moderating the overall sentence because the offender's experience in custody may well be, to a degree, more onerous by reason of it (notwithstanding the evidence did not directly address this issue, and no submission was made about it), consistent with what was said in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] ('De La Rosa'). It also should be noted that no submissions were made by the offender directed to the application of the other principles referred to in De La Rosa at [177].
Notwithstanding that I have moderated the offender's moral culpability for the offending, general deterrence remains, however, important, as does adequately punishing him, denouncing his conduct and making him accountable for it.

[24]

The conduct of the trial

The offender submitted that although he will not receive any discount for a plea of guilty, steps were taken by him at trial to ensure that it was conducted efficiently, and therefore a "reduction should be applied" - giving examples such as that statements and evidence were read where possible (so as to avoid calling witnesses unnecessarily), a large body of evidence was adduced through the officer in charge (rather than through multiple witnesses) and there was agreement as to call and telephone summaries (offender's submissions at [22]-[24]).
The Crown, by way of response, accepted that "the trial was run efficiently in some respects, in particular using agreed facts and the reading of statements and evidence of witnesses who were unavailable at the re-trial", but pointed out that "[d]espite the evidence, the offender did put in dispute that he was the person responsible for causing the injury and then subsequently relied on self-defence if the Crown established this fact" (Crown supplementary submissions at [20]-[21]). Nevertheless, the Crown did "not oppose a slight reduction in sentence given the conduct of the trial" (Crown supplementary submissions at [22]).
A sentencing court "may impose a lesser penalty" for facilitating the administration of justice by the defence: s 22A(1) of the CSP Act. A lesser penalty imposed, however, "must not be unreasonably disproportionate to the nature and circumstances of the offence": s 22A(2) of the CSP Act.
It is a little difficult to meaningfully assess the nature and extent of the co-operation based simply upon submissions without evidence, particularly in the absence of the necessary counterfactual and an explanation for it. Nevertheless, given the Crown's concession, I am prepared to reduce the penalty otherwise to be imposed upon the offender slightly to reflect the facilitation of the administration of justice. It is, however, not mandatory to specify the penalty which would be imposed but for the facilitation of the administration of justice, notwithstanding in particular cases (of which this is not one) it might be desirable to do so: Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [104]-[105].

[26]

Other relevant sentencing matters

The parties' written submissions made reference to "comparable cases". I have had regard to these sentencing decisions and derived some assistance from a consideration of them. Nevertheless, the assistance is limited given the differences between those cases and the facts of the present case.
It is necessary to address the commencement date of any sentence of imprisonment.
The reckless wounding offence was committed on 13 October 2019. The offender was arrested that day and remained in custody, bail refused, until granted conditional bail on 24 March 2020. The offender therefore spent 164 days in custody referable to this offending prior to bail being granted. On 28 October 2020, whilst on bail, the offender was charged with the murder of Corey Breceljnik and taken into custody, where he has remained since that date. The offender's bail for the reckless wounding charge was not, however, revoked.
On 26 February 2021, the offender was sentenced for the reckless wounding offence at the Central Local Court. On appeal, the District Court imposed a sentence of 2 years imprisonment, commencing on 16 September 2020 and expiring on 15 September 2022, with a non-parole period of 16 months (Crown material, pp 2 and 28). The non-parole period expired on 15 January 2022 (Exhibit A, p 2; Crown submissions at [26]-[27]). That sentence was backdated from 26 February 2021 to 16 September 2020 to reflect the 164 days that the offender had spent in custody prior to bail being granted.
It follows, therefore, as the Crown and the offender accepted, that the period from 28 October 2020 (when the offender was taken into custody on the charge of murder) to 26 February 2021 (when he was sentenced for the reckless wounding offence) - a period that was agreed by the parties to be 112 days (it appears, however, to be slightly longer - namely, 122 days) - was solely referable to the current offending.
When sentencing an offender, "any time for which the offender has been held in custody in relation to the offence" must be taken into account by the sentencing court (s 24(a) of the CSP Act) and, when determining when that sentence is to commence, the sentencing court "must take into account any time for which the offender has been held in custody in relation to the offence": s 47(3) of the CSP Act.
Both parties approached the matter on the footing that any sentence should commence, at the latest, at the expiry of the non-parole period for the reckless wounding offence - namely, 16 January 2022 - but was also required to take into account the 122 days that the offender spent on remand solely referable to the current offending (Crown submissions at [29]; Tcpt, 9 December 2024, p 13(10)-14(45)). The parties nominated that the relevant, albeit approximate, date for the commencement of any sentence would be 15 September 2021. Separately, however, each submitted that it was open to the Court, applying the principle of totality, to determine an earlier commencement date - albeit that the offender submitted (as did the Crown) that any proposed earlier commencement of the sentence would be constrained by that principle given "the two offences were separate in time and the Court must ensure that the reckless wounding sentence is as the Crown identifies 'appropriately reflected'" (offender's submissions at [18]; Crown submissions at [30]).
The principle of totality, which determines whether sentences should be served concurrently or consecutively, requires an assessment of whether the "sentence for one offence [can] comprehend and reflect the criminality for the other offence": Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] ('Cahyadi').
In the present circumstances, applying the principle of totality, I consider there should be a modest downward adjustment, given the offences are separate and distinct, such that the sentence for one offence "cannot comprehend the criminality of the other": Cahyadi at [27]. To order otherwise will fail, I consider, to reflect the total criminality of the two offences. I propose therefore to commence the offender's sentence on 15 July 2021.

R v Rajapakse

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (29)