Stobinski v R

Before: Davies J at [1]
Hamill J at [2]
McNaughton J at [61]

Decision: (1) Grant leave to appeal against sentence.
(2) Allow the appeal.
(3) Quash the sentence imposed in the District Court on 29 August 2024 and in lieu thereof:
(a) For sequence 3, reckless infliction of grievous bodily harm, the applicant is sentenced to a non-parole period of 1 year and 6 months commencing on 29 August 2024 and expiring on 28 February 2026. There will be a balance of term of 1 year expiring on 28 February 2027.
(b) For sequence 4, common assault, the applicant is sentenced to a fixed term of 3 months imprisonment commencing on 29 August 2024 and expiring on 28 November 2024.
(c) The applicant will be eligible for release to parole at the expiration of the non-parole period.

Catchwords: CRIMINAL LAW – sentencing – reckless infliction of grievous bodily harm – appeal against sentence – uncontested evidence of frontal lobe damage, cognitive impairment and post-traumatic stress disorder and/or depressive illness – submissions made on relevance to moral culpability and general deterrence – robust exchange but submissions not withdrawn – where sentencing judge found on balance that mental health issues played some role in commission of the offence – absence of engagement with relevant principles conspicuous – appeal upheld and offender re-sentenced

Legislation Cited: Crimes Act 1900 (NSW), s 35
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44

Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Crane v R [2024] NSWCCA 87
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Luque v R [2017] NSWCCA 226
Moiler v R [2021] NSWCCA 73
R v Champion (1992) 64 A Crim R 244
R v Engert (1995) 84 A Crim R 67
R v Israil [2002] NSWCCA 255
R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep)
R v Scognamiglio (1991) 56 A Crim R 81
Ryan v Regina [2017] NSWCCA 209
Testici v R [2025] NSWCCA 88
YM v R [2023] NSWCCA 75
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited: N/A

Category: Principal judgment

Parties: Simons Szymon Stobinski (Applicant)
Rex (Respondent)

Representation: Counsel:
K Averre and R Thomas-Dubler (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Smythe Wozniak Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00131958

Publication restriction: N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal against the sentence imposed on him in the District Court on 29 August 2024 for one count of recklessly inflicting grievous bodily harm and one count of common assault. There was a further offence of common assault taken into account in sentencing. The applicant pleaded guilty in the Local Court and received a 25% sentencing discount. The applicant was sentenced to an aggregate term of 3 years and 4 months imprisonment, with a non-parole period of 2 years. The sentencing Judge nominated the indicative sentences as 3 years and 4 months, and 3 months respectively. The sentences were, notionally at least, entirely concurrent.

The applicant was sitting on Progress Avenue in Eastwood on an elevated part of the footpath accessed by a staircase drinking from a glass bottle while talking and gesturing. The victim began filming the applicant as he walked across the road towards him and the two men got into a dispute. The victim approached the applicant who violently shoved him down the stairs, causing really serious injuries including a displaced fracture of his right hip, a dislocated femoral head (right hip) and a minimally displaced fracture of the anterior calcaneal bone in his right ankle.

The applicant tendered medical and psychological evidence on sentence, as well as character references and certificates of attendance at short courses aimed at rehabilitation. The solicitor appearing for the applicant at first instance made submissions as to the relevance of the applicant’s mental health to the question of sentence with reference to well-established principles. It was submitted the applicant’s moral culpability was diminished and that deterrence had a less significant role in the sentencing exercise. It was also submitted that the applicant’s mental health issues would make incarceration more onerous, contributing to a finding of special circumstances.

The applicant sought leave to appeal against the sentence imposed on a single ground asserting that the sentencing Judge erred in his consideration and evaluation of the applicant’s mental health.

The Court held, granting leave to appeal, allowing the appeal and exercising the sentence discretion afresh (per Hamill J, Davies and McNaughton JJ agreeing):

1. The absence of any engagement with the relevant principles after finding on balance that the applicant suffers from mental health issues, a brain injury and physical ailments which negatively impacted on his decision making and contributed in some way to the offending is conspicuous. There was no explanation provided as to why the applicant’s mental health issues, brain injury or cognitive functioning did not diminish his moral culpability or impact on the weight to be afforded to deterrence. The cases make it clear that as to the latter matter, no causal link or finding of material contribution is required: [42]-[44] per Hamill J (Davies J agreeing at [1] and McNaughton J agreeing at [61]).

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, R v Israil [2002] NSWCCA 255, R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep), R v Scognamiglio (1991) 56 A Crim R 81, R v Champion (1992) 64 A Crim R 244, Ryan v Regina [2017] NSWCCA 209, Luque v R [2017] NSWCCA 226, Moiler v R [2021] NSWCCA 73 and Crane v R [2024] NSWCCA 87 applied. Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 distinguished.

2. The failure to allude to the relevant legal principles or explain why they did not apply in circumstances where the sentencing Judge found, on uncontested evidence, that the applicant suffered from relevant mental health conditions constituted a material error in the sentencing judgment: [46] per Hamill J (Davies J agreeing at [1] and McNaughton J agreeing at [61]).

YM v R [2023] NSWCCA 75 applied.

3. It is necessary to exercise the sentencing discretion afresh. The applicant’s moral culpability is slightly reduced, based on the evidence of his brain injury and psychiatric condition, and slightly less weight is given to general deterrence because the applicant’s impulsivity and emotional regulation were impacted by his psychiatric and cognitive issues. There is a finding of special circumstances for the reasons provided by the sentencing Judge: [48]-[55], [57] per Hamill J (Davies J agreeing at [1] and McNaughton J agreeing at [61]).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 applied.

4. The applicant is resentenced to a total effective sentence of 2 years and 6 months, with a non-parole period of 1 year and 6 months: [56]-[59] per Hamill J (Davies J agreeing at [1] and McNaughton J agreeing at [61]).

JUDGMENT

1. DAVIES J: I agree with Hamill J.

2. HAMILL J: Simons Szymon Stobinski (“the applicant”) seeks leave to appeal against a sentence imposed on him by his Honour Judge King SC in the District Court on 29 August 2024. The applicant pleaded guilty in the Local Court to two offences namely (i) recklessly inflicting grievous bodily harm, an offence carrying a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years, and (ii) common assault, an offence with a maximum penalty of 2 years imprisonment. A further offence of common assault was taken into account in sentencing for the first of those offences. The sentencing Judge imposed an aggregate sentence of 3 years and 4 months imprisonment with a non-parole period of 2 years. The Judge applied a sentencing discount of 25% to the indicative sentences in recognition of the applicant’s early plea of guilty. He nominated the indicative sentences as 3 years and 4 months (with a stated starting point of 4½ years) and 3 months respectively. It will be seen that the sentences were, notionally at least, entirely concurrent.

3. The applicant notified and pressed a single ground of appeal, namely that:

“The sentenc[ing] judge erred in his consideration and evaluation of the applicant’s mental health.”

Evidence relevant to sentence tendered by the Prosecutor

Facts of the offences

4. The facts were agreed for the most part, and a statement of agreed facts was tendered on sentence as part of the prosecution bundle (Ex 1). CCTV footage of the incident giving rise to the two counts was also in evidence (Ex 2). Judge King set out the facts in his judgment on sentence and there was no suggestion his Honour erred in doing so. What follows is a brief summary of the facts derived from the agreed facts, the sentencing judgment, the victim impact statement and a review of the CCTV footage and video captured by mobile telephone.

5. On 25 April 2023, the applicant was sitting on Progress Avenue in Eastwood drinking from a glass bottle while talking and gesturing. The CCTV footage shows that he was seated on an elevated part of the footpath that could be accessed by a brick or concrete staircase comprising about six to eight steps. The victim, Steven Lok, was on the other side of the road but heard the applicant say words to the effect of “I will kill the lot of you, you Chinese dog. I will send you all back to China”. The applicant was pointing vigorously before approaching Scott Yee and yelling words to the effect of “What the fuck are you looking at?”. Mr Yee replied, “Go home, you’re drunk”.

6. Mr Lok started to record the incident on his mobile telephone and walked across the road toward the applicant while doing so. The applicant said “Put that away, I’m going to kill you. You’re not allowed to record me” but Mr Lok continued to film him as he approached. The applicant leaned over the railing and slapped the telephone out of Mr Lok’s hand. Mr Lok moved to his right and walked up the stairs towards the applicant. The applicant rushed to the top of the stairs, clenched his fists, and thrust his arms into Mr Lok. The victim fell down the stairs and landed heavily on the pavement below. His hip was dislocated, and he suffered other injuries. He sat on the kerb.

7. Mr Lok used his wife’s ‘phone to call emergency services. The applicant sat down next to him and said, “I can kill the lot of you like dogs, and the pigs won’t even care because you’re not even fuckin’ Aussie”. He then slapped the second telephone out of Mr Lok’s hand, and it fell down a drain. The applicant said, “Get that phone out of your hands, brother, stop lying, brother”. Mr Lok pushed the applicant away and the applicant kicked him in the stomach.

8. Mr Stobinski was restrained by another member of the public and Mr Lok was taken to Ryde Hospital. His injuries included abrasions to his arms, swelling of the second and third fingers on his left hand, a displaced fracture of his right hip and a dislocated femoral head (right hip). He underwent surgery on 27 April 2023 for the hip fracture which required metal plates and screws to be permanently inserted. On 16 May 2023, Mr Lok felt a stabbing pain in his right ankle and presented to the Royal North Shore Hospital where scans revealed he had a “minimally displaced fracture of the anterior calcaneal bone in his right ankle.” Surgery was not required but he was directed to wear a moon boot.

9. Mr Lok provided a victim impact statement in which he described a slow recovery, with a great deal of pain and substantial financial loss. He was originally told he would need a total hip replacement within five years, but his doctors say that this is now unlikely. More than a year after the incident he continued to feel “chronic back pain” because of the “rotated hip”. The injuries have affected his sleep and mood, and he remained angry and resentful at the time of the sentencing hearing.

Arrest and interview with police

10. The applicant was arrested by police later that day near West Ryde. Body worn video recorded him saying, “I didn’t get attacked, he attacked me brother.”

11. He was interviewed at Ryde Police Station and said things that were either false or bizarre or both. For instance, he told police that he was at the Eastwood Shopping Centre that day and saw a lot of “Communist flags” around which was “not right” on Anzac Day. He yelled his frustration, and this angered the victim who “lost the plot” and attacked him by running up the stairs. He told him to fuck off and pushed him, which he later said was “not even a push” but “more like a defensive move”. As Judge King said, the CCTV footage put the lie to this assertion. While Mr Lok had approached and ascended the stairs with purpose, the applicant moved quickly towards him and immediately shoved him forcefully down the staircase. The applicant also claimed he was tending to the victim when another Asian man tried to smash his head on the ground whereupon he kicked that man off him. He said he smacked the ‘phone out of the victim’s hand because he believed the victim was going to hit him with it. He said there was “that many of them”, that he was “the only white guy around” and outnumbered “twenty to one.” He said people were jumping at him from every angle. He agreed that he may have called the victim “a Communist cunt”. He said he had consumed two full strength beers with the last one consumed at 12pm.

The applicant’s criminal history and the Sentencing Assessment Report

12. The applicant presented with a somewhat aged record of violent offending. That included offences of assault occasioning actual bodily harm and assault committed in 1997, and offences of assault and stealing committed in 1998. Those were dealt with in 1998 and 1999 respectively and resulted in supervised bonds for two years. There were some minor assaults in 2001 in relation to which no conviction was recorded, an assault of a police officer in 2001 which resulted in a 100-hour community service order and a similar offence in 2008 dealt with by the imposition of a $200 fine. The applicant committed a common assault in 2014 for which he received a backdated 49-day gaol sentence and offences of assaulting a police officer and common assault in 2014 leading to a 12-month good behaviour bond. Up until that point in 2014, the applicant had also committed a variety of drug, dishonesty and nuisance type offences in relation to which he received a variety of non-custodial penalties.

13. Since 2014 the applicant had a minor record of offences including possession of drugs in 2016 (resulting in a $300 fine), 2018 (a $500 fine and a two-year bond) and 2020 (a 12-month community corrections order). He also had two offences of possessing or attempting to possess a restricted substance and smoking on a train (each of which resulted in small fines). In 2023 he was fined $700 for using a recording device in court premises.

14. A Sentencing Assessment Report prepared by a community corrections officer had some positive aspects, some slightly bizarre ones and raised doubts about the applicant’s ability to respond to supervision. The applicant reported a history of polysubstance abuse since the age of 18 and said in the weeks leading up to the offences he was misusing alcohol in conjunction with his prescription medication. He admitted he was intoxicated at the time of the offence, having consumed a four pack of bourbon mixers along with his pain management medication. Since the incident he had participated in Alcoholics Anonymous and Narcotics Anonymous.

15. He attributed his history of violent offending to a brain injury and substance abuse and said the offence was “a form of reactive aggression”. He said he was “disturbed after witnessing signs of ‘communism’ at the scene.” The author referred to diagnoses of “anxiety, depression and post-traumatic stress disorder” (“PTSD”). Mr Stobinski said he resorted to alcohol due to the decline of his mental health and was suffering from depression due to a relationship breakdown and lack of contact with his children. He described symptoms of PTSD resulting from “escaping from communism” and exposure to news of “the war between Russia and Ukraine” at the time of the incident.

16. The author of the report said the applicant demonstrated “a considerable degree of insight into his offending”, expressed remorse for the victim and “acknowledged the need [to] address his risk factors to avoid further offending.” He had been, and was, willing to continue appropriate intervention to address his offending behaviour. However, his response to supervision (in 2010) was considered to be unsatisfactory due to his sporadic reporting patterns and failure to engage in intervention.

Material tendered by the applicant on sentence

17. The applicant’s case on sentence mostly consisted of medical and psychological evidence, some of which was prepared specifically for the sentencing hearing and some of which related to his application for support under the National Disability Insurance Scheme (“NDIS”). There were also hospital discharge summaries, character references and certificates of attendance at short courses aimed at rehabilitation.

Personal and family history

18. Forensic psychologist Sam Borenstein recorded the applicant’s family history in a report dated 9 or 16 August 2024 [1] and other parts of his history were detailed in other documents tendered on sentence.

19. Mr Stobinski was born in Poland where his father was an engineer and part of the Solidarity and Anti-Communist movement while his mother worked for “the Council and a community centre”. His family moved to Australia when he was seven years of age. The applicant was subject to regular beatings at his father’s hands and his parents divorced when the applicant was 16 after his father viciously assaulted him when he attempted to intervene to protect his mother. He attended several schools and finally completed Year 12 by distance education. At age 14 he was sexually abused by a family friend.

20. He worked as a tiler for eight years before leaving the trade, working as a forklift driver and later for Telstra in sales. His employment history was impacted by his physical ailments, mental health issues and alcoholism. He did not have a current partner but said he had five previous relationships. He had three children and, at the time of the offence, was struggling with the breakdown of his most recent relationship which resulted in him losing access to his children. At the time of Mr Borenstein’s report he was living by himself in public housing not far from his mother.

Psychological and medical evidence

21. Mr Borenstein described the applicant’s report of his medical history as “vague” but said he reported “at least” four head injuries some of which resulted in loss of consciousness. A discharge summary from Westmead Hospital neurosurgical unit relating to an admission in May 2024 referred to a history of frontal lobe damage, previous brain injury and “multiple previous traumas” including a motor vehicle accident (recorded as “MVA”). Scans revealed changes in the left temporal and frontal lobes. There was also evidence of spinal bulging and flattening compromising the nerve roots. A radiology report concluded there was “significant previous trauma involving the left temporal and frontal lobes” and “significant degenerative disc disease at multiple levels.”

22. Mr Borenstein found “no indication of serious psychiatric disorder” manifesting in perceptual disturbance or psychosis but expressed the opinion that the applicant suffered from chronic and severe PTSD (complex type), a recurrent major depressive disorder, anxiety with panic features, brain impairment (frontal lobe and temporal lobe deficiencies), chronic pain and alcohol use disorder (in remission). As to the respondent’s submission that it was “unclear from the evidence as to how this post-traumatic stress disorder came about”, the evidence suggested the PTSD may have arisen from more than one life experience. Mr Borenstein noted that Mr Stobinski reported being physically abused by his alcoholic father and sexually abused when he was 14 years old. There was also evidence that he was involved in more than one motor vehicle collision which resulted in head injuries and brain damage. The Sentencing Assessment Report said “his trauma was impacted from growing up in a household of ‘escaping from communism’, as well as hearing about the ‘war between Russia and Ukraine’ at the time of the incident”. More significant were the applicant’s symptoms which included “vigilance, wariness, fear of recurrence, lack of trust in relationships, a sense of foreshortened future, avoidance, depressed mood and a propensity towards dissociation”.

23. Dr Gopi Ilawala was the applicant’s treating psychiatrist since December 2023. He diagnosed the applicant with “Mixed anxiety and depression” but with a “differential diagnosis” of PTSD, conditions which display “an overlap in the symptoms”. Dr Ilawala’s report was prepared for a different purpose, namely an application to the NDIS, but its brevity does not detract from the diagnoses which were not challenged before the sentencing Judge.

24. The evidence was that the applicant relied upon alcohol as a form of self-medication, which was “contraindicated given the medications Mr Stobinski was taking at the time of the subject offence, and a history of significant brain damage.” Mr Borenstein expressed the opinion that the effects of the applicant’s alcohol consumption in combination with his pain relief medication and brain impairments “impacted negatively on his judgement, decision making, executive functioning and emotional regulation which contributed directly to the offending behaviour”.

25. Mr Borenstein was of the view that the applicant’s mental health would be significantly impacted if a custodial sentence was imposed.

26. Desiree Garwonski was the applicant’s treating psychologist whose report dated 7 November 2023 said that Mr Stobinski had “undertaken behaviour modification therapy of his own volition and at his own expense” since July 2023 to deal with his “complex mental, social and physical problems”. She described his struggles with a relationship breakdown and the loss of access to his children. She said he “battles with pain, limited mobility, confusion and regulation problems and anxiety”. The psychologist was supportive and positive and spoke quite highly of the applicant, although her report was more in the nature of a letter of personal support than a detailed and focused expert report.

27. Maria Mousa provided a report dated 20 May 2024 which detailed the results of psychometric testing using familiar assessment tools such as the Wechsler Adult Intelligence Scale (4th edition). The applicant’s general intellectual functioning was in the borderline range, meaning that his thinking and reasoning abilities exceeded approximately 4% of individuals his age. His working memory was also in the borderline range, being better than only 3% of his peers. The applicant’s processing speed was in the extremely low range, being better than only 0.2% of his peers. Ms Mousa said the applicant’s complex diagnosis and presentation indicated that he required intense support with his daily needs due to challenges he faced in carrying out routine living tasks.

Personal references, certificates and recent attempts at rehabilitation

28. Three character references were tendered on sentence. These acknowledged the offending, spoke highly of the applicant and confirmed his recent relationship breakdown. They described his disappointment at losing contact with his children who were taken into care when his former partner “could not cope” and “DOCS [got] involved”. They also referred to the applicant’s participation in rehabilitation programmes since the commission of the offences on 25 April 2023. He had completed a 10-month rehabilitation program with We Help Ourselves (“WHOS”) and the Salvation Army in Penrith.

29. There were certificates showing the applicant’s recent attendance at the WHOS day program and courses relating to cultural awareness, managing stress and managing anger.

The proceedings, judgment on sentence and consideration of the single ground of appeal

30. For the purpose of determining the single ground of appeal, it is unnecessary to recount in detail the sentencing judgment which was delivered ex tempore by Judge King SC following the hearing of submissions in the morning and a luncheon adjournment.

Submissions made at first instance

31. The solicitor appearing for the applicant on sentence made submissions as to the relevance of the applicant’s mental health problems to the question of sentence. He referred to this Court’s judgment in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“DPP v De La Rosa”). The Judge was taken to the detail of the evidence, the timing of the reports and the purpose for which they were obtained. It is fair to say that the Judge applied a critical eye to the evidence and expressed some views in argument that are not reflected in the sentencing judgment. It is unnecessary to dwell on the interaction between the bench and the bar table, but the solicitor seemed to back away from – but not withdraw – submissions about moral culpability in the following part of the robust exchange:

“HIS HONOUR: That just ends up with what she states in her report.

CANDELORI: Coupled with that--

HIS HONOUR: Sorry, please don’t interrupt me.

CANDELORI: I’m sorry. I didn’t mean to cut across you.

HIS HONOUR: As being that:

‘His verbal comprehension is in the average range, his perceptual reasoning is below average or the lower average, his working memory is borderline range and his processing speed is extremely slow. His cognitive ability as estimated by the WAIS IV is in the borderline range.’

That does not to me seem to explain his conduct on this occasion at all or excuse it.

CANDELORI: I don’t seek to have it excused but it goes to the other--

HIS HONOUR: Or ameliorate his moral culpability for what he did.

CANDELORI: For which he has taken responsibility by his plea of guilty.

HIS HONOUR: He’s taken responsibility by way of the plea but that’s in the circumstances where it’s recorded by way of a video that no doubt he was aware of by the time they interviewed him.

CANDELORI: Coupled with those afflictions, the mental afflictions, ultimately your Honour then has to move to the other physical ailments as well.

HIS HONOUR: What do you say is the relevant mental affliction that you’re talking of in general terms?

CANDELORI: The PTSD and the anxiety and--”

32. When questioned about deterrence the solicitor said:

“CANDELORI: Only to the extent your Honour gets to a finding that his mental illness issues that I’ve raised earlier don’t result in your Honour applying the De La Rosa considerations, whereas I respectfully submit that they do get to a level where they do moderate general and specific deterrence.”

33. He also submitted that the evidence of the applicant’s medical and mental health conditions would make incarceration more onerous and that would “feed into ... a finding of special circumstances”.

Findings concerning the applicant’s mental health

34. Relevant to the ground of appeal, his Honour made the following observations (with italics in the original but otherwise with my emphasis):

“…Mr Borenstein said that Mr Stobinski’s diagnosis:

‘...is that of chronic and severe post-traumatic stress disorder (complex type); recurrent major depressive disorder; anxiety with panic features; brain impairment, namely frontal lobe and temporal lobe deficiencies; chronic pain and alcohol use disorder, currently in remission.’

He otherwise states that on examination:

‘...there was no indication of serious psychiatric disorder, eg, psychosis; thoughts for content and form were normal. There is no evidence of perceptual disturbance, e.g., delusions, hallucinations, ideas of reference or feelings of passivity. Mr Stobinski presents as cognitively intact.’

Mr Borenstein administered the personality assessment screen, which measures potential problems in respect of mental health, and states that the offender had a score which indicates, ‘marked potential for emotional and/or behavioural problems of clinical significance’. That appears to be relevant to what happened on this occasion. There was certainly an emotional and/or behavioural outburst, and certainly of significance.

I note there is a report from a psychotherapist, Desiree Gawronski, seemingly attributing his conduct to some degree to the fact that the offender is of Polish extraction and that what was happening in eastern Europe in relation to Russia and Ukraine had somehow triggered feelings of hurt, frustration and anger; that he was distressed because someone had started filming him, and ‘**…from this point on, the situation resulted in some aggression between several parties which can best be examined and substantiated by the video footage’. She states that according to the medical reports which she has been provided with, he suffers from brain damage which affects his capacity to think clearly, remember things, process information and control his emotions.

I accept that he has brain injuries arising from, no doubt, the motor vehicle accidents, and provided on his behalf is an MRI scan which provides information in respect of an MRI scan of his brain which has the conclusion:

*‘*Significant previous trauma involving the left temporal and frontal lobes; large loculated collection over the left tempero frontal lobes measuring more than 6 x 2.2 x 10 cm. It does not cause mass effect; small T5 syrinx; significant degenerative disc disease at multiple levels; marked degenerative changes at L4-L5 and L5-S1, including a large left sided disc extrusion on the left side of L4-L5.**’

The latter part of the report relates to spinal problems, the offender is apparently suffering from Scheuermann’s disease, being a juvenile disease of osteochondrosis, resulting in postural deformity.

There is nothing contained in any of the reports which suggests the cause of him suffering from PTSD, unless it can be inferred from the fact that he has been involved in a number of motor vehicle accidents. Mr Borenstein appears to have operated on the basis that he was told by the offender that he had been diagnosed with it, and then, accordingly, confirmed that in his opinion that he had PTSD, as far as I can see from his report.

I will accept on the balance of probabilities that he has suffered from PTSD, just as I have accepted that he has some resultant brain injury from the motor vehicle accidents, and that he suffers from the various ailments that are referred to, including Scheuermann’s disease, and that these create problems for him in terms of motion, also negatively impacting on his decision making, including executive functioning and emotional regulation. The extent to which these contributed directly to his offending behaviour, I am unable to ascertain from the reports before me, but I would on the balance accept that there was some contribution to this bizarre offending.

The offender, at least since the time of this offending, has made some efforts to assist himself. He has attended on Desiree Gawronski for psychotherapy in July 2023 for nine sessions up to November of 2023. He commenced a number of programs through The Salvation Army Foundations Program commencing on 21 July 2023, and I note the certificates of completion of the Foundations Connect module on 14 November 2023, the Grow modules on 29 February 2024. Also, his participation with the NGO Training Centre for a course involving Cultural Awareness in June of 2024; the WHOS Penrith Day Program on 19 April 2024; and Managing Anger through Relationships Australia, being an eight-week program completed between May and July 2024; and with the same organisation, Managing Stress, a four-week program between early March and late March.

Accordingly, I accept that post the offending the offender has made an effort to address issues that are relevant to his offending. It is difficult in the circumstances to determine whether or not to any degree the offender is simply attributing his offending to substance abuse, alcohol, mental health and impulsivity to aggression associated with his brain injury, as a means to mitigate sentence, or whether these are, in fact, relevant matters mitigating the seriousness of his offending.

Alcohol, of course, cannot be taken to reduce his moral culpability. It may be an explanation to some degree for his conduct, but it does not excuse it, and of course, he has given inconsistent accounts as to how much he had consumed. Two beers by midday, or a six-pack as referred to by Mr Borenstein, or a four-pack of bourbon mixers as referred to in the Sentencing Assessment Report where it is stated:

‘Mr Stobinski admitted to being intoxicated from consuming a four-pack of bourbon mixers, as well as his pain management medication prior to the incident.’”

35. As to the structure of the sentence, the length of the non-parole period, and s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour said:

“Accordingly, I will impose a sentence, having found special circumstances, acknowledging the efforts that the offender has made, that he may have some difficulty in serving a prison sentence, and his need for an extended period of rehabilitation, and supervision to achieve that, I specify a non-parole period of two years with a balance of term of one year, four months. So, the total sentence is three years, four months commencing today 29 August 2024.”

The relevant principles and submissions on appeal

36. The reference in the submissions at first instance was a reference to the judgment of McClellan CJ at CL in DPP v De La Rosa where his Honour summarised the relevant principles as follows:

“177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public*: R v Lawrence* (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

178 I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

37. This passage has been cited and applied on many occasions since it was published in 2010 and was relied on by counsel for the applicant to submit that the sentencing Judge erred in failing to consider how his Honour’s findings enlivened the principles confirmed by the Chief Judge. A similar statement of the relevant principles may be found in the judgment of Spigelman CJ in R v Israil [2002] NSWCCA 255 upon which McClellan CJ at CL relied in DPP v De La Rosa*.* The Chief Justice, with whom Simpson and Blanch JJ agreed, said:

“21 The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294.

22 In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.

23 To the extent that mental illness explains the offence – as her Honour found to be the position in the present case – then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]:

‘… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.’

24 I agree with the observations of Malcolm CJ in Lauritsen at [48]:

‘… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence.’

25 Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it:

‘… specific deterrence may be more difficult to achieve and is often not worth pursuing as such.’ (Tsiaras, supra, at 400)

26 Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). However in Lauritsen at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued.

27 Difficulties arise where there is an element of congruence of drug addiction and mental illness, in separating the effect of mental illness, see e.g. R v Alexander (2000) 118 A Crim R 350, esp at [41]-[45]; R v Pavlov [2001] NSWCCA 13 at [46]-[47].”

38. Stepping back further in time, the following observation by Badgery-Parker JA, with whom Gleeson CJ and Sheller JA agreed, in R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep) continues to resonate:

“The principle then is clear enough. It is correctly stated as follows – that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in a case of an offender suffering from a mental disorder or severe intellectual handicap.”

39. Generally, and by way of example, see also R v Scognamiglio (1991) 56 A Crim R 81 at 85-86, R v Champion (1992) 64 A Crim R 244 at 255-256, Ryan v Regina [2017] NSWCCA 209 at [15], Luque v R [2017] NSWCCA 226 at [82]-[84], [114], Moiler v R [2021] NSWCCA 73 at [59] and Crane v R [2024] NSWCCA 87 at [68]-[72].

40. Mr Averre submitted that the sentencing Judge, having accepted the applicant had a relevant mental health condition and that it contributed to the “bizarre” offending, failed to engage with these well settled principles and erred in failing to consider the issue in assessing the applicant’s moral culpability and tempering the weight to be afforded to general deterrence. It is correct, as Mr Averre submitted, that nowhere in the sentencing judgment is there any discussion of how the findings impacted on an assessment of the applicant’s moral culpability or on the weight afforded to principles of deterrence. Mr Averre acknowledged the difficulty in “unpacking” the impact of the applicant’s consumption of alcohol and his intoxication at the time of the offence. He also accepted that the principles are not “absolute” and that there is no automatic consequence that follows from the presence or absence of such a condition: see, for example, R v Engert (1995) 84 A Crim R 67 at 68.

41. The respondent emphasised that the judgment was published ex tempore and submitted that Judge King did not apply the principles because he did not consider the various mental health issues made a “material” contribution to the offending. The respondent stressed that there was no presumption that a reduction in moral culpability exists simply because an offender is shown to have a relevant intellectual or psychiatric disability. It was also submitted that his Honour did take the condition into account by reducing the non-parole period. Finally, it was submitted that “the evidence and issues were not put before the sentencing judge in a manner enabling him to make the findings now sought on appeal”: cf Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [75]-[81].

Resolution of ground of appeal

42. I am unable to accept that the decision in Zreika v R has any application in the circumstances of the present case. There was a body of evidence tendered to prove the applicant’s long standing mental health issues and his solicitor made, or attempted to make, submissions on each of the matters canvassed in the authorities to which I have referred at [36]-[39]. Contrary to the implication in the respondent’s written submissions, the solicitor appearing for the applicant in the District Court did not rely on DPP v De La Rosa solely in relation to the issue of deterrence and, despite the reception his submissions received, did not withdraw his submissions concerning moral culpability.

43. It is true that the judgment was delivered ex tempore, but the absence of any engagement with the relevant principles is conspicuous.

44. Had the sentencing Judge been inclined to disregard the impact of the applicant’s psychological struggles because of a fine distinction between the word “contributing” and the phrase “materially contributing”, it is to be expected that his Honour would say so. Rather, having accepted “on the balance” that “there was some contribution to this bizarre offending” his Honour did not again refer to the applicant’s mental health issues, brain injury or cognitive functioning. No explanation was provided as to why these did not diminish the applicant’s moral culpability or impact on the weight to be afforded to deterrence, whether general or specific. As to the latter matter, the cases make it clear that no causal link or finding of material contribution is required.

45. As to the reduction of the non-parole period, his Honour did not say that the applicant’s mental health formed the basis of the finding of special circumstances. The applicant also has physical ailments that would make his time in custody more onerous. It may be accepted that in some cases a reduction in the non-parole period will be sufficient recognition of the impact that a custodial sentence will have on a physically or psychologically infirm offender: see, for example, the recent decision in Testici v R [2025] NSWCCA 88 at [99], [135] and [144]. However, speaking generally, the matters referred to in cases like DPP v De La Rosa are relevant both to the total sentence and to the non-parole period, although the sentencing court will be anxious not to engage in so-called “double counting” while understanding that the impact on the non-parole period and total sentence may be different.

46. The failure to allude to the relevant legal principles or to explain why they did not apply in circumstances where the Judge found, on uncontested evidence, that the applicant suffered from relevant mental health conditions, constituted a material error in the sentencing judgment. In terms of the application of relevant principles, the case has similar features to this Court’s decision in YM v R [2023] NSWCCA 75 where Sweeney J (with whom Kirk JA and Walton J agreed) concluded at [68]:

“Her Honour’s statement that the Applicant’s complex psychiatric history, though having ‘some connection’ with his offending, did not play ‘any real part in a proper assessment of his moral culpability’ demonstrates error in that her Honour’s conclusion was not supported by reasoning, did not deal with the arguments put, and in that way failed to take into account a material consideration. Her Honour failed to consider the effect of the Applicant’s documented and diagnosed mental disorders on his moral culpability, and failed to consider whether general deterrence should be given less weight in sentencing him because he was a less appropriate person to make an example of to others, because his mental disorders contributed, to some extent, to his offending. In not considering the effect of her finding that there was some connection between the Applicant’s conditions and his offending in respect of his moral culpability and the weight to be given to general deterrence in sentencing him, her Honour erred in the exercise of her sentencing discretion.”

47. The single ground of appeal is established.

Whether a less severe sentence was warranted and ought to be imposed

48. It is necessary to exercise the sentencing discretion afresh in accordance with the decisions of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] and Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. Both parties tendered additional material on “the usual basis”: Betts v The Queen at [4], [46], [52].

49. No real issue was taken with Judge King’s assessment of the objective gravity of the s 35 offence. He described the injury suffered by Mr Lok as falling “into the mid-range of objective seriousness for grievous bodily harm”. The incident occurred over a short period of time but was instigated by what Judge King described as “belligerent and aggressive racism”. I agree with the sentencing Judge’s rejection of the suggestion that there was a degree of provocation on the part of Mr Lok. It is true he approached the applicant while filming and then continued up the stairs, but his conduct was responsive to the applicant’s disgraceful behaviour. This was a serious offence, falling perhaps in the lower mid-range for all offences under s 35.

50. I agree with the approach taken by Judge King to the common assault offence; that is, a wholly concurrent sentence is appropriate. I would not impose an aggregate sentence but simply impose two separate sentences to commence on the same date and to be served concurrently. The matter on the Form 1 has little overall impact on the sentence for the offence in sequence 3, given the gravity of the latter offence and the fact that the three offences were part of a single course of conduct that played out over a period of a couple of minutes. It is correct to say that the Form 1 offence increases the need for specific deterrence and retribution: Attorney-General*’*s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [42]; [2002] NSWCCA 518.

51. There is a modest diminution in the applicant’s moral culpability based on the evidence of his brain injury and psychiatric condition, whether it be properly labelled as PTSD or a depressive disorder. Either way, these conditions were said to impact on his impulsivity and ability to control his emotions. It is clear that alcohol played a significant part in this offending and that this provides no mitigation at all. However, I accept that part of the applicant’s resort to alcohol has been an ill-advised attempt to self-medicate in response to his anxiety, depression and/or PTSD. His decision making in this respect was probably impacted by his cognitive functioning resulting from past head injuries.

52. The applicant’s criminal record disentitles him to very much leniency, but the absence of offences of violence for over 10 years provides some encouragement. Similarly, like Judge King, I would commend Mr Stobinski’s efforts at rehabilitation and engagement with programmes since the offences on 25 April 2023. This bears out the opinions expressed in the Sentencing Assessment Report that he has demonstrated some insight into his offending behaviour and its impact on the victim.

53. The material tendered on re-sentence suggests that, as much as is possible in a custodial setting, the applicant has continued to make efforts towards rehabilitation. I accept the respondent’s submission, based on the affidavit it filed, that Justice Health has done its best to provide appropriate treatment to the applicant and that his complaints in that regard cannot be accepted at face value, even if they are made in earnest. Even so, the evidence does support that his physical ailments make his time in custody more onerous. There is also a concern that he may lose his public housing, and the Legal Aid Commission is assisting with this. While this is a significant matter, a sentencing court cannot fashion its sentencing orders around the current status of an offender’s application to Homes NSW. Obviously, it will be better for his rehabilitation and the community generally if his accommodation remains available upon his release. However, the non-parole period I propose will be some months beyond the current “abatement” period agreed to by Homes NSW. One would hope it would be extended.

54. Because of the devastating impact of this crime on Mr Lok, no sentence other than one of imprisonment is appropriate in the circumstances: C**rimes (S**entencing Procedure) Act, s 5. As Mr Averre acknowledged in oral argument, events have overtaken the need to consider the imposition of an intensive correction order.

55. In deciding on the term of the sentence I would give slightly less weight to general deterrence because the applicant’s impulsivity and emotional regulation were impacted by his psychiatric and cognitive issues and he is a less suitable vehicle through whom to send messages of deterrence. However, the need for adequate punishment and appropriate recognition of the harm suffered by the victim means that the sentence must be a stern one.

56. For the offence of reckless infliction of grievous bodily harm, and taking into account the common assault on the Form 1, I would commence with a sentence of 3 years and 4 months (being 40 months). The applicant is entitled to a sentencing discount of 25% (10 months) and so the head sentence for that offence would be 2 years and 6 months.

57. I would find special circumstances for the same reasons as Judge King which are set out at [35] above. The non-parole period will be around 60% of the head sentence which is the same proportion settled upon by the sentencing Judge. I would set a non-parole period of 1 year and 6 months.

58. For the offence of common assault, I would impose a fixed term of 3 months, deriving from a starting point of 4 months with a 25% sentencing discount. That sentence would be wholly concurrent with the sentence for the reckless infliction of grievous bodily harm offence.

59. Accordingly, I would impose a total effective sentence of 2 years and 6 months with a non-parole period of 1 year and 6 months.

Orders

60. I would make the following orders:

61. Grant leave to appeal against sentence.

62. Allow the appeal.

63. Quash the sentence imposed in the District Court on 29 August 2024 and in lieu thereof:

(a) For sequence 3, reckless infliction of grievous bodily harm, the applicant is sentenced to a non-parole period of 1 year and 6 months commencing on 29 August 2024 and expiring on 28 February 2026. There will be a balance of term of 1 year expiring on 28 February 2027. (b) For sequence 4, common assault, the applicant is sentenced to a fixed term of 3 months imprisonment commencing on 29 August 2024 and expiring on 28 November 2024. (c) The applicant will be eligible for release to parole at the expiration of the non-parole period.

61. McNAUGHTON J: I agree with Hamill J.

**********

Endnote

It bears the earlier date on the first page and the later date on the header to subsequent pages.