Citation: R v Velisavljevic [2019] NSWDC 782
Court: District Court of New South Wales
Date: 17 December 2019
Judge: M L Williams SC DCJ
Background
The offender, a 40-year-old man, pleaded guilty to one count of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW), which carries a maximum penalty of seven years imprisonment and a standard non-parole period of three years. The charge arose from an incident in the early hours of 28 January 2017 at a housing commission complex in Surry Hills, during which the victim sustained a stab wound to the left side of the neck.
The Crown's case was that the offender burst into a unit demanding the return of his mobile phone, then stabbed the victim with a kitchen knife. The offender contested several elements of that account, including whether he had been inside the unit at all, whether a knife was used, who was present, and whether the wound resulted from a ring he was wearing rather than a blade.
The matter had originally proceeded toward a trial on the more serious charge of wounding with intent under s 33, before the Crown accepted a guilty plea to the reckless wounding count in full satisfaction of the indictment. The sentence proceedings therefore included a disputed facts hearing.
Legal Issues
- What facts could be established to the requisite standard for the purposes of sentencing, given the absence of key witnesses including the victim?
- What was the objective seriousness of the offence?
- To what extent did the offender's mental illness, substance use disorder, and personal history reduce his moral culpability, consistent with the principles in DPP (Cth) v De La Rosa and R v Bugmy?
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence.
Decision
Disputed facts. The court conducted a hearing to resolve the factual disputes but was hampered by the non-appearance of two key witnesses: the victim (who could not be produced despite arrangements for either a video link or attendance in person) and another witness who had been present in the unit. Because neither was available for cross-examination, the Crown did not press their statements into evidence. The court relied on the evidence of Troy Firth, who gave consistent oral evidence that the offender entered the unit and lunged at the victim with what appeared to be a knife, and Inspector Beckinsale, who described observing the offender apparently concealing an object in the bathroom shortly after the incident. The court accepted that the incident occurred inside the unit. The anticipated argument of excessive self-defence was not ultimately pursued by the defence.
Objective seriousness. The court characterised the offence as objectively serious but below the mid-range. It was largely unprovoked: even accepting the offender's belief that the victim had taken his medication, that belief did not constitute a reasonable basis for the response. The wound measured 1 to 2 centimetres and penetrated to subcutaneous tissue, and there was no evidence of significant lasting injury beyond the wound itself.
Subjective factors and moral culpability. The court gave weight to the offender's diagnosed anxiety disorder, substance use disorder (involving cocaine and Xanax), and personality disorder, which his treating psychiatrists identified as contributing to the offending. Applying the principles from De La Rosa and Bugmy, the court found that moral culpability was somewhat reduced, though the offender plainly retained responsibility for his actions. The late guilty plea and expressions of remorse were acknowledged. The court accepted that the offender's disorderly social circumstances and periods of imprisonment had made compliance with psychiatric treatment difficult, but noted that he had consistently engaged honestly with his treating psychiatrist and had attempted to comply with his treatment regime.
Special circumstances. The court found special circumstances, warranting a non-parole period shorter than the statutory standard proportion. This reflects the sentencing court's assessment that the offender's need for ongoing psychiatric support and rehabilitation in the community justified a longer parole period than would ordinarily apply.
Orders Made
- The offender is convicted of the offence of reckless wounding.
- A sentence of imprisonment of three years and two months, commencing 17 December 2017, is imposed.
- A non-parole period of two years, expiring 16 September 2019, is imposed, making the offender eligible for release to parole on the date of sentence.
- Special circumstances are found.
Note: The judgment records that these remarks were delivered ex tempore and revised without access to the court file.
Key Takeaways
- The District Court resolved a contested facts hearing in circumstances where key witnesses, including the victim, were unavailable for cross-examination. Their untendered statements were excluded, and findings rested on the witnesses who did give oral evidence.
- Where a defence of excessive self-defence is raised but not ultimately supported by the offender's own evidence, a sentencing court will not treat it as a live issue when assessing the facts.
- Applying De La Rosa and Bugmy, the court reduced the offender's assessed moral culpability to reflect the contribution of diagnosed mental illness and substance use disorder to the offending, without eliminating that culpability entirely.
- A finding of special circumstances permitted a longer supervision period on parole, reflecting the court's view that extended community-based psychiatric treatment was appropriate for this offender.
- The absence of significant lasting physical injury to the victim was treated as relevant to placing the offence below the mid-range of objective seriousness, even where the wounding itself involved a knife and occurred in a confrontational context.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33 (wounding with intent), s 35(4) (reckless wounding)
Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Bugmy (2013) 249 CLR 571