AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 30 March 2023

R v Kovaleff

[2023] NSWSC 302

Assault & violenceHomicide
CRIME SENTENCING MURDER AND MALICIOUS WOUNDING AGGRAVATING AND MITIGATING FACTORS YOUTH OF OFFENDER YOUTH OF VICTIMS

Citation: R v Kovaleff [2023] NSWSC 302
Court: Supreme Court of New South Wales
Date: 30 March 2023
Judge(s): Rothman J

Background

The offender pleaded guilty to two offences arising from events on 18 December 2020 in Parramatta: the murder of a 17-year-old victim (referred to by the pseudonym LD), and wounding with intent to cause grievous bodily harm to a second victim (referred to by the pseudonym AK). The two victims were best friends. The wounding victim was in an intimate relationship with the offender at the time.

The agreed facts revealed significant premeditation. A month before the offences, the offender sold his phone to purchase equipment intended for use in the attacks and their aftermath. A week before, he took the wounding victim to a lodge with rope and a knife, having intended to kill her that night. After learning she and the deceased would be at a hotel the following week, he changed his plan to kill both victims together. He also conducted internet searches about weapons, nail guns, and large luggage, and purchased duct tape, rope, and a hand saw.

On 18 December 2020, the deceased had booked a hotel room at Meriton Apartments in Parramatta to celebrate her upcoming 18th birthday. The offender attended and carried out the offences. He gave evidence at sentencing, including that he killed the deceased because he wanted to be alone with the wounding victim.

  • How to assess the objective seriousness of each offence within the range of conduct those offences encompass
  • What weight to give the standard non-parole periods as guideposts (25 years for murder of a victim under 18; 7 years for wounding with intent)
  • How to balance the aggravating factor of extensive premeditation against mitigating factors, particularly the offender's youth
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • How to apply the principle of totality when sentencing for two serious offences committed on the same occasion

Decision

Rothman J outlined the sentencing process in detail, noting that even for the most serious offences, the court must place the offending within a range of seriousness rather than assuming the maximum is warranted. The standard non-parole periods served as guideposts rather than fixed outcomes, and the court was required to synthesise both the objective circumstances of the offences and the subjective circumstances of the offender.

On objective seriousness, the judge treated the murder as highly serious, given the extensive and calculated premeditation: the offender had planned to kill over an extended period, purchased equipment specifically for that purpose, attempted a prior attack at the lodge, and researched methods and means. These factors weighed heavily in the assessment.

On subjective circumstances, the youth of the offender was treated as a significant mitigating factor. Consistent with the approach in BP v The Queen, the court found that youth bears on moral culpability and capacity for rehabilitation. The court found special circumstances existed, principally on account of the offender's youth, which justified adjusting the ratio of non-parole period to head sentence below the statutory default. The youth of the victims also operated as a statutory aggravating factor.

On totality, the court noted that because each offence was assessed separately without reference to the other, there was a greater need for some accumulation of the sentences. The murder sentence was set to commence after the non-parole period for the wounding offence had been served.

Orders Made

  • For the wounding offence (s 33(1)(a), Crimes Act 1900): imprisonment with a non-parole period of 4 years and 9 months commencing 19 December 2020, concluding 18 September 2025, with a further term of 2 years concluding 18 September 2027
  • For murder (s 18(1)(a), Crimes Act 1900): imprisonment with a non-parole period of 24 years commencing 19 December 2022, concluding 18 December 2046, with a remainder of 10 years concluding 18 December 2056
  • First eligible for release on parole: 19 December 2046
  • The offender was advised of the application of s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), and the court directed his legal representatives to explain the significance of that provision to him

Key Takeaways

  • Even in cases of murder, sentencing courts must assess objective seriousness within the full range of conduct the offence can encompass, rather than treating all murders as equivalent or assuming the maximum is warranted.
  • Extensive and calculated premeditation, sustained over weeks and involving deliberate preparation, operates as a significant aggravating factor in assessing where on the scale of seriousness an offence falls.
  • Under the sentencing framework confirmed in BP v The Queen, youth is a recognised mitigating factor that affects moral culpability and prospects for rehabilitation, and can justify a finding of special circumstances affecting the non-parole period ratio.
  • Where two serious offences are sentenced separately and assessed independently, the principle of totality may require a greater degree of accumulation rather than concurrency.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) applied to these offences, and the Supreme Court noted its existence on the record as required by s 25C(1).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25F(2), Division 1A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases:
- BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159