Citation: R v Krajnovic [2024] NSWDC 333
Court: District Court of New South Wales
Date: 8 August 2024
Judge: Fitzsimmons SC DCJ
Background
On New Year's Eve 2022, the offender and a co-offender became involved in a street altercation in Woonona. During the incident, the offender stabbed the primary victim in the abdomen and the back of the head while that victim was wrestling with a co-offender. The abdominal stab wound caused a serious liver injury requiring multiple surgeries, removal of the gallbladder, and hospitalisation for nearly six weeks, including a significant period in intensive care.
The offender also swung a knife at a second victim who had tried to intervene, causing a deep laceration to his left arm. The offender later attempted to conceal his involvement by washing blood from his hands and face and disposing of clothing, before being arrested on 5 January 2023. He gave an electronically recorded interview in which he admitted involvement but claimed self-defence of his co-offender.
The offender pleaded guilty at Wollongong Local Court in September 2023 to two charges: causing grievous bodily harm with intent (in relation to the stabbing victim), and reckless wounding in company (in relation to the second victim). He remained in custody from the date of his arrest.
Legal Issues
- What weight should be given to a guilty plea, a lengthy criminal history, mental health considerations, and background disadvantage (known as "Bugmy factors") in setting the sentence?
- Whether an expert medical report (Dr Bateman's orthopaedic report) should be admitted, where it proceeded on assumptions inconsistent with the agreed facts and the contemporaneous hospital records.
- How to apply the parity principle in light of the sentences imposed on co-offenders.
- How to apply the totality principle when fixing an aggregate sentence for two offences against two different victims arising from a single episode of offending.
Decision
Rejection of the expert report: The court rejected the tender of the Crown's orthopaedic expert report from Dr Bateman. The report incorrectly assumed the victim had been stabbed in a defensive act, contrary to the agreed facts, which recorded that the offender swung a knife at the victim and that a subsequent fracture was caused by a co-offender using a piece of wood. The report also referenced nerve damage that did not appear in the hospital records. Because the opinion rested on a fundamentally incorrect factual premise, the court found it unreliable and inadmissible.
Indicative sentences: For the grievous bodily harm offence, the court identified a base sentence of approximately 8 years and applied a 25% discount for the guilty plea, arriving at an indicative sentence of 6 years with a non-parole period of 3 years and 9 months. For the reckless wounding in company offence, the court arrived at an indicative sentence of 3 years with a non-parole period of 1 year and 10 months, after the same discount was applied to a base sentence of 4 years.
Totality and parity: In fixing the aggregate sentence, the court applied the totality principle to ensure the combined sentence was not crushing and did not amount to double punishment for what was, in substance, a connected episode of offending over a short period. The court noted that, while some accumulation was warranted given there were two victims, the underlying factual commonality reduced its role. The court also had regard to the sentences received by co-offenders to ensure parity was maintained.
Mitigating and aggravating factors: The court took into account the offender's lengthy criminal history as an aggravating factor, while giving weight to his background disadvantage and mental health under the principles in Bugmy v The Queen. A guilty plea discount of 25% was applied. The victim impact statement from the primary victim, who described severe ongoing physical, psychological, and financial consequences, was considered in assessing the harm caused.
Orders Made
- The offender was convicted of both offences following his guilty pleas.
- An aggregate sentence of 7 years imprisonment was imposed, expiring 4 January 2030.
- A non-parole period of 4 years and 3 months was set, expiring 4 April 2027.
- The earliest date of eligibility for parole is 4 April 2027.
- The sentence was backdated to 5 January 2023, the date of arrest.
Key Takeaways
- Expert evidence tendered at sentencing must be based on facts consistent with the agreed facts and contemporaneous records; where a report proceeds on a fundamentally incorrect factual premise, the court may reject it even without a formal Crown application to reopen.
- The totality principle requires a sentencing court to ensure that an aggregate sentence is proportionate to the overall criminality involved, particularly where offences arise from a single episode and share underlying factual commonality across victims.
- Bugmy factors, including background disadvantage and mental health difficulties, remain relevant mitigating considerations even for offenders with lengthy criminal histories, though their weight may be moderated by the severity of the offending and the criminal record.
- A 25% discount for a guilty plea entered at an early stage was applied consistently across both charges, reflecting the utilitarian value of the pleas in proceedings of this kind.
- Parity with co-offenders is a relevant consideration in determining aggregate sentences, requiring the sentencing court to examine what sentences were imposed on those who participated in the same episode of offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21A(2)(g), 53A
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Green v R; Quinn v R (2011) 244 CLR 462
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Hall v R [2021] NSWCCA 220
- Baden v R [2020] NSWCCA 23
- DC v R [2023] NSWCCA 82
- DH v R [2022] NSWCCA 200
- Giles-Adam v R; Preca v R [2023] NSWCCA 122
- Hoskins v R [2021] NSWCCA 169
- KM v R [2023] NSWCCA 10
- Moiler v R [2021] NSWCCA 73
- Pender v R [2023] NSWCCA 291
- R v Eaton [2023] NSWCCA 125
- R v Sharrouf [2023] NSWCCA 13
- TM v R [2023] NSWCCA 185
- Van Der Baan v R [2012] NSWCCA 5