AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 25 June 2025

Stobinski v R

[2025] NSWCCA 97

Assault & violence
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE APPEAL UPHELD AND OFFENDER RE SENTENCED

Citation: Stobinski v R [2025] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 25 June 2025
Judges: Davies J, Hamill J (principal judgment), McNaughton J

Background

The applicant pleaded guilty in the Local Court to recklessly inflicting grievous bodily harm (contrary to s 35 of the Crimes Act 1900 (NSW)) and common assault, with a further common assault taken into account on a Form 1. The offences arose from an incident in Eastwood in April 2023, during which the applicant shoved the victim down a flight of concrete stairs after a street confrontation. The victim suffered serious injuries including a displaced hip fracture requiring surgery, a dislocated femoral head, and ankle fractures.

In the District Court, the applicant tendered medical and psychological evidence establishing frontal lobe brain damage, cognitive impairment, post-traumatic stress disorder and depressive illness. His counsel submitted that those conditions diminished his moral culpability, reduced the weight properly given to general deterrence, and made imprisonment more onerous, supporting a finding of special circumstances. The sentencing judge found, on balance, that the applicant's mental health issues played some role in the commission of the offence, but imposed an aggregate sentence of 3 years and 4 months with a non-parole period of 2 years.

The applicant sought leave to appeal on the single ground that the sentencing judge erred in his consideration and evaluation of the applicant's mental health.

  • Whether the sentencing judge erred by failing to engage with the established legal principles governing the relevance of mental health to moral culpability and general deterrence, after finding that those conditions had contributed to the offending.
  • Whether that failure constituted a material error warranting the Court of Criminal Appeal to exercise the sentencing discretion afresh.
  • What the appropriate sentence was, taking proper account of the applicant's brain injury, cognitive impairment and psychiatric conditions.

Decision

The Court of Criminal Appeal (Hamill J, with Davies and McNaughton JJ agreeing) found the sentencing judge's failure to engage with relevant principles conspicuous. Having made an affirmative finding on uncontested evidence that the applicant's mental health issues, brain injury and physical ailments negatively affected his decision-making and contributed to the offending, the sentencing judge provided no explanation for why those conditions did not reduce moral culpability or diminish the weight accorded to general deterrence.

Hamill J noted that the case law is well-settled on a critical point: no causal link between a mental health condition and the commission of the offence is required before general deterrence is reduced in weight. The existence of a psychiatric or cognitive condition affecting impulse control and emotional regulation is sufficient to engage those principles. The absence of any analysis of why those principles did not apply, in circumstances where a relevant finding had been made on uncontested evidence, constituted a material error in the sentencing judgment.

The Court proceeded to resentence the applicant. It found his moral culpability slightly reduced on account of his brain injury and psychiatric condition, and afforded slightly less weight to general deterrence because his impulsivity and emotional regulation were impaired by those conditions. The need for adequate punishment and recognition of the serious harm to the victim meant a stern sentence remained appropriate. The sentencing judge's finding of special circumstances was accepted and applied, producing a non-parole period of approximately 60% of the head sentence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 29 August 2024 quashed.
  • For the reckless infliction of grievous bodily harm offence (taking into account the Form 1 common assault): non-parole period of 1 year and 6 months commencing 29 August 2024 and expiring 28 February 2026, with a balance of term of 1 year expiring 28 February 2027.
  • For the common assault offence: fixed term of 3 months commencing 29 August 2024 and expiring 28 November 2024, wholly concurrent.
  • Total effective sentence: 2 years and 6 months with a non-parole period of 1 year and 6 months.
  • The applicant is eligible for release to parole at the expiration of the non-parole period.

Key Takeaways

  • Once a sentencing court makes a finding that a mental health condition, brain injury, or cognitive impairment contributed to an offender's conduct, the judgment must engage with the established principles governing moral culpability and general deterrence. Silence on those principles, without explanation, constitutes a material error.
  • No causal link between a psychiatric or cognitive condition and the commission of an offence is required before reduced weight is given to general deterrence. The existence of a condition that impairs impulse control or emotional regulation is sufficient to engage that principle.
  • In resentencing, the Court of Criminal Appeal gave slightly reduced weight to moral culpability and general deterrence, while still imposing a sentence reflecting the seriousness of the offending and the significant harm suffered by the victim.
  • Uncontested expert evidence of frontal lobe damage, cognitive impairment and psychiatric illness carried real weight in the resentencing exercise, resulting in the total effective sentence being reduced from 3 years 4 months (non-parole period 2 years) to 2 years 6 months (non-parole period 1 year 6 months).
  • A finding of special circumstances justified a non-parole period set at approximately 60% of the head sentence, consistent with the approach taken at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35 (recklessly inflicting grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44

Cases:
- 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, unreported)
- 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
- Crane v R [2024] NSWCCA 87
- YM v R [2023] NSWCCA 75
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (distinguished)
- 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
- Testici v R [2025] NSWCCA 88