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District Court 10 October 2025

R v Trajkovski

[2025] NSWDC 456

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v Trajkovski [2025] NSWDC 456
Court: District Court of New South Wales
Date: 10 October 2025
Judge: Haesler SC DCJ

Background

On the evening of 20 May 2023, the offender and two other men drove to a residential property in Southern Wollongong and forced their way inside after kicking down the front door. The offender had a prior connection to the principal occupant and attended the premises motivated by a claimed debt and the known presence of drugs.

Once inside, the group confronted the occupants. One victim was struck to the back of the head with an axe. The principal occupant was attacked with the axe multiple times, suffering cuts to his fingers and thigh, and was also punched in the face. A bag containing a wallet, car keys and house keys was taken when the group left.

The offender was arrested on 12 July 2023, having been readily identifiable to the occupants, and remained in custody from that date. He ultimately pleaded guilty in the District Court on 1 July 2025 to break and enter in circumstances of aggravation under s 112(2) of the Crimes Act 1900 (NSW). Two further matters, assault occasioning actual bodily harm and larceny, were placed on a Form 1 to be taken into account on sentence.

  • What discount, if any, applied to the guilty plea given the timing of negotiations between the parties and the late acceptance by the prosecution?
  • How should the court apply the principle from The Queen v De Simoni (1981) 147 CLR 383 where the agreed facts disclosed conduct potentially more serious than the charged offence?
  • How should the Form 1 offences affect the head sentence?
  • Was the offender less morally culpable than his co-offender Popovic, and how should parity between them be maintained?
  • Did special circumstances exist justifying a longer than usual parole period?

Decision

Guilty plea discount. The offender was entitled only to a 5% utilitarian discount because the plea was entered very close to the trial date. However, Haesler SC DCJ accepted that the delay was not the offender's fault: the defence had indicated its willingness to plead as early as 10 June 2025, but the Director's office did not confirm acceptance until late June. Relying on Green v R [2022] NSWCCA 230, the court found that a strict application of the 5% figure would cause practical injustice, and took the early offer into account as a separate matter under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) without specifying a precise additional percentage.

De Simoni and the nature of the violence. The agreed facts described conduct that could amount to wounding, which carries a higher maximum penalty than assault occasioning actual bodily harm. Applying De Simoni, the court was not permitted to sentence on the basis of a more serious offence than that charged. The court also found it unclear whether the use of an axe to cut (as distinct from using a weapon generally) was within the scope of the joint criminal enterprise, and accordingly limited its findings to what was properly attributable to the offender.

Parity with co-offender Popovic. Haesler SC DCJ had previously sentenced Popovic with a starting point of 5 years. The court acknowledged that Popovic was older, had a more serious criminal history, and was more physically aggressive during the attack. The court rejected the submission that the offender bore lesser moral culpability overall: it was his plan, his connection to the premises, and his initiative that brought the group there. A starting point of 4 years and 6 months was set for the offender to reflect these distinctions, before further adjustments.

Special circumstances. The court made a strong finding of special circumstances, extending the parole period to 1 year and 10 months. The offender's drug addiction history, his progress on a buprenorphine program, his family support, and his assessed readiness to reintegrate into the community all supported a longer supervisory period. The court balanced this against the need for the minimum custodial term to reflect the seriousness of the offending and the purposes of sentencing including community protection.

Orders Made

  • The offender was sentenced to a total term of 4 years and 3 months imprisonment.
  • Non-parole period: 2 years and 5 months.
  • Sentence commenced 12 July 2023 (date of arrest and entry into custody).
  • Earliest eligible release date for parole consideration: 11 December 2025.
  • Parole period: 1 year and 10 months (reflecting a strong finding of special circumstances).
  • Total sentence expires: 11 October 2027.
  • Release subject to an order of the State Parole Authority.
  • The court noted the parole eligibility date was deliberately fixed to avoid a mid-January release, citing the practical concern that support services are unavailable in the immediate post-Christmas period.

Key Takeaways

  • Where a prosecution's delayed acceptance of a plea offer prevents the offender from obtaining a higher discount, the court retains discretion under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take the early offer into account separately, even where the formal utilitarian discount is capped at 5%.
  • The De Simoni principle requires a sentencing court to confine itself to the offence charged and not treat the offender as having committed a more serious offence, even where the agreed facts might support a graver characterisation of the conduct.
  • Organising and initiating a joint criminal enterprise can support a finding of equal or greater moral culpability, even where another participant physically inflicted more of the violence. The District Court rejected the argument that the offender's lesser physical involvement translated into lesser responsibility.
  • Form 1 offences do not attract separate punishment, but their existence requires greater weight to be given to personal deterrence and community protection when fixing the head sentence, as confirmed by the guideline judgment in Attorney General's Application No 1 of 2002.
  • A strong finding of special circumstances can produce a parole period substantially longer than the statutory default where the offender's rehabilitation prospects and need for supervised community reintegration are well established, provided the non-parole period still reflects the seriousness of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 112(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 37
- Criminal Procedure Act 1986 (NSW), s 32 (Form 1)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Green v R [2022] NSWCCA 230
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146