R v Kovaleff - [2023] NSWSC 302

Supreme Court

New South Wales

Medium Neutral Citation: R v Kovaleff [2023] NSWSC 302
Hearing dates: 08 and 15 February 2023
Date of orders: 30 March 2023
Decision date: 30 March 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The offender is convicted for that, on 18 December 2020, at Parramatta in the State of New South Wales, he did wound AK (a pseudonym) with the intent to cause grievous bodily harm to her; and, on the same date at the same place, he did murder LD (a pseudonym);
(2)   For the crime of wounding with intent to cause grievous bodily harm, the offender is sentenced to a term of imprisonment, being a non-parole period of 4 years and 9 months commencing 19 December 2020 and concluding 18 September 2025 and is sentenced to a remainder of a term of imprisonment for this offence, being a further term of 2 years, concluding 18 September 2027;
(3)   For the offence of murder, the offender is sentenced to a term of imprisonment, being a non-parole period of 24 years, commencing 19 December 2022 and concluding 18 December 2046, with a remainder of term, being a term of imprisonment of 10 years, concluding 18 December 2056;
(4)   The offender is first eligible for release on parole on 19 December 2046.
(5) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that statute and that it applies to him and to these offences and the offender’s legal team is directed to explain the significance of this fact to the offender.

Catchwords:
CRIME – SENTENCING – murder and malicious wounding – aggravating and mitigating factors – youth of offender – youth of victims – sentence imposed/

Legislation Cited:
Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(a)
Crimes (High Risk Offenders) Act2006 (NSW),
s 25C(1)
Crimes (Sentencing Procedure) Act1999 (NSW),
ss 3A, 25F(2), Division 1A

Cases Cited:
BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [4] – [5].

Category: Sentence
Parties: Rex (Crown)
Kristian Kovaleff (Offender)
Representation:
Counsel:
M Millward (Crown)
A Evers (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2020/360020
Publication restriction: Pursuant to the terms of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, either of the two victims, both of whom were under 18 years old when the offences were committed, is prohibited.

REMARKS ON SENTENCE

HIS HONOUR: Kristian Kovaleff has pleaded guilty to two offences: the murder of LD (a pseudonym and hereinafter also referred to as “the deceased”); and wound with intent to cause grievous bodily harm (hereinafter “the malicious wounding” or “the wounding offence”) on AK (a pseudonym and hereinafter also referred to as “the Wounding Victim”). The Court is required to sentence Mr Kovaleff for those offences.
Murder is an offence contrary to s 18(1)(a) of the Crimes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kovaleff

Details

AGLC: R v Kovaleff [2023] NSWSC 302
Case: [2023] NSWSC 302
Decision Date: 30 March 2023

CaseChat Overview and Summary

The case of R v Kovaleff involved a young offender who was convicted of murder and malicious wounding. The offender, Kovaleff, was sentenced by the Supreme Court of New South Wales. The dispute centred on the appropriate sentence to be imposed, with consideration given to both the severity of the crimes committed and various mitigating factors, including the youth of both the offender and the victims.

The legal issues the court needed to decide were the appropriate weight to give to the aggravating and mitigating factors in sentencing, particularly the youth of both the offender and the victims. The court had to balance the need for punishment and deterrence with the rehabilitative potential of the offender, given his young age.

The Supreme Court considered the principles of sentencing for murder and malicious wounding, the specific circumstances of the crimes, and the youth of the offender and victims. The court recognised that while the crimes were heinous, the youth of the offender could potentially play a significant role in the sentencing process, offering a chance for rehabilitation. After weighing the aggravating and mitigating factors, the court determined that Kovaleff should be sentenced to a term of imprisonment with the possibility of parole, reflecting both the severity of the crimes and the potential for rehabilitation. The precise sentence was left to the discretion of the sentencing judge, taking into account the specific details of the case.

Orders