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

1. 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.

2. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Crimes Act”) for which the maximum penalty is life imprisonment and, because the deceased, LD, is under 18 years of age, for which there is prescribed a standard non-parole period of 25 years’ imprisonment. The malicious wounding offence, namely, wounding with intent to cause grievous bodily harm or malicious wounding, is an offence under s 33(1)(a) of the Crimes Act, for which the maximum sentence is 25 years’ imprisonment and there is a prescribed standard non-parole period of 7 years’ imprisonment.

The Process of Sentencing

3. To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. The Court is required to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. Thus, even as in one of the offences here, where one is speaking of murder as the most serious offence in the criminal calendar, it is necessary to assess the conduct of the offender to determine where, in the range of seriousness which murder may involve, the offence fits. Having noted the foregoing, it is also impermissible to fix a degree of seriousness less than the maximum, merely because one can imagine a worse case.

4. It is only for that category of offence that warrants the imposition of the maximum sentence that one would impose the maximum or is entitled to impose the maximum. A sentence of life imprisonment, in the case of the murder offence, or 25 years’ imprisonment in the case of the malicious wounding is reserved for that category of murder and malicious wounding, respectively, that warrants the maximum.

5. Whether a particular offence is in that category is not ascertained by imagining conduct that could be worse. Unfortunately, one can always imagine a worse scenario. Rather, the Court must assess objectively the features of the offence and the circumstances of its commission in order to determine whether it is in that category or lower down in the scale of seriousness, within a notional range between the lowest level of culpability and the highest level of culpability.

6. The purpose in sentencing any offender is to resolve what are often, if not necessarily, conflicting objectives. In serious crimes such as murder or malicious wounding, the importance of punishment and public deterrence loom large. Further, the Court is required to consider the protection of society and personal or specific deterrence, together with retribution and reform.

7. Over and above the consideration of the objective circumstances of the offending, the Court is required to assess the subjective circumstances of the offender and the capacity of the offender to be rehabilitated. The capacity for, and the likelihood (if any) of rehabilitation in turn impacts upon the degree to which a sentence is fixed, which stresses the protection of society and the personal deterrence of the offender.

8. The process is one that involves what has been described as “intuitive or instinctive synthesis”. It takes each of the objective circumstances of the offence, and each of the subjective circumstances of the offender, and synthesises them to achieve the purposes of sentencing.

9. Every murder is serious. Every malicious wounding is serious. Every murder involves the taking of human life by a person who has a state of mind that elevates the seriousness of the offence to that which is the most heinous of crimes. That same state of mind is required in order to prove malicious wounding. It is the state of mind, being an intention to kill or to cause grievous bodily harm, and the sanctity of human life and welfare, which makes these offences so serious.

10. In the case of the murder offence, because the age of the deceased is less than 18, the legislature has set a standard non-parole period of 25 years’ imprisonment, which is higher than would otherwise be the case. In both sentences, the standard non-parole period acts as a guidepost in the determination of an appropriate sentence. So too does the maximum sentence.

11. It is necessary to deal with the circumstances of the offending and some facts leading up to the infliction of the fatal injuries in the murder offence and the injuries in the malicious wounding offence. These facts inform the objective seriousness of the offences, and to some extent, when coupled with facts personal to the offender, inform the subjective circumstances that the Court is required to assess and consider.

Facts

12. Because of the plea of guilty and discussion between the Crown and the offender and his legal representatives, there are agreed facts setting out the circumstances of the offending.

13. The Wounding Victim, AK, and the offender were in an intimate relationship. She and the deceased were 17 years of age at the time of the offence. The deceased and the Wounding Victim were best friends and the offender had met the deceased as a consequence.

14. Towards the beginning of the relationship between the offender and the Wounding Victim, the offender had expressed the view that there were times when he thought he wanted to kill people. The offender had told her that he had always been “sick in the head” and wanted to kill someone.

15. In fact, the offender told the Wounding Victim, on more than one occasion, that he wanted to kill her but, on 15 December 2020, a time later than the earlier comments, the offender stated that he no longer wanted to kill the Wounding Victim because he cared about her and would be really upset if she died.

16. A month before the date of the offence, the offender pawned his expensive iPhone and purchased a cheap replacement. With the money received for the iPhone, the offender purchased equipment used in the offences and for use after the offences had been committed.

17. A week before the offences were committed, the offender and the Wounding Victim went to a lodge. At that time, as is clarified by the offender in his oral evidence before the Court, the offender went to the lodge with rope to tie up the Wounding Victim, and a knife to kill her.

18. At the lodge, a week before the offences, the offender tied the Wounding Victim with the rope. He spoke to the victim about wanting to have “kinky sex”; he had planned to kill her that night.

19. After the Wounding Victim had been bound, there was a discussion between the offender and her in which she told the offender that she and the deceased were going to a hotel room one week later. On receiving this information, the offender decided that he would not kill the Wounding Victim that night but would wait until the week after and kill both the Wounding Victim and the deceased.

20. During oral evidence, particularly during cross-examination, the offender confirmed that when he attended the lodge, on the week before the offence, he went there intending to kill the Wounding Victim. He brought a knife to the premises, which was the same knife that was used to kill the deceased on 18 December 2020. ^[1] The offender also confirmed that when he attended Maclin Lodge, the week before the offences, he had intended to kill the Wounding Victim and changed his mind so that he then planned to kill the Wounding Victim the week later, at the same time as killing the deceased.

    1. Tcpt, Sentencing, 8 February 2023, p 59.

21. In his oral evidence, the offender suggested that he killed the deceased only because he wanted to sleep with the Wounding Victim and would not have been comfortable if the deceased were there.

22. On the evening before the offences were committed and early in the morning following it, the offender conducted Internet searches using a second prepaid phone and searched for tools that can be used as weapons; how to operate a cordless nail gun; nail guns at a hardware store and its opening hours; and large size luggage, including a large, hard case. The offender then attended on the hardware store but did not purchase a nail gun. He purchased duct tape and rope which he had in his possession at the time the offences were committed. He also purchased a hand saw. The hand saw was to be used if the victims did not fit into the bag or the boot. A large black bag was found in the boot of the offender’s car on police investigation on 19 December 2020.

23. As already stated, the offences were committed on Friday, 18 December 2020. The deceased had booked a room at the Meriton Apartments in Parramatta to celebrate her 18th birthday, which was to be on 20 December. The plan was to spend the night in the room with the Wounding Victim. The offender became involved as a consequence of a request by the deceased and the Wounding Victim to assist in checking in, which required someone over the age of 18.

24. The victims of the offences attended a farewell barbecue at their High School during the day and were collected by the offender at 2:30 PM from the Railway Station at Padstow. The Wounding Victim asked the offender whether he had brought the knife with him – referring to a large Survivor brand knife, which the offender frequently carried.

25. The offender denied having possession of it. In fact, the offender did have possession of the knife and, after checking in, took the knife to the room and hid it under the couch. Police later found the sheath of the knife in that position. The offender also brought duct tape and rope into the room in a black bum bag, which he was wearing.

26. The three of them arrived at Meriton Apartments shortly before 5:00 PM. There was a difficulty with the checking in, relating, it seems, to the use of a credit card. The offender rang a friend, Mr Machol, who provided the credit card. There was a two-hour delay, which, in his evidence, the offender suggested was frustrating and annoying, because it was delaying the implementation of his plan.

27. At about 7:20 PM, the four of them, being the two victims, the offender and Mr Machol, entered the room and Mr Machol departed about 10 minutes later.

28. Just before 8:00 PM, the offender and the Wounding Victim went to the offender’s car to fetch his swimming shorts, during which, the Wounding Victim noticed that the boot of the offender’s car was unusually full. The Wounding Victim noticed a wooden box, which was, in fact, the large black bag, a saw and a blanket. It seems that there was also a large plastic bag.

29. At around 8:30 PM, the two young women were readying themselves to go swimming in the pool. The Wounding Victim was assisting the deceased in applying fake eyelashes. At the time, the offender was behaving unusually in that he was standing at the door watching them.

30. At about 8:40 PM, the deceased was in the bathroom alone. The offender asked if he could enter and was told to wait until the deceased was dressed. Shortly thereafter, the offender entered the bathroom in a manner that suggested or was similar to someone trying to frighten another. The offender began stabbing the deceased with the knife to which earlier reference has been made.

31. The Wounding Victim heard a noise that sounded like the deceased was laughing or being tickled. After a few seconds, the Wounding Victim thought that the offender was killing the deceased, got up and went to the bathroom. She saw the offender stab the deceased forcefully and repeatedly to her stomach as the deceased stood with her back against the sink.

32. As she was being stabbed, the deceased screamed at the offender to stop. The Wounding Victim told the offender to stop, with which the offender turned around and told the Wounding Victim to “back off” or “stay out of it”.

33. As the offender left the bathroom, the Wounding Victim placed her hand on the hand of the offender that was holding the knife and tried to calm the offender down. The offender told the Wounding Victim not to touch the knife because it would cut her.

34. The offender directed the deceased and the Wounding Victim into the bedroom, with which they complied, and he followed them. The offender stabbed the deceased again as she stood against the bedroom wall.

35. The offender and the Wounding Victim went into the lounge room, leaving the deceased in the bedroom. The Wounding Victim walked towards the front door to leave, but the offender told her not to do so. She called out to the deceased, telling her to shut and lock the bedroom door. She then moved to stand against the closed bedroom door, with the deceased inside the bedroom.

36. The offender then tried to get into the bedroom and ordered the Wounding Victim to move aside, threatening her with the knife. The Wounding Victim remained guarding the door. The offender then stabbed her once in the stomach. This stab wound gave rise to the wounding offence.

37. The Wounding Victim went back into the bedroom to find the deceased lying on the floor staring at the roof and gasping. She unsuccessfully tried to call emergency services by repeatedly pushing the power button.

38. At that stage, the Wounding Victim was frightened that the offender would kill her. The offender grabbed the phone. He also had possession of the deceased’s phone. He asked the deceased for the passcode as she lay dying.

39. The offender looked at the Wounding Victim and remarked that she had been stabbed. She asked him to call an ambulance. He did not.

40. The offender told the Wounding Victim to come with him into the living room, which she did. She sat on the lounge, he sat near her, apologised, and told her that he should not have stabbed her.

41. At this point, the offender was pacing. He still had possession of the knife. He said: “I’m gunna get 25 years; I am gunna get a lifetime in prison” and “I knew if I did this, I’d regret it”.

42. The offender told the Wounding Victim that he would not stab her again. She asked him again to call an ambulance. He responded with the following words:

“You know I can’t do that yet, not yet, I will call you an ambulance and you will survive, but not yet, not yet, I just want to chill with you for a bit”.

The offender appeared upset that he had stabbed the Wounding Victim and told her that he was “sick in the head”. The offender put the knife on the table and directed the Wounding Victim not to stab him. The Wounding Victim felt dizzy and may have lost consciousness.

43. When the Wounding Victim woke, she found that the offender had wrapped duct tape around her stomach, holding some clothing over the wound. She then noticed that the offender’s bum bag contained duct tape and rope. He told the Wounding Victim that he did not want her to die and said:

“I’m a monster, I just killed your best friend”.

The offender told the Wounding Victim that he had hidden the knife under the couch, after which he knelt, picked up the knife and put it to his neck, asking the Wounding Victim: “Should I do it?”

44. The Wounding Victim heard moaning coming from the bedroom and, at one stage, what appeared to be a yell. When the offender asked the Wounding Victim if the noise had been made by the deceased, she answered that it was from upstairs.

45. When the offender went to check on the deceased and returned to the lounge room, he told the Wounding Victim that the deceased was “stone cold dead”. He also said: “I literally just murdered someone”, and “I’ve killed an innocent person”. The Wounding Victim vomited.

46. The offender began singing a song entitled “I’m a bomb”. It is a song the offender would often play to the Wounding Victim during their relationship. The offender knows the lyrics to the song which include: “I’m a bomb and I’m about to blow up” and referred to being “a time bomb and there is no safety”. This song was sung both at the location of the offences and the week before at the lodge.

47. The offender told the Wounding Victim that he was going to move the deceased into the bathroom so that the two of them could lay on the bed. The Wounding Victim refused.

48. The offender then brought out some bedding from the bedroom to the lounge room. He cleaned up some blood in the kitchen and put his knife in the dishwasher. He arranged the bedding on the floor next to the couch and laid next to the Wounding Victim.

49. The Wounding Victim repeatedly asked the offender to call an ambulance and he continued to reply to the effect that he would do it later or not yet.

50. The offender explained in his oral evidence that when he told the Wounding Victim that he wanted to “chill” with her, he was asking her to have sex. ^[2]

    2. Tcpt, Sentencing, 8 February 2023, p 78(38-46).

51. The offender clarified that he had wrapped the Wounding Victim with her clothing and duct tape to keep her alive so as to have sex with her. ^[3]

    3. Tcpt, Sentencing, 8 February 2023, p 79(5-7).

52. The offender then expressed the view that he would masturbate and asked the Wounding Victim whether he should turn himself in or run. He told her that he was going to call an ambulance and then turn himself in.

53. The Wounding Victim began vomiting blood. The offender dressed himself in the Wounding Victim’s clothing to conceal the blood stains and rang his father. By this time it was 10:22 PM.

44. The offender told his father that he had just stabbed two people. The Wounding Victim called out that she was alive. The offender asked his father whether he should try to make a run for it.

45. The offender’s father told the offender that he would only be caught, and he should call an ambulance. The offender dialled 000 at 10:36 PM, using the phone of the Wounding Victim. The offender terminated the call, because he was worried that the call and his location could be traced. At 10:37 PM, by this time some two hours after the stabbing incidents, the offender left the room and took with him both victims’ mobile phones.

46. The emergency operator returned the call that had earlier been made. The offender answered the call as he walked towards the lifts. The offender told the operator that one person was dead, and another was bleeding out and gave the room number and location. He told the operator that “they” stabbed the people and were out of the hotel. In his evidence, the offender made clear that the reference to “they” was intended to deflect guilt from him.

47. The Wounding Victim sought to use the phone in the hotel room but was unsuccessful. She obtained help from a nearby room, initially, and then from another guest and staff in the lobby.

48. Police arrived at 10:45 PM. The deceased was located in the bedroom. The deceased had already died. Police spoke to the Wounding Victim, who was conveyed to Westmead Hospital.

49. It is unnecessary to detail the injuries to the deceased and to the Wounding Victim. The medical evidence supports the version of events relayed above, and establishes, if that were not otherwise agreed, that there were several stab wounds of some significance and a further number of superficial stab wounds on the deceased.

50. The wounds themselves, it seems, if treated immediately or at an earlier time, may not have been fatal. Nevertheless, there were injuries to the front trunk and abdominal area, the rear left side of the back and over the right flank, an incision in the left thigh, lacerations to the arm and hand, both left and right. The wounds to the deceased’s hands were characteristic of defensive type injuries.

51. At the Hospital, on her admission, the Wounding Victim underwent an emergency exploratory laparotomy. She was found to have suffered a stab wound to the right abdominal area into the abdomen which perforated part of the duodenum and to its posterior wall. There was a pancreatic contusion. These injuries, if left unattended, may also have been life-threatening.

52. After leaving the Hotel, the offender drove to Westbound McDonald’s. During the drive, the offender called his father, who arranged for a friend to collect the offender and to drive him to the father’s house in Minchinbury.

53. During the drive, the offender also rang a friend, Sheldon Spuza. Mr Spuza described the offender as exhibiting a “kind of … laughing cry” and during the call the offender admitted to Mr Spuza that he had “killed them”, referring to each of the victims.

54. In the early morning of 19 December 2020, police contacted the offender’s father and about 45 minutes later, the offender attended Parramatta Police Station with his father and his father’s friend. Police cautioned the offender and placed him under arrest. He was taken to Westmead Hospital for attention to some minor injuries. The offender did not appear to be affected by drugs or alcohol.

55. Later that morning the offender participated in an electronically recorded interview during which the offender said there was nothing that he wanted to tell Police about what had happened the previous evening and that he couldn’t remember what he, the offender, had been up to yesterday. The offender declined to answer questions relating to the attendance at the Police Station or what had happened to the two victims.

Subjective Circumstances

66. The offender was born on 19 May 2001 and was 19 at the time of the offences. Prior to being arrested he had been living in share accommodation run by a Christian Church. He had left home at 17 years of age reportedly because his father had married a woman and later had children. He had half-siblings and, accordingly to the offender, there was no room in the home for him. He also had an older brother, who was just over one year older and had already commenced living independently.

67. His mother had left him when the offender was three years old but had contacted him since his arrest. Prior to his arrest, the offender was unemployed.

68. Apparently, he had several jobs over the years, but had been terminated on each occasion, according to the offender on the basis that he could not learn. Otherwise, his early childhood was unremarkable and there is not alleged to be any history of abuse or anti-social behaviour.

69. The Court has several psychiatric reports before it. The circumstances of the reports, in some cases, is, to say the least, unusual.

70. The offender feigned psychiatric illness for a period of two years, during which he reported to health professionals that he was delusional, hearing voices and reported other symptoms consistent with psychosis. On 15 April 2021, Dr Richard Furst, Forensic Psychiatrist, was instructed to report on the psychiatric condition of the offender, and, in particular: to assess the offender’s fitness to be tried; whether a defence was available under the mental health impairment or cognitive impairment provisions; and/or whether he had available the partial defence of substantial impairment to the charge of murder.

71. In his first report, Dr Furst recognised the inconsistent history that had been given by the offender over a significant period. He answered the specific questions requested and formed the opinion that: the offender was fit to be tried; did not have a mental illness defence; and was not suffering substantial impairment or abnormality of mind. In his report, Dr Furst refers to earlier diagnoses at Justice Health and the so-called symptoms that were displayed as consistent with malingering.

72. In his second report of 23 January 2023, which was after the plea of guilty had been entered by the offender and after the offender had admitted that he had been feigning mental illness and psychosis for over two years, Dr Furst formed the opinion that there were no indications of thought disorder, and the offender was not responding to internal stimuli. He appeared to Dr Furst to be of lower-than-average intelligence.

73. Leaving aside the differences in approach by Dr Kerri Eagle and Dr Furst, to which attention will be paid later in these remarks, Dr Furst described the offender as “a disaffected, immature and dysfunctional adolescent who lacks social skills, has deficits in empathy, has sub-normal intelligence and who most likely has an autistic spectrum disorder.” ^[4] Dr Furst, who is an extremely experienced Forensic Psychiatrist, refers to the fact, which is well-known, that people “with such a psychological/cognitive profile are over-represented in the criminal justice system and frequently develop obsessive tendencies and abnormal fascination/rituals, including in relation to violence.”

    4. Ex S1, Offender Bundle, Tab 2, pp 1-16; Report of Dr Richard Furst, Forensic Psychiatrist, 23 January 2023, p 13.

74. The offender had a pathological interest in Ted Bundy, a US serial killer. He is described by Dr Furst as being “ill-equipped to handle an intimate relationship”, ^[5] being “prone to jealousy, feelings of rejection and associated anger, including when he was not invited to [the deceased’s] 18th birthday party”. ^[6] Dr Furst expressed the view that his drug use prior to the offences, “most likely made [the offender] disinhibited, overexcited, and led to him enacting his ‘kill fantasies’ when killing [the deceased] and stabbing [the Wounding Victim]; however, it would appear that he did not gain the satisfaction or thrill he thought he would achieve …”. ^[7]

    5. Ibid.

    6. Ibid.

    7. Ibid.

75. Dr Kerri Eagle was commissioned for the Crown to deal with the offender's mental condition. She first saw the offender on 13 December 2021, at which time the offender informed Dr Eagle that: he thought he had an antenna in his head that allowed aliens to contact him; he had a long history of hearing voices telling him to hurt others; he believed that at one point the TV was talking to him; he had some visual hallucinations; and, he had committed the crimes due to the belief that the aliens needed him to do so to depopulate the earth.

76. Dr Eagle noted an earlier psychiatric report performed by a psychiatrist at Justice Health on 30 September 2021, which supported a diagnosis of schizophrenia based upon the offender's self-reported symptoms. Dr Eagle doubted the veracity of these complaints.

77. Dr Eagle noted in detail the content of telephone calls made by the offender from custody, mostly to his father. The offender had asked his father to tell people that he had schizophrenia. He often spoke about how he would be happy to get into an institution and that he was "trying to get diagnosed", by telling mental health, "I'm hearing voices and shit".

78. Dr Eagle used several tools to assess the truthfulness of the offender's claimed symptoms and concluded that it was very likely that he was fabricating or embellishing them for the purpose of securing a mental health defence. She thought that he might suffer an antisocial personality disorder.

79. In October 2022, Dr Eagle prepared a supplementary report relating to the offender, but the offender had refused to be re-interviewed by her. The report noted that clinical notes indicated that he had been non-compliant with medication. Despite this non-compliance, there was no relapse. She took this as confirmation that he was malingering.

80. In terms of risk assessment, noting the premeditated nature of the violent offending and the offender's callousness, manipulative presentation and violent fantasies, Dr Eagle thought that there was an elevated concern of risks of future offending.

81. There were some differences between the assessment of Dr Furst and the assessment of Dr Eagle. However, those differences seemed, after oral evidence was given by each of them, to be more nuanced than the written reports would indicate.

82. First, there was criticism by Dr Furst of the tool used by Dr Eagle in the assessment of risk. It was a tool used and designed for persons with psychosis.

83. However, at the time that the assessment was made, the offender was being treated for and still feigning psychosis. In other words, the criticism was not one of Dr Eagle, but rather, after the event, a recognition that while some of the aspects of the test may be useful, the test was one for a psychotic patient, which, in the later report of Dr Furst, it was recognised was not the case.

84. The offender admitted to feigning the symptoms and that occurred after the first report of Dr Eagle. The offender had fooled experienced psychiatrists and a mental health team for over two years. Each of the witnesses, Dr Furst and Dr Eagle, accepted that the capacity to fool an experienced health team in that way over a sustained period was an indication that, if the offender were on the autism spectrum, he was at the lower end of the spectrum and was not suffering a disorder as a consequence.

85. The other major difference between the assessment of Dr Eagle and the assessment of Dr Furst related to whether the offending was “sexually related". In oral evidence, neither doctor indicated that they could diagnose a sexual disorder or form an opinion that the offending in question was sexually related.

86. Each of them considered that the sexual nature of the offending was a possibility and it seems they differed slightly on the level of possibility. Neither of them gave evidence from which the Court could be satisfied, even on the balance of probabilities, of the existence of a disorder in that respect nor a causal relationship between sexual fantasy or a sexual disorder and the offending in question.

87. Lastly, there is an issue as to the existence of post-traumatic stress disorder (“PTSD”). Doctors Eagle and Furst differ as to whether the offender currently suffers PTSD. Neither of them suggests that the PTSD existed prior to the offending and, if PTSD is being suffered by the offender, it is a result of the trauma associated with his actions in killing and wounding the two victims. In those circumstances, while it may impact the onerousness of any incarceration, it does not ameliorate the culpability associated with the offending.

88. During the oral evidence, the issue of the motive of the offender was examined. Dr Furst was of the view that the motivation was jealousy and, when asked as to any occurrence that may have excited such a feeling, Dr Furst referred to the birthday celebration for the deceased that was to occur on 18 December. The difficulty with that proposition is that the offender had planned and decided to kill the Wounding Victim before he was aware of the birthday celebration.

89. Motive, in a serious offence, can be overrated. In most instances, it neither proves nor disproves guilt. Nevertheless, when sentencing, the existence of a motive allows the Court to understand better the risk of re-offending, the need for protection of society and the need for punishment.

90. The motive in this case is elusive. If the Court were required to speculate, it is clear that nothing was done by either of the victims that would have or could have excited feelings of jealousy.

91. To the extent that there can be an explanation of the motivation of the offender, it is serious feelings of abandonment arising from the departure of his mother, and the marriage of his father, which he was unable to process and unable to deal with. As was attested in evidence by the two psychiatrists, personality disorders are difficult to diagnose with limited exposure to the patient.

92. It is impossible for the Court to find, either on the balance of probabilities or otherwise, that the offender suffers a personality disorder which prevented him from dealing with the abandonment that he suffered and prevented him from being equipped to handle relationships with people. It is clear, on the evidence before the Court, beyond reasonable doubt, that the offender does not suffer any psychosis.

93. I turn to the issue of the offender’s intellectual capacity. It has been accepted, in part following the studies and reports of the clinical neuropsychologist, Lucienne Barhon, that the offender operates at a borderline intellectual capacity.

94. The testing performed by Ms Barhon in relation to new learning and recent memory assessed the offender as in the average range both in the short term and in the extended term. His executive functioning assessment showed him to be in the average range on a visual-based task and a range from borderline to average in non-verbal reasoning. He performed in the borderline range in both letter fluency tasks and verbal abstract thinking tasks.

95. The difficulty with relying upon such test results is the circumstance that such an assessment relies fundamentally on the performance of the offender in circumstances where the offender has the capacity to feign, convincingly, symptoms of psychosis and could, no doubt, deliberately answer questions incorrectly or feign an inability to recognise or associate words. Thus, the assessment in question depends, fundamentally, on the offender answering to the best of his capacity and truthfully, in circumstances where, for a period of two years, he did exactly the opposite to avoid criminal responsibility.

96. Moreover, the capacity to feign symptoms of a psychosis well enough to convince an experienced psychiatrist and a health team at Justice Health discloses, albeit in some perverse manner, a level of intelligence and memory that seems inconsistent with borderline executive functioning.

97. Notwithstanding the conclusion I have adopted that the cognitive testing is, for the reasons expressed, unreliable, I shall sentence on the basis that the cognitive testing accurately reflects the capacity of the offender.

Consideration

98. Each of these offences is a serious offence. Each of them has a different maximum sentence and different standard non-parole periods, each of which is, respectively, a guidepost in the setting of an appropriate sentence. The circumstances of each offence are similar, if not identical. There are obvious aspects of the offending which are inherent in each of the offences. Each necessarily involves the use of violence; each involves the infliction of substantial injury, emotional harm, and damage; and each involves a grave risk of death.

99. The Court has had regard to the Victim Impact Statements. They disclose the horror of these offences. Nothing the Court can do can reverse the effect on the victim of the malicious wounding or murder, or the effect on the close friends and family of each. The loss of a loved one at such a young age is indescribably horrible. So too are the injuries inflicted and the effect on the surviving victim. These circumstances will no doubt haunt the surviving victim and the families of both victims for the rest of their lives.

100. There are other aspects which the Court considers and are not inherent in the offence itself. First, each offence involves the use of a weapon, being a knife or, on some evidence, possibly a screwdriver, or both. While there are more serious weapons that can be used in both murder and a malicious wounding, such a circumstance is not necessarily ameliorating. For example, the use of a firearm may, in some circumstances, result in less suffering than a lingering death from a knife wound. While the weapon used is not the most serious kind, the offence is aggravated by the use of that weapon.

101. While there is an element of double counting involved in the next aggravating factor, each of the offences was committed in the presence of another under the age of 18, being the victim of the other offence. In each case, the circumstance that both were present and being stabbed must have been a terrifying experience for each of them and an experience which exacerbated the terror occasioned by the offence against that person.

102. Another circumstance that warrants noting is that, in the case of the offence against the deceased and, to a slightly lesser degree, the offence against the Wounding Victim, each victim was left to suffer from the wounds inflicted in circumstances where, if immediate attention had been summonsed, the deceased may not have died and the emotional and physical damage to the Wounding Victim may have been ameliorated. Having made that comment, I do not regard those circumstances as involving gratuitous cruelty, being cruelty beyond that which is necessarily involved in the commission of the offence itself.

103. I do not take into account any position of trust or authority abused by the offender. Nor do I consider either of the victims was particularly vulnerable, save for the fact that they were young. However, so too was the offender and the difference in age between the offender, on the one hand, and the victims, on the other hand, is not so great that the Court should take into account any special vulnerability associated with the age of the victims. It is necessary to note, in relation to the foregoing comments, that the Court does take account of the increased standard non-parole period associated with the murder offence, which, in many ways, reflects the greater vulnerability of persons under the age of 18.

104. It is also necessary to note that there are a number of ameliorating factors. First, the offender has no criminal record and was, prior to these offences, a person of good character.

105. The offender presented evidence of remorse and acknowledged responsibility for the offences. Consequently, the provisions of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act1999 (NSW) apply, but only to the extent that the Court is satisfied that the remorse is genuine. I will deal later in these remarks with that aspect.

98. After the two years of feigning mental illness, and after Dr Furst hinted that he may be feigning and Dr Eagle found that he was feigning, the offender pleaded guilty. That guilty plea is required to be taken into account, unless the Court exercises a discretion otherwise.

99. The Crimes (Sentencing Procedure) Act1999 (NSW) provides a mandatory scheme for allowing a discount for the utilitarian value of a plea of guilty. Under the mandatory scheme, an offender who pleads guilty at committal, which plea is accepted by the magistrate is entitled to a 25% reduction in sentence. The offender pleaded guilty during committal and the plea was accepted by the Magistrate.

100. It is unnecessary to deal with some of the complicated questions that arise in relation to “new offences". The discount scheme does not apply where a life sentence is imposed.

101. However, the Court has a discretion not to apply the mandatory scheme promulgated by the legislature by not applying the discount or by applying a reduced discount if the Court determines that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by the imposition of a penalty with no allowance for, or a reduction of, the discount.

102. Sentencing is already complicated and depends on the principles of intuitive synthesis. To impose a mandatory scheme merely complicates the process further.

103. In order for s 25F(2) of the Crimes (Sentencing Procedure) Act1999 (NSW) to apply so as to allow the Court a discretion in the amount of any sentencing discount or not to apply a sentencing discount, the Court is required to come to the conclusion that it is only by the imposition of a lesser discount or no allowance for discount that the interests of the community in retribution, punishment, community protection and deterrence can be met.

104. These are the same or similar issues to those that the Court is required to consider in determining whether the Court should, in the case of murder, impose a life sentence. Of course, the result is very different. But the exception to the mandatory nature of the scheme does not involve consideration of the benefits to rehabilitation, reform or remorse.

105. Nevertheless, if the Court were convinced that rehabilitation was an important aspect, such a conclusion affects whether the community interest in deterrence, for example, or community protection, are met only by the imposition of a different discount or the non-application of a discount.

106. The Court is satisfied that the community interest in retribution, punishment, community protection and deterrence can be met only by the imposition of a penalty with a reduction of the discount otherwise applicable. As a consequence, the Court must evaluate the discount in sentence that should be applicable in each of the offences. In those circumstances, consequent upon the promulgation of Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court will provide a discount of 15%. There is still a utilitarian value in the plea and the offender by his plea has obviated the necessity of the Wounding Victim being required to give evidence.

107. The next issue that requires some comment is the question of the aggravating aspect associated with the planning of these offences. In some respects, the malicious wounding was not planned. The offender planned two murders, one of which did not eventuate and resulted in the malicious wounding offence. The offender submits that the planning was not "sophisticated". In some respects, the submission of the offender is correct.

108. However, planning of an offence of this kind, or these kinds, is in the current circumstances an aggravating feature that significantly impacts the seriousness of the offences. In this case, a murder was planned for a month or more.

109. Steps were taken to obtain cash for the purposes of buying equipment to be used in the murders. A week before the offences occurred, the planning for one murder was, quite deliberately, broadened to become the planning for two murders.

110. The planning of the offender extended over a significant period. The murder and the malicious wounding were more than simply "premeditated"; they were planned, and the plan was implemented.

111. The fact, if it be the fact, that the offender did not plan his getaway, in a manner that others may have, does not detract from the fact that the planning still occurred. There are occasions when the sophistication of the planning is a further aggravating factor of the planning, but, in the current circumstances, the lack of sophistication is not an ameliorating factor where sophistication refers to the “cleverness" of the planning, as distinct from the period over which the planning occurred.

112. These are very serious offences. The purposes of sentencing, as has been stated, include: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.

113. As already stated, often these purposes pull in different directions, but each is a guidepost to the appropriate sentence to be imposed. The purposes of sentencing are now prescribed by the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The process is a process that involves taking each of the objective factors of the offence and the subjective factors of the offender and synthesising those factors in a manner which best achieves all of the appropriate purposes of sentencing.

114. I consider that the objective seriousness of each of the offences is well above mid-range, but I do not consider that the interests of the community in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence for murder and I will impose a determinant sentence.

115. There are two aspects of this offending that require significant comment. First, the offender was a youth. He was over the age of 18 and therefore covered by the provisions that apply to adults, but he was not significantly over the age of 18.

116. In dealing with youth crime, it is necessary to take into account the principles that apply to persons who have not yet fully developed maturity and, in that, not yet fully developed an appreciation of the full consequences of their actions. As made clear by Hodgson JA in BP v R, relying on earlier judgements of the Court and the Court's experience, emotional maturity and impulse control develop progressively during adolescence and early adulthood and are not fully developed until the early to mid-20’s. In his reasons for judgment, Hodgson JA said:

“[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v The Queen [2008] NSWCCA 158 at [33]-[36].

Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a “child offender” of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987 (NSW). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v E (2006) 68 NSWLR 1; 164 A Crim R 208 at [127]. As shown by R v Hearne (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime”. ^[8]

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

125. In this case, the fixation with Ted Bundy and the expectation that the offender would receive a "thrill" and/or be "happy" after killing people, if not reflective of psychosis, is certainly reflective of immaturity and a lack of understanding of the consequences of his actions. In my view, the principles relating to youth are relevant in the sentencing of this offender.

126. The next matter of some significance is the issue of remorse, to which the Court has already referred in these remarks. Notwithstanding that the offender gave evidence of his remorse and responsibility for his conduct, I do not accept that the offender discloses and/or has displayed any genuine remorse.

127. His conduct in feigning mental illness in order to avoid criminal responsibility shows a complete lack of remorse and a lack of acceptance of responsibility for his conduct. Further, his evidence in the sentencing proceedings was such that I do not accept, even to the lower standard of balance of probabilities, the expression of remorse for his conduct.

128. His answers in relation to his motivation and the reasons for delaying the intended murder of the Wounding Victim for a week, in order to kill the deceased, is replete with inconsistencies and irrationality. In many respects, in this area and in the area of his expressions of remorse, his answers are more consistent with expressing opinions that he thinks the Court wants to hear, rather than expressing truthfully the nature of his feelings.

129. As earlier stated, the objective seriousness of these offences, in the range of offending that occurs in relation to both murder and malicious wounding, is well above mid-level, but not in the worst category warranting the maximum sentence. It is the offender's first offence. I take into account the discount of 15% in the sentence to be imposed, and all of the other factors to which reference has been made in these remarks, as well as those factors to which each of the Crown and the offender referred. Obviously, in relation to these offences, no sentence other than one of full-time custody is appropriate.

130. In relation to the malicious wounding offence, I start with a head sentence of 8 years, reduced by 15% to 6 years and 9 months head sentence and impose a non-parole period of 4 years and 9 months. I find special circumstances on the basis of the offender’s youth, but I do not consider the offender's prospects of rehabilitation are good.

131. In relation to the offence of murder, I commence, taking into account both the maximum sentence and the standard non-parole period of 25 years, with a head sentence of 40 years, which I reduce by 15%, and will impose a head sentence of 34 years' imprisonment. I impose a non-parole period of 24 years, again taking into account my finding of special circumstances on the basis of the youth of the offender.

132. The offender was arrested and has been in custody on account of these offences since 19 December 2020, from which date the overall prison sentences will commence.

133. The Court takes into account the issue of totality and, because these offences were committed together but have been treated separately in each sentence, each being assessed without regard to the other or the commission of the other at the same time, there is a greater need for accumulation.

Sentence

134. Mr Kristian Kovaleff, please rise:

1. The Court records that you are convicted for that on 18 December 2020, at Parramatta in the State of New South Wales, you did wound AK (a pseudonym) with the intent to cause grievous bodily harm to her; and, on the same date at the same place, you did murder LD (a pseudonym);

2. You are sentenced for the crime of wounding with intent to cause grievous bodily harm. You are 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 you are 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, you are 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. You are first eligible for release on parole on 19 December 2046.

5. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act2006 (NSW), I advise Mr Kovaleff of the existence of that statute and that it applies to him and to these offences and I direct his legal team to explain the significance of this fact to the offender.

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Endnotes

Decision last updated: 30 March 2023