R v Pash - [2023] NSWDC 297

District Court

New South Wales

Medium Neutral Citation: R v Pash [2023] NSWDC 297
Hearing dates: 5 May and 21 June 2023
Decision date: 04 August 2023
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 6 years with a non-parole period of 3 years 10 months

Catchwords:
CRIME-SENTENCE - common assault; reckless wounding; intimidation; damage to property.

Legislation Cited:
Crimes Act 1900 (NSW), ss35(4), 61 and 195(1)(a); Domestic and Personal Violence Act 2007 (NSW), s13(1).

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571.

Category: Sentence
Parties:
Rex (Crown)
Gordan Pash (The Offender)
Representation:
Ms Pelliccione - (ODPP Parramatta)
Mr Cifuentes - Solicitor for the Offender

File Number(s): 2022/00145363
Publication restriction: Nil

Judgment

Gordan Pash, you appear for sentence today in relation to four principal offences.
First, one offence of common assault. This is sequence 3. It involves a contravention of s61 of the Crimes Act1900 (NSW). The maximum penalty for that offence is imprisonment for 2 years. There is no standard non-parole period.
Secondly, two offences of reckless wounding. These are sequences 6 and 8. Each offence involves a contravention of s35(4) of the Crimes Act. The maximum penalty for each offence is imprisonment for 7 years; and there is a standard non-parole period in each case for 3 years.
Thirdly, one offence of intimidation. This is sequence 11. It involves a contravention of s13(1) of the Crimes (Domestic and Personal Violence) Act 2007(NSW). The maximum penalty for this offence is imprisonment for 5 years. There is no standard non-parole period.
In addition to these four principal offences, you have asked me to take into account, in sentencing you for sequence 6, four matters on a Form 1 which I have certified. Three of those matters are matters of common assault. They are sequences 1, 7 and 10. The remaining matter on the Form 1 is a matter of damage property. That is sequence 9.
By consent, sequences 2, 4 and 5 are withdrawn and dismissed.
The victim in sequences 6, 8, 1 and 7 is your mother. The victim in sequence 3 is your (half) brother. The victim in sequences 11, 9 and 10 is your mother’s next-door neighbour, Mr Talevski.
The facts surrounding the four principal offences and the four matters on the Form 1 are contained in an agreed facts document which you signed on 27 February 2023, supplemented by an agreed document (concerning injuries to your mother) which you signed on 5 May 2023.
Those facts, recast by me as to style but not substances, are as follows.
As at May 2022, your mother was 53 years old and was “a small framed woman” who weighed approximately 40 kilograms. Your brother was aged 20 years; and you were aged 33 years. You weighed approximately 80kg to 85kg; and you were 175cm to 180cm in height.
Your mother and brother lived together in a house in the Sydney suburb of Greenfield Park.
Mr Talevski was the next-door neighbour to your mother and brother.
As at 19 May 2022, you were not living full-time with your mother and brother. Rather, you had been staying with them for a few days.
At about 4:15pm on 19 May 2022, your mother came home after a day at work. You were pacing the footpath outside that house. Then you went inside the house - you appeared agitated and affected by alcohol.
In circumstances not explained, an argument began between you and your mother about a text message that she had received from her daughter – your stepsister. For some unexplained reason, you demanded that your mother give you her daughter’s address, which your mother refused to do. You became increasingly agitated and aggressive.
Your mother went into the kitchen. You followed her. You pushed her onto the kitchen bench, causing her back to bend over that bench. You began to punch your mother repeatedly to the face. Your mother tried to defend herself and get away from you but was unable to do so.
It is these facts which constitute sequence 1.
Your brother heard your mother screaming and came out of his bedroom. He challenged you. You grabbed your brother under both arms and threw him into a cabinet in the dining room.
It is these facts which constitute sequence 3.
Your mother then approached you and told you to leave your brother alone. Your response to this was to repeatedly punch your mother to the face. She pleaded with you to stop. She told you she would give you her daughter’s address if you would stop hitting her.
These further punches to your mother’s face are not the subject of a separate charge but rather, by agreement between you and the Crown, are to be regarded as an ongoing course of conduct in connection with sequence 1.
You then walked to the dining room, picked up a wooden chair, and threw it at your mother. The chair hit her body. Your mother screamed and fell to the ground. You continued to throw chairs at her.
These acts are not the subject of any separate charge but rather, by agreement between you and the Crown, are to be regarded as an ongoing course of conduct in connection with sequence 6.
After you had thrown those chairs at your mother, you hit her over the head with a chair, causing a large laceration to the top of her head which resulted in bleeding.
It is these facts which constitute sequence 6.
You then tipped over a glass dining table, after which your mother ran into her bedroom to get her mobile phone. You followed her.
As this was happening, your brother remained on the floor of the dining room because he was scared he would be assaulted by you again.
After you followed your mother into her bedroom, you continued to scream at her. You grabbed her by both of her arms and dragged her outside of the house onto the front patio. You then threw her against the hood of her car and into the front right tyre.
It is these facts which constitute sequence 7.
You then headbutted your mother to her forehead causing a large laceration and bleeding. You continued to punch her to the face. Your mother was screaming for help. You hit her mobile phone out of her hand such that it landed on the driveway of the premises.
It is these facts which constitute sequence 8.
Your mother feared for her life. She ran to Mr Talevski’s house in order to get help. She knocked on his front door. Mr Talevski told her to go to the side gate and that he would meet her there.
You had followed your mother and you walked up the driveway to Mr Talevski’s side gate. You yelled, “Fuck you, fuck you, I am going to kill you.” There is no agreement between you and the Crown as to whom that remark was directed, or by whom it was heard. It is, therefore, not the subject of any charge, but, by agreement between you and the Crown, is to be regarded as “context” for the remaining matters.
Whether or not Mr Talevski heard you, he told you to get off his property. Mr Talevski let your mother into his backyard, closed the gate behind her and then rang 000.
Your mother ran to the back fence of Mr Talevski’s property and jumped into other properties in order to get away from you. She knocked on a door in another neighbouring street but could not get anyone to help her. Still fearing for her life, your mother subsequently hid in bushes.
In the meantime, you charged your body at the gate on Mr Talevski’s property, causing damage to a colour bond gate panel. It is these facts which constitute sequence 9.
You then jumped the gate, ran towards Mr Talevski, and began to punch him around the head, causing him pain. It is these facts which constitute sequence 10.
Mr Talevski then held you down, intending to hold you until the police arrived.
As he was holding you down, you said to him, “Get rid of your dog, or I will fucking stab you.” It is the second aspect of these facts which constitutes sequence 11. (I pause to observe there is no other reference in the agreed facts to Mr Talevski having a dog.)
You asked Mr Talevski to free you, which he did. You then walked out of his property.
Mr Talevski began looking for your mother, but he could not find her. He walked out the front of his property and saw police. He pointed you out to them.
You were cautioned and arrested by police and taken to Fairfield Police Station where you were read your rights and offered the opportunity of participating in an electronically recorded interview, which you declined – as you were entitled to do. You also refused to consent to a forensic procedure which was carried out nevertheless. Whilst at the police station, you took off your shirt and were aggressive towards the police officers.
Your mother was taken to Liverpool Hospital for treatment for the injuries she received at your hands.
At the hospital, your mother complained of headache, nausea and pain in her wrists. She underwent: urine analysis; CT scans to her head and facial bones; an x-ray to her left wrist and hand; and an x-ray to her right wrist.
The hospital staff noted a 5cm deep laceration above your mother’s left eyebrow; and tenderness to her left eyebrow / superior aspect of the orbit together with the bridge of her nose and left mandible. It is agreed between you and the Crown that these injuries are directly referrable to sequence 8.
The hospital staff also noted a 3cm laceration on the right side of your mother’s hairline. It is agreed between you and the Crown that that injury is directly referrable to sequence 6.
The hospital staff also noted:

tenderness to the left 1 area of your mother’s spine;

abrasion of your mother’s left lower back;

your mother’s left wrist was swollen with slightly reduced range of movement on extension; and

left hand tenderness on palpation of the carpels.

However, there is no agreement between you and the Crown as to which offence these injuries are attributable – although I am satisfied, beyond reasonable doubt, that it was you who caused those injuries. I cannot take these injuries into account in assessing the objective seriousness of either sequences 8 or 6.
There is no evidence of any long-term physical injury to your mother as a consequence of your offending conduct.
However, your mother has provided the Court with a victim impact statement. It graphically sets out the very substantial emotional damage you did to her on that date. By way of example, in the third paragraph in that statement, your mother wrote:

“I remember getting away for the 2^nd or 3^rd time I hid in the dark trying not to breathe heavy so you wouldn’t find me, telling neighbours to turn their lights off and whispering so you wouldn’t come and attack me again. I had blood running down into my eyes so I couldn’t even see where I was. I prayed to hear gunshots, I felt that was the only way you could be stopped. I have horrific flashbacks of that night of trying to wipe the blood off my face because I couldn’t see where I was running”.

So disturbed is your mother that, according to that statement, she now proposes to move from her house where she has lived for 25 years as a result of her ongoing fear of another attack from you.
It is necessary for me to make a finding of the objective seriousness of each of the four principal offences for an offence of its kind.
In my opinion, sequences 3 and 11 are slightly below mid-range; sequence 6 is above mid-range; and sequence 8 is at the mid-range.
Insofar as the four matters on the Form 1 are concerned, each of sequences 1, 7 and 10 will result in a meaningful increase in the sentence for sequence 6. However, sequence 9 will not (of itself) result in any meaningful increase in the sentence for sequence 6.
All four principal offences are additionally aggravated because:

you were on parole; and

each took place in the home of the relevant victim.

You did not give sworn evidence in the sentence proceedings. Rather, your subjective case was advanced through the following documents:

a sentencing assessment report dated 19 April 2023;

a psychological report dated 13 April 2023; and

various certificates of completion which you have completed whilst you have been in custody following your arrest on 19 May 2022.

The psychologist’s report was tendered without objection. It contains a very concerning history about your relationship with your mother and your stepfather. You did not give sworn evidence as to the accuracy of that history.
The Crown was given the opportunity of calling evidence to rebut that (unsworn) history. The Crown did not take that (admittedly unusual) step.
Rather, the Crown submitted that I should approach that history with caution – which I have done.
I have reflected at some length on this question.
Ultimately, (and notwithstanding that your mother has not had an opportunity to put her side of the story) I have concluded that, on the balance of probabilities, I should accept that history for the purpose of this sentencing exercise.
In large part that is because the completely irrational and extremely violent acts that you inflicted on your mother which, on the agreed facts, were without any immediate provocation at all, are consistent with such a history.
In his report, the psychologist sets out in considerable detail your family and developmental history; your education and employment history; your social and relationship history; your sexual history; your alcohol and illicit drug history; and your physical and mental health history.
Amongst other things, I am satisfied that, by having regards to those various histories, that your upbringing was dysfunctional and consequently reduces the moral culpability of your offending in the manner the High Court (in Bugmy v R (2013) 249 CLR 571) has directed sentencing judges to do.
Having set out those various histories in his report, the psychologist then expressed the following “Clinical Opinion” which, on the balance of probabilities, I accept:

“37. Mr Gordan Pash is a 35 year old Caucasian male who will be sentenced for serious violence offences against his family members. He described a traumatic upbringing, where he was excessively and inconsistently punished by his mother and stepfather, which would have maintained a level of fear throughout his childhood, developed significant resentment towards his parents, and predisposed him to mental health disorders later in life. This inconsistent and volatile parenting style would have hindered his ability to develop healthy coping strategies and normalised violence as a form of problem solving and control. There was an early normalisation of drug use, especially where his stepfather dealt cannabis at his family home. He witnessed his parents use cannabis and this normalisation was evident in him bringing cannabis to high school, which led to an expulsion. His early dependence in substances and alcohol had essentially circumvented opportunities to develop any emotion regulation abilities without drugs.
38. From the age of 15, Mr Pash was evicted from his family home [this appears to be an error because, at paragraph [11] of his report, the psychologist records that the “eviction” occurred when you were 12 years of age], where he then began associating with various delinquents and antisocial peers during periods of homelessness and residing in refuges, which further normalised criminal behaviour. He further learnt to use his anger as a form of protection from being harmed by other antisocial individuals, which initially was adaptive for his self-preservation. However, over time, this aggressiveness, being a secondary emotion for his anxiety and fears of other people, became one of his only emotional responses, which perpetrated his aggressive behaviours throughout adolescence and childhood. His ongoing strained relationship with his parents would have perpetuated his resentment towards them, especially because he blamed them for all misfortunes he experienced, such as his sexual abuse in juvenile detention.
39. Given Mr Pash’s early aggressive and antisocial behaviours, which continued into adolescence, he would have likely met criteria for Conduct Disorder. As he became more associated with antisocial peers and drug abusing individuals, his respect for authority figures continued to diminish, which were already predisposed by his low trust in his parents due to their abusive parenting styles. This normalisation can be seen in his extensive criminal history, which was perpetrated by his polysubstance abuse, which would have lowered his inhibition, problem-solving abilities, and impulsivity. His polysubstance dependency and criminal behaviour have mutually perpetuated each other over his lifetime.
40. Throughout Mr Pash’s lifetime, he had experienced multiple traumatic experiences, including his stepfather’s physical abuse, being assaulted and robbed by other delinquents and antisocial peers, being sexually abused by a correctional officer, and the traumas of being assaulted in gaol over the years. The sexual abuse would have further reduced his trust in authority figures and people in general, which would explain his poor compliance which supervision orders. He displayed the hallmarks of trauma, which was largely undiagnosed and untreated until recently in gaol. Although he had attempted residential rehabilitation, he had never received standard psychological or psychiatric treatment for his mental health, which would have lowered his chances of success in rehabilitation. Mr Pash identified some psychotic symptoms and mood disorder-like symptoms, which warranted further assessment of monitoring.”

Having made those observations, the psychologist noted that you met the diagnostic criteria for the following disorders: antisocial personality disorder; post-traumatic stress disorder; stimulant use disorder, severe, in early remission in a controlled environment; opioid use disorder, severe, in early remission in a controlled environment; and alcohol use disorder, severe, in early remission in a controlled environment.
The psychologist went on to record in his report:

“42. Although Mr Pash’s substance use disorder is deemed to be in “remission”, this was because he was incarcerated and hence “in controlled environment”. This suggested that the moment he is given liberty, he would likely relapse given that he had not acquired the relevant skills to manage his substance use disorders and mental health. His prognosis is fair, especially because he had not received standard psychological intervention.
43. The index offences appeared to have occurred in the context of Mr Pash’s overwhelming resentment towards his mother, which had accumulated over his lifetime. His normalisation of violence and antisocial behaviours, and lowered trust in authority figures would have increased his risk of violent outbursts. Anger being one of his only negative emotional responses, which he learnt over the years of self-preservation in his younger years would have fuelled his aggressive outburst toward his mother and brother. His polysubstance intoxication would have lowered his executive functioning abilities, such as his inhibition and consequential thinking. Mr Pash had a Moderate risk of violent re-offending based on the HCR-20. He has a number of criminogenic factors that should be targeted in his mental health intervention.
44. Pleasingly, Mr Pash has demonstrated a history of abstinence when he had stability in his life and prosocial supports. His insight into his mental health, drug use, and offending patterns, especially where he was willing to engage in intensive mental health intervention as well as residential rehabilitative services are significant protective factors for his offending risk. He had demonstrated an ability to identify effective psychological strategies he probably learnt from his correctional psychologist, which suggested that he was amenable to treatment.
45. There ar e no particular reasons that custody would be more onerous for Mr Pash compared to other inmates.”

As the psychologist noted in his report, you have an extensive criminal record both as a juvenile and as an adult. Whilst your offending as a juvenile cannot be held against you, the relatively extensive history of violent offending as an adult means that the leniency which, in appropriate circumstances, can be extended to a first offender does not apply to you.
You entered a plea of guilty at the earliest opportunity and, accordingly, you are entitled to an effective discount of 25 per cent because of the utilitarian benefit of those pleas of guilty. As I intend on imposing an aggregate sentence, the discount of 25 per cent will be applied to the indicative sentences underpinning that ultimate aggregate sentence.
As I have already indicated, you did not give sworn evidence in the sentencing proceedings and, in particular, you did not give sworn evidence of your remorse. You did, however, express remorse in fairly graphic terms to the psychologist who prepared the report on your behalf. He regarded you as “a reliable historian”. In the circumstances, and taking into account the totality of that report, I am prepared to accept that you are genuinely remorseful for your offending conduct.
Remorse is an important factor in assessing an offender’s prospects of rehabilitation. By having regard to, again, the totality of the psychologist's report, I regard your prospects as being guarded. Those prospects would be enhanced by a longer period on parole and, accordingly, I shall make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence and notwithstanding that you have served previous terms of imprisonment.
It follows from what I have just said that I am satisfied that no sentence for any of the four principal offences other than a term of full-time imprisonment is appropriate.
The start date of the term of imprisonment will be the date of your arrest, 19 May 2022 and notwithstanding that between that date and 11 February 2023 you were serving the balance of parole for an earlier sentence. This is to give effect to totality.
In fixing the head sentence, I have specifically taken into account the onerous nature of the custodial environment in the post-pandemic era.
And in fixing the aggregate sentence, I have taken into account the fact that there are three victims, although undoubtedly the most severely impacted victim was your mother.
Because of your mental health issues and your dysfunctional upbringing, general deterrence is of reduced significance – but still of some relevance.
However, specific deterrence and the need to protect the community are considerations which are fully engaged.
As I earlier indicated, I intend imposing an aggregate sentence. It is, therefore, necessary for me to state the indicative sentences which underpin that ultimate aggregate sentence.
In relation to sequence 3, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 12 months; after the discount, the indicative sentence is imprisonment for 8 months.
In relation to sequence 6 (and taking into account the matters on the Form 1), except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 5 years 6 months; after the discount, the indicative sentence is imprisonment for 4 years 1 month and the indicative non-parole period is 2 year 7 months.
In relation to sequence 8, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years; after the discount, the indicative sentence is imprisonment for 3 years and the indicative non-parole period is 1 year 11 months.
In relation to sequence 11, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 16 months; after the discount, the indicative sentence is imprisonment for 12 months.
In result, Mr Pash, for the offences of sequences 3, 6, 8 and 11, I sentence you to an aggregate term of imprisonment of 6 years.
I fix a non-parole period of 3 years 10 months to date from 19 May 2022 and which will expire on 18 March 2026.
I fix a balance of 2 years 2 months to date from 19 March 2026 and which will expire on 18 May 2028.
I order that the report of Mr Andrew Wong, psychologist, dated 13 April 2023 (Exhibit 1) goes with the warrant.

Decision last updated: 04 August 2023

Medium Neutral Citation:	R v Pash [2023] NSWDC 297
Hearing dates:	5 May and 21 June 2023
Decision date:	04 August 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 6 years with a non-parole period of 3 years 10 months
Catchwords:	CRIME-SENTENCE - common assault; reckless wounding; intimidation; damage to property.
Legislation Cited:	Crimes Act 1900 (NSW), ss35(4), 61 and 195(1)(a); Domestic and Personal Violence Act 2007 (NSW), s13(1).
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571.
Category:	Sentence
Parties:	Rex (Crown) Gordan Pash (The Offender)
Representation:	Ms Pelliccione - (ODPP Parramatta) Mr Cifuentes - Solicitor for the Offender
File Number(s):	2022/00145363
Publication restriction:	Nil