R v Velisavljevic

[2019] NSWDC 782

District Court

New South Wales

Medium Neutral Citation:	R v Velisavljevic [2019] NSWDC 782
Hearing dates:	17 December 2019
Date of orders:	17 December 2019
Decision date:	17 December 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of three years and two months with a non-period of two years: at [38].
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Injury, harm, loss or damage not substantial SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Factual basis for sentence — General principles — Objective seriousness SENTENCING — Sentencing procedure — Agreed facts — Disputed facts SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Bugmy (2013) 249 CLR 571
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Dejan Velisavljevic (Offender)
Representation:	Ms A Brown (Solicitor for the Crown)   Mr S Dayeian (Counsel for the Offender)
File Number(s):	2017/27813

Judgment

1. The offender, aged 40 years, has pleaded guilty to one count of reckless wounding under s 35(4) of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment with a standard non‑parole period of three years.

2. The first stage of the sentence proceedings involves resolution of a dispute as to the facts upon which the offender is to be sentenced. The matter was initially listed for trial and, following representations to the Director of Public Prosecutions, the offender was was arraigned on an indictment containing two counts on 25 February 2019, the first of count of wounding with intent under s 33 of the Crimes Act 1900 and the alternative count of reckless wounding under s 35. The Crown accepted the plea of guilty to count 2 in full satisfaction of the indictment and the matter was listed for sentence with a three hour estimate, including a disputed facts hearing.

Disputed Facts

3. On August 2019, when the matter was fixed for hearing today, it was said that the contested facts hearing was estimated to take one day. At the commencement of the hearing today, the Crown tendered a sentence bundle in the conventional form, and this contained a three page document headed Agreed Facts, indicating that the facts in dispute were bold and underlined. That document was not signed, but I accept from Mr Dayeian of counsel, who appears for the offender today and has only been briefed within the last month, that the instructions from the offender to prepare that agreed facts document were provided to previous legal representatives of the offender. The circumstances in which those instructions were provided obviously have not been the subject of any evidence or explanation before me.

4. The indictment alleges that on 28 January 2017 at Surry Hills, the offender wounded Richard Burns, being reckless as to causing actual bodily harm to Richard Burns. The Crown case as outlined in the agreed facts statement was that the offence involved stabbing of the victim, Richard Burns, inside the unit occupied by Mr Steve Pope at 129/42 Belvoir Street, Surry Hills, or otherwise known as the Northcott estate, a housing commission complex. It was said that at about 1am the victim, Burns, was in the lounge room in the unit with two other people, Jacqueline Stewart and Troy Firth. Mr Shane Laurie was also in the apartment but asleep in the bedroom. It was said that at about this time, the offender burst into the unit, wearing a fluorescent yellow jacket, and started yelling about his mobile phone, and said, "Where's my phone?" He then turned to Burns and said, "You’ve got my fucking phone," and Burns got up off the couch and said, "What are you talking about?" The offender, with a black‑handled kitchen knife in his hand, swung his arm towards Burns’ head and stabbed him in the side of the neck. The document goes on to assert that Laurie was awoken by the sound of yelling, got out of the bed and went to the lounge room, where he saw Burns with blood on the left‑hand side of his neck. Laurie saw the offender holding the knife out in front of him, shaking. He said, "What are you doing stabbing people? Get out of here." The offender left and went into the neighbouring unit, unit 128, still holding the knife.

5. As the document was prepared, it suggested that the offender disputes that,

• he was holding a knife in his hand;

• he stabbed Burns in the neck;

• Laurie saw the offender holding the knife; and that

• the offender left the unit still holding the knife.

I will return to the subsequent dispute as to the facts.

6. The agreed facts then go on to show that the Police arrived. Evidence was given today by Inspector Beckinsale, who said he could hear sounds of a metallic object clinking against a ceramic surface and that it sounded like the sound made by the washing of cutlery. He looked through a window of the unit and he saw the offender standing in the bathroom. He grabbed something out of the sink with his left hand and used his body to conceal Beckinsale's view. Then he left the bathroom concealing what he was holding.

7. They managed to persuade the offender to open the front door. The Police told him to drop the bag that he was carrying and he refused to do so. So they deployed the taser, which connected with the offender and he was handcuffed. The offender was told that he was under arrest for stabbing someone. He immediately said, "I haven't stabbed anyone," and he said, "I didn't do anything." A green shopping bag that he had been carrying was found to contain a fluorescent yellow jacket, some fishing tackle and a knife wrapped in a plastic bag. The offender's DNA was found only on the spray jacket and not on the other items. He was arrested and declined to participate in an interview. He did say that he was asleep, he did not hang around with the next door neighbours and he had been staying with Shane, initially in unit 129, and then said it was unit 128.

8. The victim was treated for a stab wound to the left neck, measuring between 1 to 2 centimetres in length and reaching the subcutaneous tissue. Photographs of the knife show it was about 20 centimetres long.

9. Further dispute as to the facts were set out before me today, Mr Dayeian said that in addition to what was indicated in the document, he now wished to assert on the behalf of the offender a number of matters. Firs, that the incident occurred outside the Northcott premises, secondly, that there was a dispute as to what had happened just before the incident, thirdly a dispute as to the weapon used, whether it was a knife or a ring worn by the offender, fourthly who was present, namely whether it was just Burns and the offender, or whether other people were there and finally, whether it was excess self-defence. I should say immediately that when the offender gave evidence he did not put anything which asserted excessive self-defence.

10. The fact finding process was not made any easier by the absence of a number of witnesses who were proposed to be called in the hearing. The first witness called was Troy Firth and his statement became exhibit B. He said that he was in the unit with his girlfriend Jacqui Stewart and Mr Burns. Sometime after midnight a guy burst through the door and lunged at Burns on the lounge and he started yelling and screaming, "You stole my phone." He said he saw something which looked like a knife about 35 centimetres long in his right hand. He said the guy then turned and looked at him and pulled the knife back as if to, "swing at me”. He told him “to relax and calm down” He said that the offender was wearing bright fluoro type clothing, and that he knew him as Danny. That statement was taken on 19 April 2017, about three months after the event.

11. His evidence‑in‑chief was consistent with the statement, and there was nothing to suggest that he was under the influence of any substance or otherwise that his recollection was not reasonably accurate. It was put to him that the offender was not inside the unit and that the incident occurred outside the unit, but he denied those. He said that he saw the event.

12. Inspector Beckinsale also gave evidence and his statement became exhibit D. He described arriving at the scene after 1.20am and the events that occurred leading to the apprehension of the offender, as I have summarised from [6] onwards in the statement of agreed facts.

13. It was anticipated by the Crown that they would have available two further witnesses. First, the victim Richard Burns who was said to be able to give evidence by video link from Condobolin. Then subsequently it was said that arrangements had been made for him to drive to Sydney to give evidence. But in any event, the Crown was unable to produce Mr Burns by any method today and does not rely upon his statement dated 28 January 2017, in view of the fact that he was not present for cross‑examination. The statement was provided to the Court. Although it is not in evidence, the parties are aware that it contains assertions in the contemporaneous statement that the attack upon Burns occurred not inside his unit but in the foyer or lift well of the building. I mention that only to illuminate the circumstances in which the factual dispute has arisen and is to be resolved.

14. The Crown also intended to call Shane Laurie to be available for cross‑examination on the statement dated 28 January 2017, but he was also not available and the Crown does not press the statement. That is probably not very significant given that there is no dispute that on the agreed facts that Mr Laurie was asleep in the bedroom within the apartment at the time. There is no dispute as to that matter, although there is, in so far as Mr Dayeian denies that his client was inside the unit, a dispute with Laurie saying that the offender was in the unit.

15. The offender gave evidence and said that he had been outside the Northcott building and he fell asleep at about 10pm. When he woke up, the medication that he was holding in his hand was gone, he felt someone brush against him, and he ran to catch up with the person he thought had taken the medication. It was Mr Burns, a man he knew lived in the complex. He said he grabbed him, Burns head butted him, and then with a closed fist the offender hit Burns. He said that he wore a number of rings, including a large lion's head ring, and he hit him clean on the jaw.

16. He said that was what caused the injury to Burns. He said he went through his pockets and he found what he described as his, "xannies", presumably Xanax medication. He acknowledged that Burns was bleeding, and he saw that there was blood on his ring.

17. When he went back to the unit where he was couch surfing, he got rid of the ring because he panicked, because it had blood on it, and he threw it into the garbage chute. He denied having any knowledge of the knife that was found in the bag.

18. He also denied that he owned a mobile phone at that time which, if true, would cast doubt upon the assertion that he was looking for his mobile phone at the time that this incident occurred. He said that he never heard of Laurie, Firth, or Pope, and had never been into that unit.

19. The Crown quite properly put to him the requisite elements of the Crown case and the factual matters which had been the subject of, a supposedly previous agreement. He denied those matters, and asserted he was not aware of what was in the bag.

20. In particular, he was not aware that the knife was in the bag. In short, Mr Dayeian asks me to accept the version given by the offender in evidence, or at least not find beyond a reasonable doubt against him on the facts that are in dispute.

21. I am left in a state of some considerable disquiet about the whole process. Having seen the offender give evidence notwithstanding, grave suspicions and notwithstanding some unsatisfactory aspects of his evidence, I cannot be satisfied beyond a reasonable doubt on the limited evidence before me that he did stab the offender with a knife inside the unit.

22. I come to that finding applying the test that juries are told to apply to witnesses' evidence, and I cannot say that his version of events is not a version which could reasonably be true, and that is not withstanding the apparent consistency and reliability of the evidence of Mr Firth, who is the only other witness.

23. The finding that I therefore make is that the offender was in an altercation with Mr Burns and struck him, causing the wound which was shown in the photographs. The wound was inflicted by a sharp ring that was worn by the offender at the time. That that altercation occurred outside Northcott  apartment complex, whether in the foyer or in the street it is unnecessary to decide.

Evidence on Sentence

24. The offender gave evidence in which he firstly affirmed the accuracy of history given to the psychiatrist Dr Furst and a treating psychiatrist Dr Rosenman. He has been on a disability support pension for 11 years with a diagnosis of paranoia and schizophrenia. He is on a drug rehabilitation program including Suboxone.

25. He takes full responsibility for his offending and acknowledges that the victim would have suffered physically and mentally. He says that he was too young and not ready for rehabilitation when he first started, but at the age of 40 he now recognises a need for significant engagement and rehabilitation.

26. He was remorseful and said that he was not proud of what he had done. He described serious stab wounds being received in January 2018 during an attack on his life in custody. He is in limited protection so that he does not have access to any programs at the moment. He has, as the Crown notes by inclusion of the prior facts, a record including custody of a knife in July 2015, common assault and custody of a knife in December 2014, custody of a knife in November 2014, and possession and custody of a knife in April 2005.

27. He has spent, it is agreed, two years and three months in custody in relation to this offence, since his arrest on 28 January 2017. He has been bail refused in relation to other matters for some periods and has been on bail for some short periods. It is agreed that the term of sentence which is to be imposed should commence on 17 September 2017.

28. His record includes a number of periods in custody, an 18 month non parole period for robbery in company in 2007, a six month non parole period for assault occasioning actual bodily harm in 2015. Fixed sentences of three months in 2015 for custody of a knife in a public place, and in 2016. Short sentences for goods in custody and possess implements in 2015. I have had regard to the facts in relation to the previous offences involving knives and his record disentitles him to any leniency.

29. He pleaded guilty on the first day of trial, and it is agreed that a 10% discount on a term of imprisonment should be imposed.

30. His subjective case as set out in his evidence and the reports of the doctors discloses, as the Crown concedes, De La Rosa ((2010) 79 NSWLR 1) considerations but the Crown submits that this is a case where his mental state requires, perhaps, more emphasis on specific deterrence as a result of the danger that he poses to the community.

31. He was born in Australia in 1979, and he returned to the family home in Serbia when he was five years of age. He lived in Kosovo, close to a war zone and he witnessed violent events over several years, he was exposed to a significant trauma. There is a significant history of substance abuse and despite his earlier attempts at rehabilitation he lapsed back into drug use.

32. He was still using cocaine as well as Xanax to treat his anxiety disorder up to the time of the offence. It is put that his moral culpability is somewhat reduced according to both De La Rosa and Bugmy ((2013) 249 CLR 571) principles, though it is not submitted that he bears no moral responsibility at all and clearly that is an appropriate concession to make.

33. There are no aggravating factors pointed to by the Crown, and I have acknowledged the late plea of guilty, and the expression of remorse and there is no evidence of significant lasting effects from the injury beyond the description of the wound and the photograph showing the wound apparently closed with the use of adhesive tape.

34. Dr Firth diagnosed his anxiety disorder, substance use disorder and personality disorder as contributing to the offending and proposed an intensive regime of psychiatric care.

35. As the treating psychiatrist Dr Rosenman reflected his treatment has not been easy and the disorderliness of his social life has made regular attendance difficult for him, but he has always appeared straightforward and honest with him and tries to comply with treatment. He diagnoses the mental condition as a disorder in impulse control and anxiety of paranoid sensitivity. His treatment is making a difference to his comfort and his impulse control, He has always conducted himself well and politely in his interactions with Dr Rosenman .He has tried to comply with instructions despite the disorder of his life and periods of imprisonment making it more difficult.

36. As his counsel acknowledges this was an objectively serious offence but below mid-range in my view given that it was largely unprovoked and certainly not a reasonable reaction to his expressed belief that the victim had taken his medication from him.

37. As I indicated earlier the anticipated argument as to self-defence was not pursued and quite properly in my view.

38. The orders that I make are:

1. The offender is convicted of the offence.

2. I impose a a sentence of imprisonment of three years and two months to commence on 17 December 2017.

3. I impose a non-parole period of two years expiring on 16 September 2019, so that the offender is eligible to release to parole on these matters today.

4. I find special circumstances.

These extempore remarks were revised without access to the court file

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Decision last updated: 21 January 2020