Kovaleff v R

1. [1]

   HARRISON AJA: I agree with Sweeney J.

2. [2]

   SWEENEY J: Kristian Kovaleff seeks leave to appeal against two sentences imposed upon him by Rothman J on 30 March 2023. For an offence of murder, for which the maximum penalty was life imprisonment and a standard non-parole period of 25 years applied because the victim was a child, his Honour imposed a sentence of 34 years imprisonment with a non-parole period of 24 years. For an offence of wounding with intent to cause grievous bodily harm, for which the maximum penalty was 25 years imprisonment with a standard non-parole period of seven years, the sentence imposed was six years and nine months imprisonment with a non-parole period of four years and nine months. The sentence for the murder offence commenced two years after the commencement of the sentence for the wounding offence so the total effective sentence was 36 years imprisonment with a non-parole period of 26 years.

3. [3]

   The victims of both offences were referred to by pseudonyms because they were both under 18 years old at the time of the offences, and they will be referred to by those pseudonyms in this judgment.

4. [4]

   Mr Kovaleff requires leave to file his notice of appeal out of time. He explains the delay sufficiently as being attributable to misunderstandings about the appeal process with his former solicitor.

5. [5]

   He seeks leave to rely on the following grounds of appeal. Ground 1 is that his Honour erred in the application of a 15% utilitarian discount, as opposed to a 25% discount, pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Act’). Ground 4 is a complaint that the sentence is manifestly excessive. Grounds 2 and 3, which were originally specific grounds alleging his Honour failed to give effect to his findings about Mr Kovaleff’s youth and limited intellect and his finding of special circumstances in the total sentence, were relied on at the hearing as supportive of the assertion of manifest excess in Ground 4.

6. [6]

   Mr Kovaleff pleaded guilty to the offences in the Local Court. He was sentenced on the basis of agreed facts. There was no challenge to his Honour’s recitation of the agreed facts. A thorough statement of the facts of the offences is necessary to understand the grounds of appeal and submissions made in support of them.

Facts

1. [7]

   The victim of the wounding offence, AK, and Mr Kovaleff were in an intimate relationship. She was 17 years old at the time of the offence, as was the deceased, LD, who was AK’s best friend.

2. [8]

   Towards the beginning of the relationship between Mr Kovaleff and AK, he had told her that there were times when he thought he wanted to kill people. He told her he had always been “sick in the head” and wanted to kill someone. He told AK, more than once, that he wanted to kill her, but on 15 December 2020 he said he no longer wanted to kill AK because he cared about her and would be upset if she died.

3. [9]

   The offences occurred on 18 December 2020. A month before that date, Mr Kovaleff pawned his iPhone and purchased a cheap replacement. With the money he received for the iPhone he purchased equipment used in the offences and for use after the offences had been committed.

4. [10]

   A week before the offences were committed, Mr Kovaleff and AK went to a motel. He went there with a rope to tie her up and a knife to kill her. He tied her with the rope and had planned to kill her that night. While she was tied up, AK told Mr Kovaleff that she and the deceased, her friend LD, were going to a hotel a week later. Mr Kovaleff then decided he would not kill AK that night but would wait until the week after and kill both AK and LD.

5. [11]

   In his oral evidence in the sentence proceedings, Mr Kovaleff confirmed that at the motel the week before the offences he planned to kill both AK and LD. He also said he killed LD only because he wanted to have sexual intercourse with AK and would not have been comfortable if LD was present.

6. [12]

   On the evening before the offences were committed and early in the morning following them, Mr Kovaleff searched the internet using a second prepaid phone. He searched for tools that could 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. He went to the hardware store. He did not purchase a nail gun. He purchased duct tape and rope which he had in his possession when the offences were committed. He also purchased a handsaw, to be used if the victims’ bodies did not fit into the bag or the boot of his car. A large black bag was found in the boot of Mr Kovaleff’s car by police on 19 December 2020.

7. [13]

   On Friday, 18 December 2020, LD had booked a room at the Meriton Apartments in Parramatta to celebrate her 18th birthday two days later. She planned to spend the night in the room with AK. LD and AK asked Mr Kovaleff to assist them with checking in, which required someone over the age of 18.

8. [14]

   On 18 December, after the victims attended a farewell barbecue at their high school, Mr Kovaleff collected them at 2:30 PM from the station at Padstow. AK asked him whether he had brought the knife with him, referring to a large knife which he frequently carried. He said he did not have the knife but in fact he did. After checking in, Mr Kovaleff took the knife to the room and hid it under the couch. He also brought duct tape and rope into the room in a bag he was wearing.

9. [15]

   Mr Kovaleff and the two young women arrived at the Meriton Apartments shortly before 5 PM. He had to call a friend with a credit card to assist with checking in, which process was delayed. At about 7:20 PM, the two women, Mr Kovaleff and his friend entered the room. Mr Kovaleff’s friend left about 10 minutes later.

10. [16]

    Just before 8 PM, Mr Kovaleff and AK went to his car and AK noticed that the boot of his car was unusually full. She noticed a wooden box, which was in fact a large black bag, a saw, a blanket and a large plastic bag.

11. [17]

    At around 8:30 PM, the two young women were readying themselves to go swimming in the pool. Mr Kovaleff was behaving unusually in that he was standing at the door watching them.

12. [18]

    About 8:40 PM, LD was in the bathroom alone. Mr Kovaleff asked if he could enter and was told to wait until she was dressed. Shortly thereafter, Mr Kovaleff entered the bathroom in a manner as if to frighten LD. He began stabbing her with the knife.

13. [19]

    AK heard a noise from LD. After a few seconds she thought that Mr Kovaleff was killing LD and went to the bathroom. She saw Mr Kovaleff stab LD forcefully and repeatedly to her stomach as LD stood with her back against the sink. As she was being stabbed, LD screamed at Mr Kovaleff to stop. AK told Mr Kovaleff to stop and he turned and told her to “back off” or “stay out of it”.

14. [20]

    As Mr Kovaleff left the bathroom, AK put her hand on his hand which was holding the knife, and tried to calm him down. He told her not to touch the knife because it would cut her. He directed LD and AK into the bedroom. They went into the bedroom and he followed them. He stabbed LD again as she stood against the bedroom wall.

15. [21]

    Mr Kovaleff and AK went into the lounge room, leaving LD in the bedroom. AK walked towards the front door to leave but Mr Kovaleff told her not to do so. She called out to LD, telling her to shut and lock the bedroom door, then moved to stand against the closed bedroom door with LD inside the bedroom.

16. [22]

    Mr Kovaleff then tried to get into the bedroom and ordered AK to move aside, threatening her with the knife. She remained guarding the door. Mr Kovaleff stabbed her once in the stomach. That was the basis of the wounding offence.

17. [23]

    AK went back into the bedroom to find LD lying on the floor staring at the ceiling and gasping. She unsuccessfully tried to call emergency services by repeatedly pressing the power button on her phone. She was frightened that Mr Kovaleff would kill her. He grabbed her phone. He also had LD’s phone. He asked LD for her phone pass code as she lay dying. He looked at AK and remarked that she had been stabbed. She asked him to call an ambulance. He did not. He told her to come with him to the living room. She did so and sat on the lounge. He apologised and said he should not have stabbed her.

18. [24]

    Mr Kovaleff was pacing. He still had the knife. He said he was going to get “25 years”, “a lifetime in prison” and said, “I knew if I did this, I’d regret it”. He told AK he would not stab her again. She again asked him to call an ambulance. He said he could not do that yet, that he would call an ambulance and she would survive, but not yet, he “just want[ed] to chill with [her] for a bit”. Mr Kovaleff appeared upset that he had stabbed AK. He told her he was “sick in the head”. He put the knife on the table and told AK not to stab him. She began to feel dizzy and may have lost consciousness.

19. [25]

    When she woke, AK found that Mr Kovaleff had wrapped duct tape around her stomach, holding some clothing over the wound. She then noticed that his bag contained duct tape and rope. Mr Kovaleff told AK he did not want her to die. He said: “I’m a monster, I just killed your best friend”. Mr Kovaleff told AK he had hidden the knife under the couch. At one point he put the knife to his neck and asked AK “should I do it?”.

20. [26]

    AK heard moaning coming from the bedroom and at one stage what appeared to be a yell. Mr Kovaleff went to check on LD. When he returned to the lounge room he told AK that LD was “stone cold dead”. He said, “I literally just murdered someone” and “I’ve killed an innocent person”. AK vomited.

21. [27]

    Mr Kovaleff began singing a song entitled “I’m a Bomb”. It was a song he would often play to AK during their relationship. The lyrics include “I’m a bomb and I’m about to blow up”. He had also sung that song the week before at the motel. Mr Kovaleff told AK that he was going to move LD into the bathroom so that he and AK could lie on the bed. AK refused. Mr Kovaleff then brought 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 and lay on it next to AK. She repeatedly asked him to call an ambulance and he replied that he would do it later.

22. [28]

    Mr Kovaleff said in his evidence in the sentence proceedings that he wanted to have sex with AK and that he had wrapped her with clothing and duct tape to keep her alive for that purpose. He asked her whether he should turn himself in or run, then said he was going to call an ambulance and then turn himself in. AK began vomiting blood. Mr Kovaleff put on some of her clothing to conceal bloodstains on him and his clothing. He rang his father at 10:22 PM. He told his father he had just stabbed two people. AK called out that she was alive. Mr Kovaleff asked his father whether he should try to “make a run for it”. His father told him that he would only be caught and he should call an ambulance.

23. [29]

    Mr Kovaleff called 000 at 10:36 PM using AK’s phone. He terminated the call, worried that the call and his location could be traced. At 10:37 PM, some two hours after the stabbings, he left the room with both victims’ mobile phones. The emergency operator returned the call to AK’s phone. Mr Kovaleff answered the call as he walked towards the lifts. He 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, intending to deflect guilt from himself.

24. [30]

    AK tried to use the phone in the hotel room but was unsuccessful. She left the room and sought help, and ended up in the hotel lobby.

25. [31]

    Police arrived at 10:45 PM. LD was located in the bedroom, already deceased. AK was taken to hospital.

26. [32]

    LD was found to have stab wounds to her front trunk and abdominal area, the left side of her back and over her right flank, an incision in the left thigh and lacerations to her arm and hands. The wounds to her hands were defensive injuries.

27. [33]

    AK was found to have suffered a stab wound to the right abdominal area which perforated part of her duodenum and its posterior wall. There was a pancreatic contusion. These injuries, if left unattended, may have been life threatening.

28. [34]

    After leaving the hotel, Mr Kovaleff drove towards Westbound McDonald’s. He called his father, who arranged for a friend to collect him and take him to his father’s place. While driving, Mr Kovaleff rang a friend, who described him as doing a “kind of a laughing cry” and said that he had “killed them”, referring to the two victims.

29. [35]

    In the early morning of 19 December 2020, police contacted Mr Kovaleff’s father, who took Mr Kovaleff to Parramatta police station. Mr Kovaleff did not appear to be affected by drugs or alcohol.

Victim impact statements

1. [36]

   His Honour noted from the victim impact statements the horror of the offences and the loss experienced by LD’s family, and the effect on the surviving victim.

Mr Kovaleff’s subjective circumstances

1. [37]

   His Honour recounted Mr Kovaleff’s subjective circumstances. They were that he was 19 at the time of the offences. Before his arrest he had been living in share accommodation. He left home at 17 years of age, reportedly because his father had married a woman with whom he had had children and Mr Kovaleff felt there was no room in the home for him. His mother had left him when he was three years old but had contacted him after his arrest.

2. [38]

   His Honour had reports from psychiatrists, Dr Richard Furst and Dr Kerri Eagle. Mr Kovaleff feigned psychiatric illness for two years after his arrest, during which he reported symptoms consistent with psychosis. In April 2021, Dr Furst was asked to assess Mr Kovaleff’s fitness to stand trial and whether he had available any mental health impairment defences. Dr Furst expressed the opinion that Mr Kovaleff was fit to be tried, did not have a mental illness defence and was not suffering substantial impairment or abnormality of mind, but rather that his reported symptoms were consistent with malingering. In his second report of 23 January 2023, after Mr Kovaleff had pleaded guilty and admitted that he had been feigning mental illness and psychosis for over two years, Dr Furst assessed him as having no indications of thought disorder or responding to internal stimuli. He assessed Mr Kovaleff as appearing to be of lower than average intelligence. He described Mr Kovaleff 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.” He said that people with such a psychological/cognitive profile “frequently develop obsessive tendencies and abnormal fascination/rituals, including in relation to violence”.

3. [39]

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

4. [40]

   The Crown arranged for Dr Kerri Eagle to assess Mr Kovaleff. She assessed him first in December 2021, at which time she concluded it was likely he was fabricating or embellishing mental illness symptoms for the purpose of securing a mental health defence. She thought he might suffer an antisocial personality disorder. In October 2022, Dr Eagle strengthened her view that Mr Kovaleff had been malingering.

5. [41]

   Dr Eagle thought there was an elevated risk of future offending by Mr Kovaleff, having regard to the premeditated nature of the violent offending and his callousness, manipulative presentation and violent fantasies.

6. [42]

   Rothman J noted that Mr Kovaleff admitted to feigning psychotic symptoms. Dr Furst and Dr Eagle both considered that his capacity to fool experienced mental health practitioners over a sustained period was an indication that if Mr Kovaleff was on the autism spectrum, he was at the lower end and was not suffering a disorder as a consequence. Neither doctor considered they could diagnose a sexual disorder or form an opinion that the offending was sexually related.

7. [43]

   Doctors Eagle and Furst differed as to whether Mr Kovaleff suffered PTSD. Neither suggested that he had such a condition before the offending. His Honour found that while such a condition may have an impact on the onerousness of his incarceration, it did not ameliorate Mr Kovaleff’s culpability for the offending.

8. [44]

   Rothman J stated that to the extent there could be an explanation of Mr Kovaleff’s motivation, it was serious feelings of abandonment arising from the departure of his mother and the subsequent marriage of his father, which he was unable to deal with. The two psychiatrists said that personality disorders are difficult to diagnose with limited exposure to a person. Rothman J found it impossible to find that Mr Kovaleff suffered a personality disorder which prevented him from dealing with abandonment and prevented him from being equipped to handle relationships.

9. [45]

   His Honour accepted an opinion by clinical neuropsychologist, Lucienne Barhon, that Mr Kovaleff operates at a borderline intellectual capacity. Because the testing conducted by Dr Barhon relied on the performance of Mr Kovaleff, who had already demonstrated the capacity to feign mental illness, his Honour thought that the cognitive testing conducted was unreliable. However, his Honour sentenced Mr Kovaleff on the basis that the cognitive testing accurately reflected his capacity.

Objective seriousness of the offences

1. [46]

   His Honour assessed the objective seriousness of each offence as well above mid-range but did not consider that the imposition of the maximum penalty for the murder offence was warranted. The factors his Honour took into account in assessing the objective seriousness of the offences were that each involved the use of violence and the infliction of substantial injury, emotional harm and damage, and each involved a grave risk of death. Each offence involved the use of a weapon. Each victim being present when the other victim was attacked must have been terrifying and exacerbated the terror caused by their stabbing. Each victim was left to suffer from the wounds inflicted in circumstances where, if immediate attention had been summoned, the deceased may not have died and the emotional and physical damage to AK may have been ameliorated. However, his Honour did not regard the offences as involving gratuitous cruelty beyond the cruelty involved in the commission of each offence itself.

2. [47]

   His Honour stated that the planning for the offences significantly affected the seriousness of the offences, having regard to the time of the planning, the steps taken to buy equipment for use in planned murders, and that planning for one murder was broadened to become the planning for two murders.

3. [48]

   His Honour found that Mr Kovaleff had not displayed any genuine remorse for his offending conduct.

Ground 1: his Honour erred in the application of a 15% utilitarian discount (as opposed to a 25% discount).

1. [49]

   Rothman J noted that Mr Kovaleff had pleaded guilty at committal and that the Crimes (Sentencing Procedure) Act 1999 (NSW) provides a mandatory scheme which allows a discount of 25% for the utilitarian value of such a plea. His Honour noted that the court has a discretion to not apply the legislative mandatory scheme, 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 only be met by the imposition of a penalty with no allowance for, or a reduction of, the discount. His Honour expressed his satisfaction that those community interests could only be met by the imposition of a penalty with a reduction of the discount otherwise applicable, and specified a discount of 15%, noting that there was still utilitarian value in the plea and the plea had obviated the need for AK to give evidence.

Relevant statutory provisions

1. [50]

   Section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides:

2. [51]

   Section 25F(2) provides:

3. [52]

   Section 25F(3) requires notice by the prosecutor, which was not in issue in these proceedings.

Mr Kovaleff’s submissions

1. [53]

   Counsel for Mr Kovaleff placed emphasis on the mandatory nature of the discount scheme and the underlying public policy. Counsel acknowledged that the offences were serious but relied on Rothman J having found that the murder offence was above the mid-range and not in the “worst category”. Counsel submitted that a distinction had to be made between the murder offence and the wounding offence in terms of seriousness and the application of the discount. Counsel submitted that s 25F(2) is only referable to life sentences.

2. [54]

   That latter submission seems to be contradicted by the terms of s 25F, in that s 25F(9) states that a sentencing court must not allow any discount for a guilty plea if the court determines a sentence of life imprisonment, as distinct from the terms of s 25F(2) as set out above.

3. [55]

   Counsel for Mr Kovaleff accepted that error as identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 must be identified in respect of Ground 1. That is:

The Crown’s submissions

1. [56]

   The Crown submitted that although Rothman J did not accede to the Crown’s submission that s 61(1) of the Act was engaged, such that the imposition of life imprisonment was warranted, that did not foreclose the application of s 25F(2), the rationale of which is to ensure that the sentence is not disproportionate to the crime. The Crown submitted that the finding his Honour made was well open in the exercise of his discretion because of the heinousness of the crime, demonstrated by the extent of planning and premeditation, the callousness demonstrated by Mr Kovaleff to both victims, that he murdered a victim not known to him, without provocation, and he celebrated afterwards by playing music, such that his culpability was so extreme that it required that the discount for his plea of guilty be reduced in order that the penalty could properly achieve retribution, punishment, community protection and deterrence.

Consideration

1. [57]

   Rothman J made the following findings:

2. [58]

   In respect of s 25F(2) his Honour said:

3. [59]

   The meaning of the term “the level of culpability in the commission of the offence is so extreme” in s 25F(2) has not been the subject of any appellate authority, as far as I could find. The Crown referred to this Court’s decision in Milat v R; Klein v R [2014] NSWCCA 29. That decision preceded the commencement of the mandatory scheme of discounts for guilty pleas to indictable offences in Division 1A of Part 3 of the Act, which commenced operation in 2018. In Milat, R A Hulme J, with whom Bathurst CJ and Hall J agreed, referred at [73] to the then applicable guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, in which Spigelman CJ, with whom the four other members of the Court agreed, said:

4. [60]

   R A Hulme J said whether to allow a discount and if so, to what extent, are matters for the discretion of a sentencing judge and such decisions are reviewable by the Court of Criminal Appeal on House v The King principles: [74].

5. [61]

   The statutory scheme within the Act has superseded that decision.

6. [62]

   The term “the level of culpability in the commission of the offence is so extreme” is also used in s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and its meaning has been considered in that section. Section 61(1) states:

7. [63]

   Section 61(1) was most recently considered in Rogerson v R; McNamara v R [2021] NSWCCA 160 (‘Rogerson’). The Court (Bell P, R A Hulme J and Beech-Jones J) endorsed the interpretation of s 61(1) by Bell J in R v Harris [2000] NSWSC 285, which was approved on appeal in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469. Her Honour said “having regard to the language of the provision, it seems to me that the assessment of the prisoner’s culpability required by the section is directed to circumstances surrounding or causally connected to the offence” at [84]. Applying that approach, Bell J considered the offender Mr Harris’s “troubled background” because it may have been relevant to the assessment of his culpability for his crime in the sense of being a causative influence. The Court in Rogerson stated that the construction of s 61(1) by Bell J was supported by the reference in the provision to the “culpability in the commission of the offence” and by its specification of the relevant considerations as “retribution, punishment, community protection and deterrence”, they being only four of the seven purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court stated that circumstances surrounding or causally connected to an offence could also include any mental illness relevant to the commission of the offence.

8. [64]

   The Court noted that in CC v R; R v CC [2021] NSWCCA 71, Adamson J, following Harris, stated that “The focus of the court’s attention in s 61(1) is the offender’s ’level of culpability in the commission of the offence’. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity.”: [81]. The Court endorsed Adamson J’s approach as correct and in accord with the two Harris decisions and the Parliament’s intention in enacting the predecessor to s 61(1). The Court affirmed that the proper approach to s 61(1) is that stated in R v Harris in the Court of Criminal Appeal and the judgment of Bell J. The Court affirmed that a “circumstance surrounding or causally connected to the offence” can include matters such as an offender’s mental state, motive or personal background: [636].

9. [65]

   I would construe the meaning of “culpability in the commission of an offence” in s 25F(2) as it has been construed in s 61(1). It accords with this Court’s consideration of the concepts of the objective seriousness of an offence and the offender’s moral culpability for the offence in DS v R; DM v R [2022] NSWCCA 156 at [94-96].

10. [66]

    Rothman J assessed the objective seriousness of each offence as well above the mid-range. I have noted the factors his Honour took into account in reaching that assessment, including the significant planning, the use of the weapon and the callous attitude to both victims, including not obtaining medical help.

11. [67]

    The wound to AK was a single stab wound to the abdomen which perforated her duodenum with an associated pancreatic contusion. Although Mr Kovaleff had planned to kill AK, he desisted after inflicting that stab wound. He did not obtain medical help, and he bandaged AK’s wound for the purpose of engaging in sexual intercourse with her, although he did not ultimately do so.

12. [68]

    The wounds to LD were a large, complex stab wound in her abdomen, made up of three stab wounds. Part of the wound track exited through her back, causing the wound on her flank. Wound tracks affected most of her organs in her abdomen. There were two more superficial stab wounds near the complex wound, a small stab wound to her upper mid abdominal region, and a stab wound to the left side of her back. There was an incision to her left thigh and defensive lacerations to the fingers of both hands.

13. [69]

    Dr Furst noted that Mr Kovaleff did not appear to gain the satisfaction or thrill he thought he would from killing.

14. [70]

    His Honour took into account Mr Kovaleff’s youth, immaturity (as assessed by Dr Furst) and borderline intelligence. His Honour found that Mr Kovaleff’s fixation with Ted Bundy and the expectation that he would receive a thrill from killing people reflected his immaturity and lack of understanding of the consequences of his actions.

15. [71]

    His Honour did not appear to distinguish in his application of s 25F(2) between the murder offence and the wounding offence. Despite the seriousness of the conduct involved in both offences, the conduct in stabbing AK once, albeit in the circumstances of the planning, violent fantasy and callous behaviour, having regard to his youth, immaturity and borderline intelligence, could not justify a finding that Mr Kovaleff’s level of culpability in the commission of that offence was so extreme that the mandated discount for his plea of guilty should be reduced to 15%.

16. [72]

    In respect of the murder offence, having regard to the planning, the intention to kill LD, the violent fantasy motivating that intention, the wounds inflicted on LD, the callous behaviour in leaving her to die while Mr Kovaleff pursued his own interests, that he stabbed LD in the presence of AK, and taking into account Mr Kovaleff’s youth, immaturity and borderline intelligence, I am not able to conclude that his Honour’s finding that Mr Kovaleff’s level of culpability in the commission of that offence was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met by a reduced discount of 15% for his plea of guilty was not reasonably open to him (Hancock v R [2025] NSWCCA 213) although I would not have made that finding in this case.

17. [73]

    It follows that Mr Kovaleff has not established the error asserted in Ground 1 in respect of the sentence for the murder offence.

Ground 4: the sentence in all the circumstances is manifestly excessive.

1. [74]

   I turn then to consider the ground asserting that the sentence was manifestly excessive. In support of that ground, counsel submitted that His Honour failed to give effect to his findings about Mr Kovaleff’s youth and limited intellect and special circumstances to reduce the non-parole period from the statutory ratio. The latter complaint was that the ratio of the overall non-parole period to the total effective sentence was 72%.

2. [75]

   The applicable principles have often been stated by this Court. For example, in Hancock at [99 – 100]:

3. [76]

   Counsel for Mr Kovaleff relied on a table of sentences from the Public Defenders’ website for offences of murder and submitted that the sentence imposed upon Mr Kovaleff was at the very top of sentences imposed on other young adult offenders for such offences. Counsel submitted that the range of sentences demonstrated that the starting point of the sentence for Mr Kovaleff was too high and failed properly to take into account his age, his limited intelligence, his lack of previous convictions and his pleas of guilty. Counsel also submitted that the extent of accumulation of the sentence for the wounding offence inflated the sentence to be manifestly excessive. The Crown deprecated the reliance by Mr Kovaleff’s counsel on the table of sentencing cases and advanced a different selection of seven “comparative cases”. They had in common that the sentence imposed or the starting sentence before a discount for a plea of guilty was 40 years imprisonment or more. I have considered those cases relied on by both parties, bearing in mind the limitations on the assistance they can provide.

4. [77]

   I bear in mind the maximum penalties and standard non-parole periods prescribed for each offence. The seriousness of the offences, and more so the murder offence, cannot be gainsaid. Other relevant factors were Mr Kovaleff’s assessed intellectual capacity and his youth, immaturity and emotional dysfunction, as assessed by Dr Furst.

5. [78]

   In R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 the Court said at [25], where an offender’s immaturity is a significant contributing factor to an offence the criminality involved is less than it would be in an adult of more mature years. In BP v R [2010] NSWCCA 159 Hodgson JA at [5] observed that emotional maturity develops progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-20s. His Honour said, “As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 youth may be a material factor in sentencing even a 19 year old for a most serious crime”.

6. [79]

   Acknowledging the seriousness of the circumstances of the offending, I have concluded that when regard is had to Mr Kovaleff’s youth, immaturity, and emotional and intellectual dysfunction, the starting sentence of 40 years imprisonment, and the sentence after discount for the murder offence, was too high having regard to those personal characteristics. I do not consider that the degree of accumulation of the sentence for the wounding offence was excessive in the circumstances, but the nomination of a starting sentence and discounted sentence for the murder offence which were both too high resulted in a total effective sentence which was manifestly excessive. In my opinion, the sentence imposed was unreasonable and plainly unjust.

7. [80]

   Error having thus been demonstrated, the court must resentence Mr Kovaleff: Kentwell v The Queen (2014) 252 CLR 601 at [35]; [2014] HCA 37.

Resentence

1. [81]

   In re-sentencing Mr Kovaleff, I take into account the agreed facts, the assessments of objective seriousness of each offence as found by Rothman J, and the factors his Honour took into account in reaching that assessment. I take into account Mr Kovaleff’s assessed intellectual capacity and his youth, immaturity and emotional dysfunction, as assessed by Dr Furst.

2. [82]

   I also take into account that, according to Dr Furst, Mr Kovaleff did not experience the thrill he expected. That is a positive factor for future community protection and Mr Kovaleff’s capacity to rehabilitate himself. Rothman J did not consider Mr Kovaleff had good prospects of rehabilitation. However, the affidavit of his solicitor, Walter Ball, addressing Mr Kovaleff’s time in custody, indicates some positive steps on his path to rehabilitation. He is currently housed in share house accommodation which he said is available to prisoners who are well-behaved. It is said he has not incurred any misconduct charges, has a job working in the kitchen six days a week and has completed three occupational skills courses while in custody.

3. [83]

   In exercising the sentencing discretion afresh I will apply a discount of 25% for each offence to reflect the pleas of guilty in the Local Court, as I am not satisfied, having regard to all the circumstances of the offending and the offender, that the level of culpability in the commission of either 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 a reduced discount. I do so bearing in mind that a discount for a plea of guilty cannot result in a sentence being disproportionate to the offending.

4. [84]

   Rothman J found special circumstances on the basis of Mr Kovaleff’s youth. I have noted the complaint made on behalf of Mr Kovaleff that the reduction of the non-parole period from the statutory ratio was limited, at 72%. Ordinarily with the length of sentence required to be imposed for crimes such as Mr Kovaleff’s, there would be a sufficient period on parole for rehabilitation such that it would be unusual for a finding of special circumstances to reduce the non-parole period from the statutory ratio. However, in this case it would be unfair to Mr Kovaleff to deprive him of that finding and reduction. Therefore I will maintain that reduced ratio of the total non-parole period to the total effective sentence.

5. [85]

   I will impose an aggregate sentence. It will involve the same degree of accumulation of sentences for the two offences as specified by Rothman J, to reflect that although the two offences occurred in the same timeframe and circumstances, there were two offences against two victims. I indicate the following sentences for the individual offences.

6. [86]

   For the offence of murdering LD, I commenced with a starting point of 36 years. Applying the 25% discount I indicate a sentence of 27 years imprisonment, with a non-parole period of 19 years. For the offence of wounding AK I commenced at eight years imprisonment. Applying the 25% discount for the plea of guilty I indicate a sentence of six years imprisonment with a non-parole period of four years, six months imprisonment.

7. [87]

   The aggregate sentence will be 29 years imprisonment with a non-parole period of 21 years, commencing on 19 December 2020. The non-parole period will expire on 18 December 2041.

Orders

1. [88]

   I propose the following orders:

   1. (1)

      Extend the time for filing the notice of appeal.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Allow the appeal.

   4. (4)

      Quash the sentences imposed in the Supreme Court on 30 March 2023. In lieu thereof, sentence Mr Kovaleff to an aggregate sentence of 29 years imprisonment, commencing on 19 December 2020, with a non-parole period of 21 years, which will expire on 18 December 2041.

2. [89]

   MUSTON J: I agree with Sweeney J.