Australia, July 25 -- New South Wales Land and Environment Court issued text of the following judgement on June 25:

1. DAVIES J: I agree with Hamill J.

2. HAMILL J: Simons Szymon Stobinski ("the applicant") seeks leave to appeal against a sentence imposed on him by his Honour Judge King SC in the District Court on 29 August 2024. The applicant pleaded guilty in the Local Court to two offences namely (i) recklessly inflicting grievous bodily harm, an offence carrying a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years, and (ii) common assault, an offence with a maximum penalty of 2 years imprisonment. A further offence of common assault was taken into account in sentencing for the first of those offences. The sentencing Judge imposed an aggregate sentence of 3 years and 4 months imprisonment with a non-parole period of 2 years. The Judge applied a sentencing discount of 25% to the indicative sentences in recognition of the applicant's early plea of guilty. He nominated the indicative sentences as 3 years and 4 months (with a stated starting point of 4 1/2 years) and 3 months respectively. It will be seen that the sentences were, notionally at least, entirely concurrent.

3. The applicant notified and pressed a single ground of appeal, namely that:

"The sentenc[ing] judge erred in his consideration and evaluation of the applicant's mental health."

Evidence relevant to sentence tendered by the Prosecutor

Facts of the offences

4. The facts were agreed for the most part, and a statement of agreed facts was tendered on sentence as part of the prosecution bundle (Ex 1). CCTV footage of the incident giving rise to the two counts was also in evidence (Ex 2). Judge King set out the facts in his judgment on sentence and there was no suggestion his Honour erred in doing so. What follows is a brief summary of the facts derived from the agreed facts, the sentencing judgment, the victim impact statement and a review of the CCTV footage and video captured by mobile telephone.

5. On 25 April 2023, the applicant was sitting on Progress Avenue in Eastwood drinking from a glass bottle while talking and gesturing. The CCTV footage shows that he was seated on an elevated part of the footpath that could be accessed by a brick or concrete staircase comprising about six to eight steps. The victim, Steven Lok, was on the other side of the road but heard the applicant say words to the effect of "I will kill the lot of you, you Chinese dog. I will send you all back to China". The applicant was pointing vigorously before approaching Scott Yee and yelling words to the effect of "What the fuck are you looking at?". Mr Yee replied, "Go home, you're drunk".

6. Mr Lok started to record the incident on his mobile telephone and walked across the road toward the applicant while doing so. The applicant said "Put that away, I'm going to kill you. You're not allowed to record me" but Mr Lok continued to film him as he approached. The applicant leaned over the railing and slapped the telephone out of Mr Lok's hand. Mr Lok moved to his right and walked up the stairs towards the applicant. The applicant rushed to the top of the stairs, clenched his fists, and thrust his arms into Mr Lok. The victim fell down the stairs and landed heavily on the pavement below. His hip was dislocated, and he suffered other injuries. He sat on the kerb.

7. Mr Lok used his wife's 'phone to call emergency services. The applicant sat down next to him and said, "I can kill the lot of you like dogs, and the pigs won't even care because you're not even fuckin' Aussie". He then slapped the second telephone out of Mr Lok's hand, and it fell down a drain. The applicant said, "Get that phone out of your hands, brother, stop lying, brother". Mr Lok pushed the applicant away and the applicant kicked him in the stomach.

8. Mr Stobinski was restrained by another member of the public and Mr Lok was taken to Ryde Hospital. His injuries included abrasions to his arms, swelling of the second and third fingers on his left hand, a displaced fracture of his right hip and a dislocated femoral head (right hip). He underwent surgery on 27 April 2023 for the hip fracture which required metal plates and screws to be permanently inserted. On 16 May 2023, Mr Lok felt a stabbing pain in his right ankle and presented to the Royal North Shore Hospital where scans revealed he had a "minimally displaced fracture of the anterior calcaneal bone in his right ankle." Surgery was not required but he was directed to wear a moon boot.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19785d783ec8ae3e7b83ef1d)

Disclaimer: Curated by HT Syndication.