By Paul Gregoire and Ugur Nedim
On 25 April 2023, Simons Stobinski was seated on an elevated part of the footpath on Progressive Avenue in the Sydney northwestern suburb of Eastwood, and he was drinking from a glass bottle, when Steven Lok, standing across the road, heard Stobinski say, “I will kill the lot of you, you Chinese dog. I will send you all back to China”.
Stobinski was seen to be vigorously pointing at then approaching Scott Yee and yelling, “What are you looking at?” Yee replied, “Go home. You’re drunk.” And by this stage, Lok was walking towards the man causing the scene, and he was also capturing the incident on his phone camera. “Put that away, I’m going to kill you,” Stobinski aggressively told Lok. “You’re not allowed to record me.”
CCTV footage shows Stobinski then lean over the railing from the elevated section and slap the phone out of Lok’s hand. Lok then started walking up the six-to-eight-step staircase to the elevated part, when his assailant ran towards him, clenched his fists, thrust his arms into Lok and pushed the man, who landed heavily backwards onto the pavement, dislocating a hip and suffering other injures.
Lok then sat on the curb to call emergency services on his wife’s phone. But Stobinski sat down beside him and said, “I can kill the lot of you like dogs, and the pigs won’t even care because you’re not even fucking Aussie.” The aggressor then knocked the second phone out of Lok’s hand, and it fell down a drain. Lok pushed his attacker away, who responded by kicking him in the stomach.
The offender was restrained by a passerby and was arrested later that same day in West Ryde. Body-worn video arrest footage reveals the suspect remarking to an officer, “He attacked me, brother.” Now in gaol, Stobinski also told officers that he’d been outnumbered as he was the only white man, while Lok ended up in hospital with multiple injuries and had to undergo surgery.
Revitalising an “aged” record
Stobinski pleaded guilty to two charges in the NSW Local Court. The first count was recklessly causing grievous bodily harm (GBH), contrary to section 35(2) of the Crimes Act 1900 (NSW). This is a criminal offence that carries a maximum penalty of 10 years imprisonment, along with a standard non-parole period (SNPP) of 4 years.
SNPPs act as guideposts for sentencing judges to take into account when considering the minimum time an offender must serve in prison before being eligible for release on parole.
The second offence Stobinski conceded he’d committed was one count of common assault, contrary to section 61 of the Crimes Act. The maximum penalty for this offence is up to 2 years prison time and/or a fine of $5,500.
A further section 61 assault offence was taken into account on sentencing on a Form 1. Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that charges laid against an accused, but of which they have not been convicted of, can be considered in sentencing for a principal offence, if the defendant requests this occurs. This is known as a charge being taken on a Form 1.
Stobinski had what the appeals court later described as a “somewhat aged record of violent offending”. The accused was heard to have a number of late 1990s and early 20th century assault charges against his name, along with a 2014 common assault conviction, and a “variety of drug, dishonesty and nuisance type” convictions were also detailed.
A sentencing assessment report found Stobinski had admitted he was intoxicated at the time of the assault.
Submissions showed he’d since been undergoing counselling for his problematic substance use, and he puts this down, along with his brain injury and posttraumatic stress disorder, as all contributing to his offending, which was supported by assessment reports before the court. The man’s low cognitive abilities were also discussed during the NSW District Court (NSWDC) sentencing hearing.
On sentencing Stobinski, NSWDC Judge Michael King noted that the assessment made by forensic psychologist Sam Borenstein had found that the offender suffered from PTSD, major depressive disorder, anxiety and a number of other disorders, however, his Honour also suggested that “there was no indication of serious psychiatric disorder”.
Judge King sentenced Stobinski on 29 August 2024 to 3 years and 4 months prison time, with non-parole set at 2 years. This sentence reflected a 25 percent sentencing discount that had been applied to the original sentence, which was granted due to the utilitarian value that Stobinski’s early guilty plea resulted in.
Referred to yet overlooked
Stobinski then appealed his prison sentence to the NSW Court of Criminal Appeal (NSWCCA) on 30 May 2025. The inmate did so based on one ground of appeal, which involved the sentencing judge having made an error in his lack of “consideration” and “evaluation” of Stobinski’s mental health issues, while he was in the act of sentencing the offender before him.
On appeal, the court heard that the sentencing judge had referred to the accused’s mental health issues and how they might affect his sentence. The judicial officer had accepted that the man was suffering conditions and that they did affect his decision-making abilities. His Honour too referred to the fact that since the incident, Stobinski had been taking active steps to address his problems.
Judge King also found ‘special circumstances’. In that regard, section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a parole period must not exceed a third of the overall time an offender has been sentenced to, unless special circumstances are found. Such circumstances must indicate that the person being sentenced would benefit from a longer period in the community under supervision.
NSWCCA Justice Peter Hamill noted in his recently published final findings that it is well-established in NSW case law that a convicted person’s mental health issues or illnesses can be found to reduce culpability on sentencing, and can eliminate the need for either deterrence, and that a condition may make prison more onerous as well as lead to increased sentences in dangerous cases.
The sentencing judge had further established that Stobinski suffered many conditions and accepted they’d contributed to his “bizarre offending”, yet this was not raised on sentencing. The prosecution too mentioned the finding of special circumstances as proof that the judge had considered Stobinski’s cognitive abilities on sentencing and that this was effectively reducing his time in gaol.
Justice Hamill outlined that during the sentencing hearing, Stobinski’s conditions and their potential impact had been questioned, so one would have expected Judge King to have raised his opposition to such a prospect at that point, and further reasons were also given for special circumstances being found in respect Stobinski, which included rehabilitation but not his relevant conditions.
“The failure to allude to the relevant legal principles or to explain why they did not apply in circumstances where the judge found, on uncontested evidence, that the applicant suffered from relevant mental health conditions, constituted a material error in the sentencing judgment,” his Honour made certain. So, the ground was made out and the appeal was allowed.
A more appropriate time inside
The question then became whether Stobinski deserved a lesser sentence. Justice Hamill found that his “brain injury and psychiatric condition” modestly reduced his moral culpability, as did his applying himself to rehabilitation. However, Stobinski’s record tended against leniency, as did Lok’s severe injuries.
General deterrence was found to be of lesser importance on sentencing due to Stobinski’s reduced mental and cognitive abilities, which, therefore, made him a less suitable candidate to send messages of deterrence.
On 25 June 2025, Justice Hamill ordered the sentence imposed upon Stobinski in August 2024 be quashed, and a new sentence of 2 years and 6 months was handed down, which included a non-parole period of 1 year and 6 months.
This sentence reflected a 25 percent discount due to the value of the early guilty plea, while special circumstances were found to apply for the same reasons that the sentencing judge had originally cited, and NSWCCA Justices David Davies and Sarah McNaughton agreed with their colleague’s findings.
