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Supreme Court 8 January 2003

Regina v Cakovski

[2002] NSWSC 1252

Also reported as 141 A Crim R 446
Assault & violenceHomicideTheft & property
SENTENCE MURDER STABBING MULTIPLE WOUNDS 19 YEAR OLD OFFENDER NO ACTUAL INTENTION TO KILL

Citation: Regina v Cakovski [2002] NSWSC 1252
Court: Supreme Court of New South Wales
Date: 8 January 2003
Judge(s): O'Keefe J

Background

A jury convicted Daniel Cakovski of murdering Eugene Petroff at Strathfield on 20 May 2001. Cakovski was 19 years old at the time; the deceased was 53. The killing occurred between 5:00 am and 5:30 am in a public place, in the course of an armed robbery.

The deceased suffered four stab wounds to the chest, along with wounds to the face and hand. Two chest wounds were deep, one penetrating the heart with sufficient force to drive the blade 12 centimetres into the body. Any one of those wounds alone could have proved fatal; the combined effect caused death by blood loss.

At trial, the prisoner's counsel relied on self-defence and, following judicial intervention, provocation was also left to the jury. The jury rejected both defences. The sentencing hearing was delayed due to administrative errors within the Department of Corrective Services and late preparation of a pre-sentence report.

  • What facts could be established to the required standard for the purposes of sentencing, given the jury's verdict?
  • How should the court weigh the objective seriousness of a murder committed during an armed robbery against mitigating factors including the offender's youth and absence of actual intent to kill?
  • What role did general deterrence, remorse, contrition, and rehabilitation play in determining the appropriate sentence?
  • Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the head sentence (the total term of imprisonment).
  • How should the principle of totality apply where concurrent sentences for other offences were also before the court?
  • What credit should be given for time already spent in custody?

Decision

O'Keefe J applied the established principle that facts adverse to the prisoner must be proved beyond reasonable doubt, while facts favourable to the prisoner need only be established on the balance of probabilities. This reflects the approach confirmed by the Victorian Court of Criminal Appeal in Regina v Storey and adopted in New South Wales.

The court found the crime to be objectively serious. It was committed in a public place, in the course of an armed robbery, against a stranger, with a weapon, resulting in multiple stab wounds. Although the jury's verdict did not require a finding of actual intent to kill, the deliberate nature of the stabbing and the force involved were significant aggravating features. General deterrence carried particular weight in this context.

Mitigating factors included the prisoner's youth (19 at the time of the offence), his absence of an actual intention to kill, expressions of remorse and contrition, and prospects for rehabilitation. The court treated these as genuine but did not allow them to substantially reduce what the objective gravity of the offence required.

The court found special circumstances justifying an adjustment to the standard non-parole to head sentence ratio. Credit of one year and 82 days was applied to both the head sentence and the non-parole period for time already spent in custody. A minor overlap with a separate two-month sentence imposed in Burwood Local Court in November 2002 was noted but left to benefit the prisoner, the court treating the difference as negligible in the context of the overall sentence.

Orders Made

  • The prisoner was sentenced to imprisonment for a term commencing 14 December 2003 and ending 23 December 2020.
  • A non-parole period was set commencing 14 December 2003 and ending 23 September 2014, on which date the prisoner would become eligible for parole.

Key Takeaways

  • On sentencing for murder, facts adverse to the offender must be proved beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities, consistent with Regina v Storey and accepted NSW authority.
  • A murder committed in the course of an armed robbery, in a public place, against a stranger, using a knife to inflict multiple wounds, carries substantial objective seriousness that weighs heavily in favour of a significant sentence, even where actual intent to kill is not established.
  • Youth, absence of specific intent to kill, genuine remorse, and rehabilitation prospects are recognised mitigating factors in murder sentencing, but their effect is moderated by the gravity of the offence.
  • Special circumstances may justify departing from the standard ratio between the non-parole period and the head sentence, allowing a longer period on parole supervision relative to the total term.
  • Where a minor sentencing overlap with concurrent sentences from a separate court is discovered late in proceedings, the Supreme Court may treat a small resulting credit in the prisoner's favour as de minimis rather than adjust the overall calculation downward.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), (2); 21A(1), (2); 24A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Listening Devices Act 1984 (NSW)
- Children's Criminal Proceedings Act 1987 (NSW), ss 15(3), 33

Cases
- Regina v Storey (1997) 89 A Crim R 519
- Regina v Isaacs (1997) 90 A Crim R 587
- Savvas v The Queen (1995) 183 CLR 1
- Mill v The Queen (1986) 166 CLR 59
- Todd (1982) 2 NSWLR 517
- Hearne (2001) 124 A Crim R 451
- Pham and Ly (1991) 55 A Crim R 128
- Regina v Bell (NSWCCA, 29 September 1997, unreported)
- Regina v D.A.R (NSWCCA, 8 November 1995, unreported)
- Regina v Watt (NSWCCA, 2 April 1997, unreported)
- Various other NSWCCA and NSWSC sentencing authorities on youth and murder