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Supreme Court 8 January 2003

Regina v Cakovski

[2003] NSWSC 1

Assault & violenceHomicideTheft & property
SENTENCE MURDER STABBING MULTIPLE WOUNDS 19 YEAR OLD OFFENDER NO ACTUAL INTENTION TO KILL

Citation: Regina v Cakovski [2003] NSWSC 1
Court: Supreme Court of New South Wales
Date: 8 January 2003
Judge(s): O'Keefe J

Background

A jury convicted a 19-year-old man (the prisoner) of the murder of a 53-year-old man (the deceased) at Strathfield in the early hours of 20 May 2001. The killing occurred in the course of an armed robbery in a public place. The deceased and the prisoner were strangers to one another.

The prisoner inflicted four stab wounds to the deceased's chest, two of which were deep, along with additional wounds to the face and hand. One chest wound penetrated the heart and would, on its own, have been likely to cause death from blood loss. The combined effect of the chest wounds was found to be the actual cause of death.

At trial, the prisoner did not dispute that he had stabbed and killed the deceased, nor that his acts were deliberate. The defence raised self-defence and, following argument, provocation was also left to the jury. The jury rejected both defences and returned a verdict of guilty.

  • What sentence was appropriate for a 19-year-old offender convicted of murder in the course of an armed robbery, where there was no actual intention to kill?
  • How should the court weigh the objective seriousness of the offence against mitigating factors including the offender's youth, remorse, contrition, and prospects for rehabilitation?
  • What standard of proof applied to disputed factual findings at the sentencing stage?
  • How should the principles of totality and special circumstances affect the structure of the sentence, including the non-parole period?
  • How should the court treat prior periods of custody, including time served under a separate sentence imposed by a Local Court, when calculating credit?

Decision

O'Keefe J applied the established principle that facts adverse to the prisoner at sentence must be proved beyond reasonable doubt, while facts favourable to the prisoner need only be established on the balance of probabilities. His Honour drew on the Victorian Court of Criminal Appeal's reasoning in Regina v Storey and confirmed this approach accords with New South Wales law.

The court assessed the objective seriousness of the offence as high. The killing took place in a public place, during an armed robbery, with the victim being a complete stranger. Multiple stab wounds were inflicted, including one of sufficient force to penetrate beyond the blade's length. Although the jury's verdict did not require a finding of actual intention to kill, the deliberate nature of the acts and the gravity of the harm were prominent in the sentencing analysis.

General deterrence carried significant weight given the circumstances of the offence. At the same time, O'Keefe J took into account the prisoner's youth, his remorse and contrition, and his prospects for rehabilitation. The court found special circumstances existed that justified adjusting the ratio between the non-parole period and the balance of the sentence, reflecting the prisoner's need for extended supervision and support upon release.

On the question of custody credit, the court was informed late in proceedings that the prisoner had served 34 days in custody under separate Local Court sentences. O'Keefe J declined to reduce the credit of one year and 82 days already calculated, treating any resulting benefit to the prisoner as minimal (de minimis) in the context of the overall sentence.

Orders Made

  • The prisoner was sentenced to imprisonment for murder commencing on 14 December 2003 and ending on 23 September 2020.
  • A non-parole period was set commencing on 14 December 2003 and ending on 23 September 2014, at which date the prisoner became eligible for parole.
  • The murder sentence was ordered to be served concurrently with a separate sentence for a Condell Park offence to the extent of twelve months.

Key Takeaways

  • Disputed facts adverse to an offender at sentencing must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities. This principle was confirmed as part of New South Wales law.
  • Murder committed in the course of an armed robbery against a stranger in a public place, involving multiple deliberate stab wounds, carries a high objective seriousness even where there was no actual intention to kill.
  • Youth, remorse, contrition, and rehabilitation prospects are legitimate mitigating considerations in murder sentencing, but they operate alongside, not in substitution for, the requirements of general deterrence and retribution.
  • Special circumstances can justify a departure from the standard ratio between the non-parole period and the head sentence, particularly where an offender's age and background indicate a need for extended post-release supervision.
  • Where a minor administrative overlap in custody calculations would produce a marginal benefit to the prisoner, a sentencing court may decline to adjust the credit previously calculated where the discrepancy is de minimis.

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), s 3
- 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
- Various unreported decisions of the NSW Court of Criminal Appeal and Supreme Court