Citation: R v Yavuz (No. 6) [2019] NSWSC 95
Court: Supreme Court of New South Wales
Date: 15 February 2019
Judge(s): Davies J
Background
The offender was sitting in his partner's parked car in Greenacre when the deceased approached and, without apparent provocation, punched him repeatedly through the car window and continued assaulting him outside the vehicle. The offender's face was left bloodied. He walked back to his nearby home in Roberts Road.
Rather than waiting for police, the offender retrieved a kitchen knife, returned to Wangee Road, and stood outside the deceased's mother's house. He called out to the deceased to come outside and apologise. A confrontation followed in which the offender stabbed the deceased once in the chest. The deceased bled to death very quickly despite rapid emergency assistance.
The offender was charged with murder. He entered a plea of guilty to manslaughter, which the Crown did not accept. A jury convicted him of murder on 26 November 2018, and the matter came before Davies J for sentencing.
Legal Issues
- Whether the offender intended to kill or to inflict grievous bodily harm on the deceased at the time of the stabbing
- What facts were consistent with the jury's verdict of murder, particularly regarding the sequence of events between the initial assault and the stabbing
- Whether the provocation and the offender's heightened psychological state reduced his moral culpability
- Whether the presence of a child in the vicinity, the use of a weapon, and the location of the offence (the victim's bail residence) constituted aggravating factors
- Where the offence sat in the range of objective seriousness
- Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term
Decision
Davies J found that the offender intended to inflict grievous bodily harm, if not to kill. The judge accepted eyewitness evidence from a neighbour (corroborated by an almost-contemporaneous triple-0 call) that the offender, upon returning with the knife, told the deceased he was going to kill him. The court found beyond reasonable doubt that those words were spoken, but could not be satisfied to the same standard that the offender made a similar threat as he fled the scene of the initial fight.
On the contested factual question of timing, the court accepted the account given by the offender's partner in her police statement on the night of the stabbing, over her later trial evidence. The earlier account indicated less time had elapsed between the assault and the stabbing, and was treated as more reliable. That finding supported the submission that the offender may still have been in a heightened state of arousal and possibly concussed, which the court accepted as a factor reducing moral culpability to some degree.
The court placed the offence in the low end of the mid-range of objective seriousness. Aggravating factors included the use of a knife and the fact that the offence was committed at the victim's home, where he was required to reside as a condition of bail. The Crown also argued that the presence of a child was an aggravating factor, but the court rejected this: the child had not witnessed the stabbing and was unaware of what had occurred. The offender showed no remorse, which weighed against him. His prospects of rehabilitation were assessed as good and his risk of reoffending as low.
The court found no special circumstances warranting a departure from the standard statutory ratio between the non-parole period and the balance of term. A related assault charge against the deceased's mother was proved beyond reasonable doubt, but given the murder sentence, no additional penalty was imposed and the charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- The offender was convicted of the murder of the deceased.
- Sentenced to a non-parole period of 15 years and 9 months, commencing 13 November 2015 and expiring 12 August 2031.
- Balance of term of 5 years and 3 months, expiring 12 November 2036.
- The assault charge (relating to the deceased's mother) was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 with no penalty imposed.
- The offender was warned of the potential for a future application under the Crimes (High Risk Offenders) Act 2006 (NSW).
Key Takeaways
- Where a sentencing court must find facts consistent with a jury's verdict, facts found against the offender must be established beyond reasonable doubt, while facts found in favour of the offender need only be established on the balance of probabilities.
- Prior unprovoked assault by the deceased, combined with a credible psychological assessment of the offender's heightened arousal, can reduce moral culpability in a murder sentencing even where the offender retrieved a weapon and returned to confront the victim.
- The Supreme Court rejected the aggravating factor of a child's presence at the scene where the evidence established the child neither saw the stabbing nor appreciated that it had occurred.
- An early police statement made close in time to the relevant events was treated as inherently more reliable than later witness evidence given at trial, particularly where the later account raised internal inconsistencies.
- First-time custody, on its own, does not constitute special circumstances sufficient to justify departing from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A(3)(i), 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- Alesbhi v R; Esbhi v R [2018] NSWCCA 30
- Beldon v R [2012] NSWCCA 194
- Carr v R [2009] NSWSC 995
- JB v R [2012] NSWCCA 12
- Jonson v R [2016] NSWCCA 286
- R v Do (No. 4) [2015] NSWSC 512
- R v Ronald Shiels [2011] NSWSC 1177
- R v Towney (No. 2) [2016] NSWSC 97