Citation: Yavuz v R [2020] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 11 September 2020
Judge(s): Leeming JA (principal judgment); Johnson J and Rothman J (agreeing)
Background
The appellant was convicted of murder following a jury trial in the Supreme Court of New South Wales in 2018. The offence occurred on 13 November 2015, when the appellant armed himself with a kitchen knife from his home, returned to a neighbouring property, and stabbed the deceased in the chest while the deceased was sitting on his front steps. Two prior juries had been discharged in 2017 before a third jury returned the guilty verdict.
The deceased died at the scene despite the attendance of five paramedics and a doctor who performed emergency procedures, including opening the chest cavity. There was no dispute that the appellant inflicted the stab wound, that the deceased died shortly afterwards, or that the appellant had intended to cause grievous bodily harm. Self-defence had also been excluded.
The appellant was sentenced to 21 years' imprisonment with a non-parole period of 15 years and 9 months, backdated to the date of the offence. He sought leave to appeal against both the conviction and the sentence.
Legal Issues
- Whether the verdict of guilty was unreasonable or unsupported by the evidence, specifically whether the Crown had established beyond reasonable doubt that the stab wound inflicted by the appellant caused the deceased's death.
- Whether the sentencing judge erred in assessing the objective criminality of the offence.
- Whether the sentencing judge properly took into account the significant delay between the offence and sentencing.
- Whether the sentence of 21 years with a non-parole period of 15 years and 9 months was manifestly excessive.
Decision
Conviction appeal: causation
The central issue on appeal was causation. The appellant argued that the evidence supported only a single, non-penetrating stab wound below the left clavicle, which did not cause the death. The Crown's case was that there were at least two wounds: the sub-clavicle wound and a separate, "atypical" wound to the left lateral chest that caused death. Two eyewitnesses gave evidence of observing a single stab, but one conceded that his view was briefly obstructed by shrubs immediately after the stabbing. The court examined the evidence of the two witnesses, the attending paramedics and doctor, and two medical experts called by the Crown.
Applying the principles in M v The Queen (1994) 181 CLR 487 and Pell v The Queen [2020] HCA 12, the Court of Criminal Appeal assessed whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of causation. Leeming JA concluded that the jury was entitled to accept the Crown's account. The medical evidence, including findings at autopsy and the clinical observations of the paramedics, supported the existence of the fatal lateral wound. The brief gap in one witness's line of sight was sufficient to allow for a second stab unobserved. The verdict was not unreasonable and was supported by the evidence.
Sentence appeal
The court rejected all proposed grounds of appeal against sentence. The sentencing judge's assessment of objective criminality was consistent with the factual findings, including the finding that the appellant had threatened to kill the deceased before the attack. The court found no error in the treatment of delay between the offence and sentencing. On manifest excess, the appellant's table of six comparable cases was examined but found to be readily distinguishable. Three of those cases involved sentencing discounts for guilty pleas or assistance to authorities, and when those discounts were removed the undiscounted terms broadly aligned with the sentence imposed on the appellant. The remaining cases were distinguishable by reason of the offender's youth, mental health, or a finding that the offence fell below the mid-range of objective seriousness. Leave to appeal against sentence was refused.
Orders Made
- Leave to appeal against conviction granted, but the appeal against conviction dismissed.
- Leave to appeal against sentence refused.
Key Takeaways
- A conviction for murder will not be set aside as unreasonable where the jury was entitled, on the whole of the evidence including expert medical evidence and eyewitness accounts, to be satisfied beyond reasonable doubt on the issue of causation, even where individual witnesses gave evidence of observing only a single stab.
- Where an eyewitness concedes a brief break in their line of sight, that concession can support a finding that a second act went unobserved, leaving causation open to the jury as a matter of reasonable inference.
- In assessing whether a murder sentence is manifestly excessive, comparator cases that include discounts for guilty pleas or assistance to authorities must be adjusted to their undiscounted equivalents before meaningful comparison is made.
- The Court of Criminal Appeal confirmed that a non-parole period of 15 years and 9 months in a 21-year murder sentence does not of itself demonstrate manifest excess, particularly where no special circumstances were found and the supervision period upon release would already exceed five years.
- No error was established in the sentencing judge's treatment of delay between the offence date and sentencing, nor in the assessment of the offence's objective seriousness.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen [2020] HCA 12; 94 ALJR 394
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 8
- MB v R [2013] NSWCCA 254
- R v Yavuz (No 1) [2017] NSWSC 1645
- R v Yavuz (No 2) [2017] NSWSC 1705
- R v Yavuz (No 5) [2018] NSWSC 1796
- R v Yavuz (No 6) [2019] NSWSC 95
- Carr v R [2009] NSWSC 995
- R v Robert Martin Hicks [2013] NSWSC 1324
- R v Brooks (No 5) [2017] NSWSC 824
- R v Ronald Shiels [2011] NSWSC 1177
- R v Do (No 4) [2015] NSWSC 512