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Supreme Court 21 February 2022

R v Burns (No 2)

[2022] NSWSC 140

Assault & violenceHomicideDrugsTheft & property
CRIME SENTENCING APPROPRIATE DISCOUNT FOR PLEA IMPACT ON THE FAMILY OF THE VICTIM SINGLE LETHAL STAB WOUND IMPACT ON MORAL CULPABILITY

Citation: R v Burns (No 2) [2022] NSWSC 140
Court: Supreme Court of New South Wales
Date: 21 February 2022
Judge: McCallum JA

Background

The offender pleaded guilty to the murder of Erol Tokcan and to armed assault with intent to rob causing wounding, both arising from a single incident on 9 March 2018. The offender and two companions returned to the victim's home after the victim had refused to sell them cannabis, intending to rob him. During the robbery, the offender stabbed the victim once with a pocket folding knife, causing fatal injuries.

The murder charge was one of constructive murder, meaning the death occurred in the course of a serious violent offence rather than as a result of a deliberate intention to kill. The facts were contested and had been determined in an earlier judgment, R v Burns [2021] NSWSC 1536, which formed the factual basis for sentencing. The offender had consumed a large quantity of alcohol and cannabis on the night of the offending but retained some capacity for rational thought immediately beforehand.

Before the offences, the offender had no relevant prior criminal history and a strong work record. Victim impact statements were provided by the deceased's mother and three sisters, who described the devastating and ongoing impact of his death on the family, including on the victim's four-year-old daughter and a brother with dementia for whom the victim had been a vital connection to the outside world.

  • What sentence was appropriate for murder (constructive) and armed assault with intent to rob causing wounding arising from the same incident?
  • What discount should apply to the plea of guilty entered on contested facts?
  • How should the offender's profound childhood deprivation, adolescent trauma, and prior good character affect moral culpability and sentence?
  • How should the harsher conditions of custody caused by the COVID-19 pandemic be factored into the sentencing exercise?
  • Whether and to what extent the individual sentences should depart from the standard non-parole periods, and whether departure from the statutory non-parole to balance-of-term ratio was warranted.

Decision

McCallum JA identified each offence as falling below the mid-range of objective seriousness. The murder was constructive in nature, arising from a robbery rather than from a premeditated intention to kill, and involved a single stab wound. The court found that, while the offender had some rational capacity immediately before the attack, the combination of significant intoxication and the spontaneous escalation of events reduced the objective gravity of the offending.

The court gave substantial weight to the offender's subjective case. Applying principles drawn from Bugmy v The Queen and R v Fernando, the court recognised that profound deprivation in the offender's early childhood and significant trauma in his late adolescence reduced his moral culpability, even though those circumstances did not diminish the gravity of the harm caused to the victim and his family. The offender's prior good character, strong work history, and absence of relevant criminal antecedents were also mitigating factors.

The court applied a discount for the guilty plea, though the plea had been entered on contested facts following the earlier hearing, which affected the extent of that discount. The court followed the approach endorsed in R v Brooks (No 5), treating the standard non-parole periods as legislative guideposts to be weighed alongside all relevant factors rather than as determinative benchmarks. The court also found that the conditions of the offender's custody during the COVID-19 pandemic had made imprisonment harsher than usual, and that this warranted some further moderation of the sentence, including a departure from the statutory ratio of non-parole period to balance of term.

An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, reflecting the substantial overlap between the two offences and the fact that they involved the same victim in the same incident.

Orders Made

  • Convicted of the murder of Erol Tokcan and of assaulting Erol Tokcan with intent to rob causing wounding.
  • Aggregate sentence of 21 years' imprisonment imposed.
  • Non-parole period of 14 years, commencing 12 March 2020 and expiring 11 March 2034.
  • Balance of term of 7 years, expiring 11 March 2041.
  • First eligible date for release to parole: 11 March 2034.
  • The offender was advised that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the murder offence and may apply at the end of the sentence.

Key Takeaways

  • Constructive murder arising from a violent robbery, where death results from a single wound without a prior intention to kill, may be treated as falling below the mid-range of objective seriousness, depending on the circumstances.
  • Under the approach confirmed in R v Brooks (No 5), standard non-parole periods function as legislative guideposts rather than as determinative benchmarks, and the sentencing court must still weigh all relevant factors in reaching an instinctive synthesis of the appropriate sentence.
  • Profound childhood deprivation and adolescent trauma, assessed in accordance with Bugmy v The Queen, can reduce an offender's moral culpability even in cases involving the most serious of offences, though they do not diminish the harm inflicted on victims.
  • A guilty plea entered on contested facts attracts a reduced discount compared with an unconditional plea, reflecting the limited utilitarian benefit to the justice system where facts must still be determined at a hearing.
  • Harsher custodial conditions resulting from the COVID-19 pandemic were treated as a factor warranting moderation of the sentence, including departure from the statutory non-parole to balance-of-term ratio, consistent with the approach taken in R v Archer [2021] NSWSC 1485 and related authorities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(b), 25F(4), 30E(3), 53A, 54A
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- R v Burns [2021] NSWSC 1536 (earlier contested facts judgment in the same proceedings)
- R v Brooks (No 5) [2017] NSWSC 824
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Fernando (1992) 76 A Crim R 58
- R v Archer [2021] NSWSC 1485
- Doudar v R [2021] NSWCCA 37
- Toller v R [2021] NSWCCA 204
- McKinnon v R [2020] NSWCCA 106
- Scott v R [2020] NSWCCA 81
- R v Huang [2000] NSWCCA 238