Aytugrul v R

[2015] NSWCCA 139

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Aytugrul v R [2015] NSWCCA 139

Hearing dates:

8 April 2015

Decision date:

12 June 2015

Before:

Beazley P at [1]; Simpson J at [2]; Adamson J at [40]

Decision:

(1)  The time in which to file an application for leave to appeal extended to 29 July 2013;

(2)  Leave to appeal granted;

(3)  Appeal allowed, sentence imposed on 16 April 2009 set aside;

(4)  The applicant is sentenced to imprisonment made up of a non-parole period of 20 years and 3 months commencing on 5 June 2007 and expiring on 4 September 2027, with a balance of term of 6 years and 9 months, expiring on 4 June 2034.

Catchwords:

APPEAL - sentencing - murder - “Muldrock error” - ground upheld - applicant resentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 44(2)

Cases Cited:

Aytugrul v R [2010] NSWCCA 272; 205 A Crim R 157
Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Davis [2015] NSWCCA 90
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category:

Principal judgment

Parties:

Yusuf Aytugrul (Applicant)
Regina (Respondent)

Representation:

Counsel:
M P King (Applicant)
J A Girdham SC (Respondent)

Solicitors:
S E O’Connor - Legal Aid of NSW (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s):

2008/5115

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

R v Yusuf Aytugrul [2009] NSWSC 275

Date of Decision:

16 April 2009

Before:

R A Hulme J

File Number(s):

2008/5115

Judgment

1. BEAZLEY P: I agree with Simpson J.

2. SIMPSON J: In 2008 the applicant was arraigned in the Supreme Court on an indictment that charged him with the murder, on 26 November 2005, of Sevda Bayrak. On 9 December 2008 the jury returned a verdict of guilty. The maximum sentence applicable to a conviction for murder is imprisonment for life. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), a standard non-parole period of imprisonment for 20 years is prescribed. On 16 April 2009 R A Hulme J sentenced the applicant to imprisonment for 28 years, commencing on 5 June 2007, with a non-parole period of 21 years.

3. On 21 December 2009 the applicant appealed to this Court against the conviction. He did not then seek leave to appeal against sentence. On 3 December 2010 this Court (by majority) dismissed the appeal against conviction: Aytugrul v R [2010] NSWCCA 272; 205 A Crim R 157. The applicant was granted special leave to appeal to the High Court. On 18 April 2012 that appeal was dismissed: Aytugrul v The Queen [2012] HCA 15; 247 CLR 170.

4. The applicant now seeks leave to appeal against the sentence imposed, claiming that it was affected by error of the kind exposed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - essentially, that primary or determinate weight had erroneously been given to the standard non-parole period.

5. By reason of the time that has elapsed since sentence was imposed, the applicant needs an extension of time in which to seek leave to appeal. Although the Crown initially opposed the grant of an extension of time, at the commencement of the hearing it raised no objection, and, indeed, conceded that leave to appeal ought to be granted.

6. In my opinion, both concessions are properly made, and reflect (if somewhat belatedly) an appropriate degree of cooperation on the part of the Crown, and recognition of the realities of sentence appeals post Muldrock.

The relevant facts

7. A full account of the relevant circumstances of the offence is to be found in the judgments of this Court in Aytugrul v R (cited above). For the purposes of this application they may be stated briefly.

8. Between 2002 and 2003 the applicant was in a sexual relationship with Ms Bayrak. Ms Bayrak terminated the relationship in July 2003. She travelled to Turkey for a time, with her daughter, and then returned to Australia; she formed a relationship with another man. In about February 2005 the applicant encountered Ms Bayrak by chance in the street in Auburn. It was the Crown case that the applicant was obsessed with Ms Bayrak. He published, in a Turkish language newspaper, a poem entitled “I Can Not Give Up”. In the poem he declared that:

“My heart burning for you like mad …”

and repeated that he could not give her up.

9. By this time Ms Bayrak was living at an address which was not the one at which she had lived at the time of her relationship with the applicant. She did not give the applicant her new address. The applicant persuaded a friend who was employed at a Centrelink office, in breach of his employment obligations and the law, to obtain and disclose her new address. Between July and October Ms Bayrak lived in Merrylands. On several occasions, her car was vandalised, in different ways. (It was never established with any degree of certainty that the applicant was responsible for the vandalism.) In order to avoid these occurrences, Ms Bayrak moved house again. Again the applicant illegally obtained her address. There was evidence that the applicant continued to contact Ms Bayrak, by text message and by telephone. On two occasions the applicant called Centrelink to allege that Ms Bayrak was fraudulently claiming benefits to which she was not entitled.

10. On 27 November 2005 Ms Bayrak’s body was found in her apartment. She had suffered multiple stab wounds, primarily to her abdomen and chest; her lung had been penetrated.

11. The evidence in the trial against the applicant was circumstantial and included DNA evidence. As mentioned above, the jury convicted him.

12. Ms Bayrak was 33 years of age at the time of her death. Her daughter was then aged eight.

The applicant’s personal circumstances

13. Evidence of the applicant’s personal circumstances was put before the sentencing judge in the form of a psychiatric report. From that the following emerged. The applicant was born in 1965, in Turkey, where he completed his education. He came to Australia at the age of 21, and had various forms of employment. He was married between 1994 and 1998, and has one son, about the same age as Ms Bayrak’s daughter. He has no criminal history. He has no history of alcohol or drug abuse, and had no particular medical or mental health issues. He was aged 40 as at the date of the offence, 43 at sentencing. By the time the psychiatrist assessed him, he had some symptoms of anxiety and depression, falling short of major depressive disorder. (Given that the assessment by the psychiatrist took place after his conviction for murder, and when he was facing sentencing, this is hardly surprising.) The psychiatrist noted that because the applicant continued to deny responsibility for the offence, he could reach no conclusion as to the prospects for rehabilitation.

The Remarks on Sentence

14. The sentencing judge made relevant findings of fact consistent with the jury verdict. He said:

“2  Ms Bayrak was a 33-year-old single mother who lived with her 8-year-old daughter in a home unit in … Parramatta. There she was brutally killed shortly after 8pm on Saturday 26 November 2005. Her assailant stabbed her a great many times. Stab wounds were found all over her body. The forensic pathologist said death was due to blood loss following multiple stab wounds to the chest and abdomen.

3  I am satisfied that the killing of Ms Bayrak was the culmination of a period of sustained behaviour by the offender towards her that demonstrated that he was utterly obsessed with her. There were a number of acts amounting to stalking and intimidation.”

15. Notwithstanding the evidence of stalking and intimidation, his Honour declined to find that the offence had been proved, to the requisite standard, to have been pre-meditated. He repeated that the applicant was obsessed with Ms Bayrak, even though he must have been well aware that she was not interested in continuing any contact with him and was actively avoiding it. He considered that the evidence of the applicant’s reports of Ms Bayrak’s alleged social security fraud was inconsistent with a plan to kill her. He said:

“22  … I am satisfied he went around to her home that Saturday evening intent on confronting her and furthering in some way his campaign of intimidation and harassment. Something occurred in the course of that confrontation - and it must have happened quite quickly - that caused him to vent his feelings in the most violent, callous, brutal and inhumane way. She was an utterly blameless victim. It is also a significant matter that he committed many more violent acts upon her than would have been necessary to simply kill her.

23  The fact that the offence occurred within the deceased’s own home where she was entitled to feel safe is an aggravating circumstance. So to [sic] is the fact that a weapon was used, although given that this is a common feature of this type of crime it is of minimal significance. Another relevant matter is that the offender was well aware of Ms Bayrak being a single mother. I am satisfied that he knew that killing Ms Bayrak would cause ancillary harm to an eight year old girl in depriving her of her mother, but he went ahead and killed nonetheless … A final matter to note in relation to these matters bearing upon the offender’s level of culpability and the objective seriousness of the offence is that this is a case that quite clearly involved an intention to kill and nothing less. That is generally regarded as a consideration tending to greater objective seriousness …

24  To conclude, I am satisfied that the offender’s level of culpability for the offence is quite significant. However I am not satisfied that it is so extreme that a life sentence must be imposed. Putting that in slightly different terms, I am not satisfied that this case falls into the worst case category.”

16. His Honour went to say:

“25  I must then consider whether the objective seriousness of the offence falls within the middle of the range. [Senior counsel for the applicant] did not resist such a finding. If the offence is at that point in the range, consideration must be given to whether the standard non-parole period should be imposed. There is a very wide range of circumstances in which the crime of murder can be committed. Having regard to the circumstances I have just been describing I have concluded that this case falls slightly above the middle of the range … The effect of the finding that the offence is above the middle of the range is that I am not required to impose the standard non-parole period. Nevertheless, that period, along with the maximum penalty, remain relevant as benchmarks against which to assess the appropriate sentence to be imposed.”

17. He declined to find, pursuant to s 44(2) of the Sentencing Procedure Act, that there were special circumstances justifying a departure from the ratio between the non-parole period and the head sentence there stated.

The ground of appeal

18. Although three grounds of appeal were initially pleaded, two were abandoned. The sole remaining ground was:

“1  His Honour erred in his application of the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen …”

19. In support of the ground, counsel for the applicant pointed to [25] of the Remarks on Sentence, and argued that that paragraph showed that the sentence judge had accorded undue weight to the standard non-parole period.

The Crown submissions

20. The Crown maintained that “Muldrock error” had not been established. The written submissions were prepared, and the argument in this case was heard, before the hearing in R v Davis [2015] NSWCCA 90 and the judgment therein. In Davis, I expressed my views (which have the concurrence of Basten JA and Adamson J) concerning the approach taken by the Crown to applications for leave to appeal against sentences imposed during the period 2006-2011 in respect of offences that carry a standard non-parole period. At that time, it was understood that the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168 stated the law to be applied. It is to be expected that judges sentenced in accordance with what was said in Way. However, in 2011, in Muldrock, the High Court declared that Way was wrongly decided.

21. If judges during that period sentenced in accordance with the law as it was then understood and stated in Way, then, axiomatically, by reason of Muldrock, they were in error. That is a reality that the Crown and this Court have to live with. It does not serve the administration of justice for the Crown to maintain that such error has not been shown. Implicit in such a submission is that the judge did not sentence in accordance with sentencing principles as then understood.

22. However, as I have said, the submissions in this case were made before the decision in Davis was delivered. It is to be hoped that the Crown will reconsider its position with respect to asserted “Muldrock error” cases.

Conclusion

23. On one view, the Remarks made by his Honour at [25], extracted above, are possibly susceptible of the interpretation that, because of his finding that the offence was “slightly above the middle of the range” of objective seriousness, and that that finding had the effect that he was not required to impose the standard non-parole period, he did not treat the standard non-parole period in the way that Muldrock condemns. However, a fair reading of the paragraph shows that, in accordance with the law at the time, he did accord primacy to the standard non-parole period. That conclusion is reinforced by the fact that, having found the offence to be “slightly above the middle of the range”, he then imposed a non-parole period that was “slightly above” the standard non-parole period.

24. I am satisfied, in the circumstances, that the standard non-parole period affected the determination of sentence in a way that is now known to be incorrect. This ground of appeal must succeed.

25. The consequence of that finding is that this Court must proceed to re-sentence: Kentwell v The Queen [2014] HCA 37; 313 ALR 451. It must do so independently of the sentence determination at first instance, although, obviously, the sentencing considerations then relevant will continue to be relevant, as well as any additional information available to this Court. Again my view as to the nature of the re-sentencing exercise are set out in Davis at [75]-[86].

26. In such a sentencing exercise, it would not ordinarily be appropriate to depart from findings of fact made by the sentencing judge, particularly where those facts are found after a trial, in which the sentencing judge has had the advantage of seeing and hearing the witnesses, and making an assessment of the whole of the evidence on a more complete basis than could be available to this Court. I propose to undertake the sentencing exercise on the basis of the facts found by R A Hulme J.

27. There is some additional information available to this Court, although, in this case, it is rather limited.

28. The applicant is now 49 years of age. He has been in custody since June 2007. He has affirmed two affidavits, dated 4 February 2014, and 25 February 2015. In the first he states that he has not been charged with any breaches of prison discipline. That is confirmed by an affidavit filed on behalf of the Crown.

29. The applicant also states that he has developed some health problems since his imprisonment. He now takes medication for hyper-tension, migraines, stomach ulcers and vitamin D deficiency. He has a prostate problem, for which he has a blood test every six months.

30. He is employed in a textiles workshop in the prison, doing work which he enjoys. He has undertaken some educational courses, and proposes to undertake more when they are available.

31. He retains the support of his family, including his son, who is now 18 years of age and visits him.

32. He had difficulty adjusting to life in prison, and initially felt unsafe. As a result, he spent the first two years of his incarceration on protection.

33. The 2015 affidavit confirms that circumstances are as previously described.

Re-sentencing

34. In re-sentencing the applicant, two statutory guideposts must be borne in mind - the maximum penalty applicable to the crime of murder (imprisonment for life); and the standard non-parole period (imprisonment for 20 years). It is also to be borne in mind that the role of this Court in undertaking this exercise is not to review the sentence imposed at first instance, but to undertake a fresh and independent exercise of the sentencing discretion. The sentence imposed was plainly within the range of sentences properly available for this offence. That the applicant did not initially seek leave to appeal against the sentence gives support to that conclusion.

35. That this Court, re-sentencing after error has been found, selects a sentence different (whether longer or shorter) from that imposed at first sentence is no finding or indication of error. It is no more than confirmation that, in respect of any offence, there will be a range of sentences available to the sentencing judge, and that a sentence selected from within that range will not be erroneous. Moreover, this Court has available to it a small amount of material additional to that that was available to the sentencing judge.

36. I would categorise the objective gravity of this offence as high. The applicant allowed his obsession with Ms Bayrak to overwhelm him, so that he stalked and harassed her. The murder, when committed, was brutal. By reason of the applicant’s relationship with Ms Bayrak, he was well aware that she was the sole parent of an eight year old daughter. In my opinion, this is a circumstance relevant to the assessment of objective gravity. (The sentencing judge expressly took this into account as an aggravating factor. A ground of appeal that asserted that this was an error was one of the grounds abandoned.)

37. I take into account also the applicant’s conduct whilst in custody. It is possible to make a more favourable assessment of his prospects of rehabilitation than did the sentencing judge, although that circumstance is somewhat mitigated by his refusal to accept responsibility for his actions. There is no evidence that that has changed.

38. Taking into account all of the circumstances, I have come to the view that the appropriate sentence is one of imprisonment for 27 years; application of the s 44(2) proportions yields a non-parole period of 20 years and 3 months. There are no special circumstances warranting departure from that ratio.

39. The orders I propose are:

1. The time in which to file an application for leave to appeal extended to 29 July 2013;

2. Leave to appeal granted;

3. Appeal allowed, sentence imposed on 16 April 2009 set aside;

4. The applicant is sentenced to imprisonment made up of a non-parole period of 20 years and 3 months commencing on 5 June 2007 and expiring on 4 September 2027, with a balance of term of 6 years and 9 months, expiring on 4 June 2034.

40. ADAMSON J: I agree with Simpson J.

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Decision last updated: 12 June 2015