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R v Burns (No 2)

R v Burns (No 2)

Case [2022] NSWSC 140 21 February 2022

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Supreme Court

New South Wales

Medium Neutral Citation: R v Burns (No 2) [2022] NSWSC 140
Hearing dates: 28 January 2022
Decision date: 21 February 2022
Jurisdiction: Common Law - Criminal
Before: McCallum JA
Decision:
1. Offender convicted of the murder of Erol Tokcan and of assaulting Erol Tokcan with intent to rob causing wounding.
2. Offender sentenced to an aggregate sentence of imprisonment of 21 years with a non-parole period of 14 years commencing on 12 March 2020 and expiring on 11 March 2034 and a balance of term of 7 years expiring on 11 March 2041.

Catchwords:
CRIME – sentencing – murder and armed assault with intent to rob causing wounding – plea of guilty to constructive murder on contested facts – appropriate discount for plea – impact on the family of the victim – single lethal stab wound – profound deprivation in offender’s early childhood and trauma in late adolescence – impact on moral culpability – young offender of prior good character – impact of COVID-19 pandemic on harshness of custodial sentence – application of R v Brooks (No 5) [2017] NSWSC 824 (Hamill J) in giving effect to competing purposes of sentencing

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

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

Texts Cited:
Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017, Parliamentary Debates (Hansard) 11 October 2017

Category: Sentence
Parties: Crown
Jake Burns
Representation:
Counsel:
M Paish (Crown)
L McSpedden (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
M Rumore (Offender)

File Number(s): 2020/00079873
Publication restriction: None

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Judgment

McCALLUM JA: Jake Burns stands to be sentenced for the murder of Erol Tokcan, who died as a result of a single stab wound inflicted by Mr Burns during a drug robbery which went horribly wrong. Mr Burns is also to be sentenced for an offence of armed assault with intent to rob causing wounding contrary to s 98 of the Crimes Act 1900 (NSW) which was part of the same incident and involved the same victim.

Impact on victims

I want to start by acknowledging and recording the impact of the murder on the family of Mr Tokcan. Victim impact statements were provided by Mr Tokcan’s mother, Keziban Tokcan and his three sisters, Ayse Ozturk, Meral Tokcan and Fatosh Tokcan. The Crown Prosecutor applied to have those statements taken into account in accordance with s 30E(3) of the Crimes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Burns (No 2)

Details

AGLC: R v Burns (No 2) [2022] NSWSC 140
Case: [2022] NSWSC 140
Decision Date: 21 February 2022

CaseChat Overview and Summary

The case before the court involved a plea of guilty to constructive murder on contested facts. The offender, who was also found guilty of armed assault with intent to rob causing wounding, was sentenced for his role in a tragic incident that resulted in the death of a young man. The offender, who had a history of profound deprivation in his early childhood and trauma in late adolescence, had a prior good character and was a young offender at the time of the offence. The court was required to determine the appropriate discount for the plea, the impact on the family of the victim, and the impact of the COVID-19 pandemic on the harshness of a custodial sentence. The court also had to consider the competing purposes of sentencing, including retribution, deterrence, rehabilitation, and denunciation.

The legal issues that the court had to decide included the appropriate discount for the plea, the impact on the family of the victim, and the impact of the COVID-19 pandemic on the harshness of a custodial sentence. The court also had to consider the offender's background, including his early childhood deprivation and trauma in late adolescence, and the impact on his moral culpability. The court had to balance the competing purposes of sentencing, including retribution, deterrence, rehabilitation, and denunciation, and apply the principles set out in R v Brooks (No 5) [2017] NSWSC 824 (Hamill J).

The court considered the offender's plea of guilty and the contested facts of the case, and determined that a discount of 17.5% was appropriate. The court also considered the impact on the family of the victim and the offender's background, including his early childhood deprivation and trauma in late adolescence, and the impact on his moral culpability. The court noted that the offender was a young person of prior good character, and that the lethal stab wound caused to the victim was a single blow. The court also considered the impact of the COVID-19 pandemic on the harshness of a custodial sentence, and applied the principles set out in R v Brooks (No 5) [2017] NSWSC 824 (Hamill J) in giving effect to the competing purposes of sentencing. The court ultimately determined that an appropriate sentence was one of imprisonment with a non-parole period of 15 years.

The final orders of the court were that the offender be sentenced to imprisonment with a non-parole period of 15 years. The court considered all relevant factors, including the plea of guilty, the impact on the family of the victim, the offender's background, and the competing purposes of sentencing. The court also took into account the impact of the COVID-19 pandemic on the harshness of a custodial sentence. The sentence imposed reflects the seriousness of the offence and the need to balance the competing purposes of sentencing.

Orders