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
McKinnon v R [2020] NSWCCA 106
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Brooks (No 5) [2017] NSWSC 824
R v Fernando (1992) 76 A Crim R 58
Texts Cited: Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017, Parliamentary Debates (Hansard) 11 October 2017
Category: Sentence Parties: Crown
Jake BurnsRepresentation: Counsel:
Solicitors:
M Paish (Crown)
L McSpedden (Offender)
Director of Public Prosecutions (Crown)
M Rumore (Offender)
File Number(s): 2020/00079873 Publication restriction: None
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Judgment
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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
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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…
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- AGLC
- R v Burns (No 2) [2022] NSWSC 140
- Case
- [2022] NSWSC 140
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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