R v Cakovski - [2005] NSWSC 1001

CITATION:
R v Cakovski [2005] NSWSC 1001

HEARING DATE(S): 21 June, 26 August 2005

JUDGMENT DATE :

7 October 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Studdert J

DECISION:
Sentenced to a term of imprisonment of seven years eight months commencing 28 April 2003 and to expire on 27 December 2010. A non parole period of five years eight months is set. The first date upon which the offender will be eligible for release on parole is 27 December 2008.

CATCHWORDS:
Criminal law - sentencing - manslaughter - excessive self defence - plea of guilty.

LEGISLATION CITED:
Crimes Act, s 24
Crimes (Sentencing Procedure) Act, ss 3A, 21A, 44

CASES CITED:
R v Ahmad [2005] NSWSC 911
R v Blacklidge (unreported, NSWCCA, 12 December 1995)
R v Cioban [2003] NSWCCA 304
R v Nguyen [2002] NSWSC 536
R v Scott [2003] NSWSC 627
R v Trevenna 149 A Crim R 505
R v Vuni [2005] NSWSC 184

PARTIES:
Regina v Daniel Cakovski

FILE NUMBER(S):
SC 2002/24

COUNSEL:
P. Calvert (Crown)
W. Terracini SC/R. Pontello (Offender)

SOLICITORS:
S. Kavanagh (Crown)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Friday 7 October 2005

2002/24 REGINA v DANIEL CAKOVSKI
SENTENCE

1 HIS HONOUR: The offender, Daniel Cakovski, pleaded guilty upon arraignment before Barr J on 5 May 2005 to the crime of the manslaughter of Eugene Victorovich Petroff at Strathfield on 20 May 2001. The matter was fixed for hearing before me on 24 June 2005, but on 21 June 2005, on the application of Mr Terracini of Senior Counsel for the offender, I adjourned the sentencing proceedings until 19 August 2005. That date was subsequently altered to 26 August 2005. The purpose of the adjournment was to afford Mr Terracini the opportunity to introduce medical evidence on behalf of the offender.

2 A statement of agreed facts was tendered before this Court as Exhibit A. The content of that statement I now record:

“For the purposes of these criminal proceedings, the abovenamed Accused, upon the advice of his lawyer, and the Crown have agreed upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW):

1. Eugene Petroff was pronounced deceased at 8.15 am on 20 May 2001. The cause of death was the combined effect of four stab wounds to the chest and an incised wound to the face. The two most significant wounds were one, with a depth of about 80 mm, penetrating the right lung, and another, with a depth of about 120 mm, passing through the heart. All the wounds were inflicted by the accused between about 5.25 am and 5.50 am on 20 May 2001, in Parnell Street, Strathfield, near Strathfield Railway Station.

2. The deceased had attended a reunion at the Russian Club in Strathfield commencing at about 7.30 pm on 19 May 2001, during which he had consumed alcohol. There was evidence that, by the time he left the…

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 Cakovski

Details

AGLC: R v Cakovski [2005] NSWSC 1001
Case: [2005] NSWSC 1001
Decision Date: 7 October 2005

CaseChat Overview and Summary

The defendant, Cakovski, faced the court following a plea of guilty to manslaughter. The circumstances leading to the charge involved a fatal altercation where Cakovski claimed excessive self-defence. The case was heard and determined by the relevant court of criminal jurisdiction. The primary issue before the court was to assess the appropriate sentence for the offence, considering the plea of excessive self-defence and the circumstances under which the offence was committed. The court was required to balance the gravity of the offence with the mitigating factor of self-defence, evaluating whether the defendant's actions were proportionate to the threat faced.

The court undertook a detailed analysis of the evidence presented, including witness testimonies, the defendant's account, and any relevant background information. It examined the principle of excessive self-defence and its application to the facts of the case, considering whether Cakovski's response was reasonable in the given context. The court also evaluated the legal framework governing sentencing for manslaughter and the specific factors that should be taken into account. After careful deliberation, the court determined that Cakovski's actions, while in response to a perceived threat, were nonetheless excessive, leading to an unlawful outcome. This conclusion was based on the disproportionate nature of the response relative to the threat.

The court, having considered all relevant factors, sentenced Cakovski to a term of imprisonment, reflecting the seriousness of the offence and the need for deterrence. The sentence was tailored to ensure it met the objectives of punishment, rehabilitation, and public protection, taking into account the plea of guilty and the mitigating factor of self-defence. The court's decision was communicated clearly, providing reasons for the sentence imposed and the considerations that influenced its determination.

Orders