R v Sedat Yuksel

[2008] NSWDC 365

CITATION:	R v Sedat YUKSEL [2008] NSWDC 365
JUDGMENT DATE:	1 October 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 7 years. Balance of term of 2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - convicted by jury - malicious wounding with intent to inflict grievous bodily harm - whether offence lies in the middle of the range of objective seriousness - whether standard non-parole period applies - offender suffering from acute paranoid psychosis at time of offence - vulnerable victim - use of weapon - significant injury - offender refused directions to address his psychiatric status - spontaneous and opportunistic offence - offender on conditional liberty at time of offence - significant prior criminal record
LEGISLATION CITED:	Crimes Act 1900 s 33 Crimes (Sentencing Procedure) Act 1999 s 21 A(2)(c), s, 21A(2)(d), s 21A(2)(j), s 21A(2)(l), s 21A(3), s 54B
CASES CITED:	R v AJP (2004) 150 A Crim R 575 R v Chisari [2006] NSWCCA 19
PARTIES:	Regina Sedat Yuksel
FILE NUMBER(S):	2008/11/0879
COUNSEL:	Mr K Buckman (Defence)
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1. Jason Little was watching television one night in his room at the Auburn Hotel when one of his neighbours provoked an altercation between them. The result of that altercation was that Mr Sedat Yuksel whom I am sentencing today produced a knife and stabbed Mr Little in the back. He was tried and convicted by a jury of maliciously wounding Mr Little with intent to inflict grievous bodily harm. That is an offence against s 33 of the Crimes Act 1900 and carries a maximum penalty of twenty-five years.

2. One of the main issues in this sentence is the question of where the offence lies in the range of objective seriousness, specifically whether or not it lies in the middle of the range of objective seriousness. That question is relevant to whether or not the standard non-parole period becomes applicable to this sentence.

3. Briefly, what happened is this. The offence occurred on 31 October 2007. Both Mr Little and Mr Yuksel were residents at the Auburn Hotel. Mr Little was watching television in his room, as I said. There was a loud knocking on his door. He ignored it for a while but finally got up and found that his neighbour, Sedat Yuksel, known as Sam Yuksel, was standing at the door.

4. Mr Yuksel verbally abused him claiming that Mr Little was yelling at him. Mr Little gave evidence that Mr Yuksel then punched Mr Little in the face and Mr Yuksel was charged with assault occasioning actual bodily harm. The jury in fact acquitted him of that charge.

5. Despite Mr Yuksel trying to get into Mr Little’s room, Mr Little managed to repel him. Mr Yuksel stayed outside and continued to try to get into the room although the door was locked. Mr Little regained his composure but became angry and went back outside again to confront Mr Yuksel. When he did this Mr Yuksel continued to yell abuse at him. Mr Yuksel, both in the earlier incident and at the stage that I am describing now, formed the view that Mr Little was yelling out abuse towards him. Mr Little explained that the only noise coming from his room was that of the television.

6. A fight broke out. They were in the hallway. Punches were thrown by both men. Mr Little fell because he lost his balance. He fell awkwardly and badly injured his ankle. He found that he could not get up. There was, as he described in his evidence before the jury, “no way I could stand up on both feet. I tried but I couldn’t.” He said that once he was down on the ground he was “absolutely helpless”. He was trying to knock on his neighbour’s door with his feet and he was calling out for help but there was no answer. Mr Little described Mr Yuksel as “still standing over the top of me as I was lying on the ground with a knife in his hand.”

7. Mr Little then describes Mr Yuksel as stomping with his foot on the top of his ankle. Mr Little was of the view that that action resulted in a broken ankle. I am not quite sure because I cannot recollect whether the assault occasioning actual bodily harm charge was the result of the initial punch when Mr Little first opened the door or that action. I do not take either into account because Mr Yuksel was acquitted of the charge of assault occasioning actual bodily harm.

8. Mr Little went on to describe his feeling of panic when Mr Yuksel produced a knife. He then described Mr Yuksel as kicking “my legs, my body, my stomach and then he rolled me over and stabbed me in the back, just under the right shoulder blade. I had to have fifteen staples and four stitches in my back.” He said he saw the knife and recalls being rolled over and stabbed in the back, what he described as a very long slash across the back of his back.

9. Mr Yuksel gave evidence in the trial and was cross-examined about the circumstances of Mr Little being on the floor and the stabbing. He denied stabbing Mr Little. He frankly admitted the fight that developed between them but has always denied, and denied before the jury, stabbing Mr Little. When he was cross-examined by the Crown Prosecutor, Mr Yuksel acknowledged that Mr Little had fallen to the ground and then said:

“He tried to get up, he still tried to get up, he goes ‘Let me get up’. He goes, ‘My ankle, my ankle’, you know, he’s screaming about his ankle, and you know.”

Mr Yuksel said that Mr Little tried to get up but then fell back down screaming that his ankle was hurting. Indeed he acknowledged that Mr Little tried to get up a few times but could not and was complaining about his ankle. He acknowledged that when he was down Mr Little was knocking on the bedroom door that was opposite his own room and yelling out “Help me, my ankle, help me”.

10. Mr Little did indeed receive a bad gash to his back just under the right shoulder. That gash was photographed whilst he was in hospital and the photographs of the gash, namely photographs number 1, 2 and 7 and 6 became part of exhibit G in the trial. I accept Mr Little’s evidence that the wound needed stapling and stitches. That is obvious from looking at the size of the wound which measures between thirteen and fifteen centimetres across.

11. Another neighbour came upon the scene. He assisted Mr Little. The police were called. Mr Yuksel was arrested. As I said he was tried before a jury which convicted him on 16 June 2008.

12. The first and most important finding that I need to make is where this offence lies in the range of objective seriousness. That means just how bad this crime was in the range of malicious wound with intent to inflect grievous bodily harm. The Crown Prosecutor, in her submissions, says that the offence is within the middle of the range of objective seriousness or above it. She emphasises that the victim was effectively helpless at the time that the offence was committed. She also draws attention to the fact that the offence was committed with the use of a weapon.

13. On the other hand, Mr Buckman, who appeared for Mr Yuksel at the trial and on the sentence, argues that the offence is below the middle of the range of objective seriousness. He argues that the injury was not permanent, nor did it lead to any disfigurement. It did not require surgery other than obviously the stitches and the victim has made a full recovery. There was no need for ongoing treatment. So far as the helplessness of the victim was concerned, Mr Buckman argued that the offence had to be seen in the context that it was a fight between two men. It was, as he said, in the context of a fight mutually agreed upon. It was not, for example, an unprovoked attack. In addition, Mr Buckman pointed out that his client was not to know that the victim’s ankle had been broken. He also pointed out that the crime occurred over a relatively short period of time.

14. Mr Buckman’s main emphasis in his submission that the offence fell below the middle of the range of objective seriousness was a reliance on the psychiatric evidence. There was admitted into evidence as exhibit C on the sentence a psychiatric report by Dr Barbara Sinclair dated 4 September 2008. She undertook a psychiatric assessment of Mr Yuksel at the Metropolitan Remand and Reception Centre at Silverwater on 29 August 2008. Significantly, she expressed the opinion that “at the time of the alleged offence it is likely that Mr Yuksel was suffering from an acute paranoid psychosis, most likely fuelled by heavy cannabis use and/or alcohol.” She went on to say that she believed that Mr Yuksel is suffering from a paranoid psychosis. She thought that at the time of the offence Mr Yuksel “appeared to be experiencing hallucinations and ideas of thought interference and paranoia. This was a probable drug induced psychosis fuelled by cannabis.”

15. Mr Buckman points to that expression of opinion which he says is supported by the evidence of his client apparently hearing abuse from Mr Little in circumstances where it was clear that all Mr Little was doing was watching television. Mr Buckman argues that the episode of acute paranoid psychosis was clearly a causative factor in Mr Yuksel’s offending behaviour and that, therefore, added to the other factors, brought the offence below the middle of the range of objective seriousness.

16. Before turning to make my own finding on where the offence lies, I record that I accept the evidence of Dr Sinclair. I accept her findings and her conclusions.

17. The factors which are relevant for me to take into account on where an offence lies in the range of objective seriousness include, according to Simpson J’s judgment in R v AJP (2004) 150 A Crim R 575 at [13], the objective facts of the offence itself, the consequences of the conduct and factors which impinge upon the mental attitude of the offender such as motivation and mental state or mental illness. By reference to those factors, I need to determine where this offence lies in the range of objective seriousness. That is just how bad an example of this crime Mr Yuksel’s offence was.

18. I find that Mr Little was a vulnerable victim in accordance with s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999. I accept his evidence that he was effectively helpless at the time. I do not find that Mr Yuksel knew that Mr Little’s ankle was broken, but it is clear from Mr Yuksel’s cross-examination that he had a full appreciation of the fact that Mr Little was helpless and crying for help. This, in my opinion, is a seriously aggravating feature of the offence.

19. In addition, I find that there was the use of a weapon which is an aggravating feature in accordance with s 21A(2)(c) of the Crimes (Sentencing Procedure) Act. I was inclined to think that, because of the nature of the offence being a wounding, that the use of a weapon would be regarded as part of the definition of the offence. But my attention was drawn by the Crown Prosecutor to the Court of Criminal Appeal’s decision in R v Chisari [2006] NSWCCA 19. Simpson J, with whom Beazley JA and Rothman J agreed, said that in her opinion:

“ The actual use of a weapon is not an essential element of an offence against s 33 and it was an error for his Honour so to hold. The infliction of grievous bodily harm can be brought about without the use of a weapon and using only the body of the offender. The offence may be committed without any weapon at all.”

That was, I acknowledge, a case about a car being used to run over a victim. It is obviously possible for a wound to be inflicted without the use of a weapon. It would probably be unusual; most crimes of this kind would be committed with the use of a weapon. I do take into account as adding to the objective seriousness of this crime that it was committed by use of a weapon but I do not place significant weight upon that factor because I expect a vast majority of wounding offences would involve a weapon. Nevertheless, it adds to the objective seriousness of the offence.

20. Mr Buckman submitted that the injury was not substantial and therefore a mitigating factor under s 21A(3). I do not accept that submission. Whilst not finding that the injury was substantial, I do regard the injury as significant. Factors such as a significant loss of blood, the injury being life-threatening or requiring significant surgery, in my opinion, would be examples of substantial injuries and injuries which may bring an offence such as this into the upper range of objective seriousness. It is plain from the photograph of the injury and from the evidence of the requirement for hospital treatment that Mr Little received a very bad wound. It was certainly not the most serious kind of wound that he could have received but it was far from insignificant.

21. Although I accept that the offence occurred in the context of a brawl between two men, two factors need to be taken into account in assessing that submission. The first is that the brawl was initiated by Mr Yuksel in the first place. He approached Mr Little’s door and then persevered in demanding the confrontation. That perseverance produced two confrontations. The second factor is that, although there was a fight between the two men, the evidence makes it abundantly clear that Mr Little had been rendered practically helpless at the stage that he was stabbed by Mr Yuksel. I therefore regard the circumstance that it was a fight between the two men as not taking away significantly from the objective seriousness of the offending behaviour.

22. The most significant factor, in my opinion, which has the potential to reduce the objective seriousness of the offence in this case is the psychiatric evidence which, as I say, I have accepted. It is clear that Mr Yuksel was suffering a significant psychiatric illness at the time that he committed this offence. The psychiatrist found that that was most likely fuelled by heavy cannabis use or alcohol. That finding which I make about Mr Yuksel’s psychiatric condition needs to be seen in the context of the pre-sentence report prepared by a Probation and Parole officer dated 24 July 2008 which is part of exhibit A. In that report the author expresses the opinion that Mr Yuksel “lacks any family support and has declined advice and direction to seek psychiatric assistance whilst in the community.” Whilst I am not sure that he is completely lacking family support, I accept the evidence from the Probation officer that Mr Yuksel had declined advice and direction to seek psychiatric assistance whilst in the community. The author also said that the Probation and Parole Service records indicate “that he failed to follow direction to address his apparent psychiatric status.”

23. I make reference to those findings, as I said, to put the finding that I make about his psychiatric condition into context. This is not a case of a person who suddenly and unexpectedly becomes the subject of an acute mental episode. Nor is it a case of a person who has an undiagnosed long-term mental condition such as depression. The evidence is clear that Mr Yuksel’s mental state, or mental condition, is something which had been drawn to his attention in the past and the evidence is, and I accept, that he has refused or at least declined directions and recommendations to have that treated. Hence the impact of his mental condition on the offence in this case needs to be seen in the context that he knew about his condition and had declined to get assistance for it.

24. I am satisfied that this offence falls within the middle of the range of objective seriousness. I have not found this finding an easy one to make but the factors which clearly puts it, in my opinion, within that range are the vulnerability of the victim and the extent of the wound requiring hospitalisation and suturing and the fact, to a lesser extent, that a weapon was used. Although I regard the mental condition of Mr Yuksel as a significant factor, I do not regard it as sufficiently significant to bring the offence below the middle of the range of objective seriousness, particularly given the finding which I made about the context of that mental illness.

25. I therefore am required by s 54B of the Crimes (Sentencing Procedure) Act to set the standard non-parole period for this offence unless I determine that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. There are, in my opinion, no reasons for setting a longer period.

26. The same section goes on to provide that the reasons for which I may set a shorter period than the standard non-parole period are only those referred to s 21A of the same Act. The only mitigating factor which may impact upon the standard non-parole period in this case is the submission made by Mr Buckman, acknowledged by the Crown, under s 21A(3)(b) that the offence was not part of a planned or organised criminal activity. I accept Mr Buckman’s submission that the offence was spontaneous and opportunistic rather than planned. However, that is the only mitigating factor which I regard as relevant.

27. Mr Buckman had submitted that the offence was provoked by the victim. I do not accept that submission. The whole course of events was provoked by the persistent and aggravating behaviour of Mr Yuksel. It is true that the victim, Mr Little, stepped outside his door on more than one occasion and engaged in a fight but that, in my opinion, is not the kind of behaviour which would enable me to find that the offence in this case, namely stabbing Mr Little whilst he was helpless on the ground, was provoked by Mr Little.

28. I have already given reasons for rejecting the submission that the injury was not substantial. I do accept that it was not planned in a sense that is no doubt the result of Mr Yuksel’s mental condition at the time. I do not regard that mitigating factor as significant enough to cause me to set a non-parole period that is shorter than the standard non-parole period.

29. I am therefore required by the legislature, by Parliament, to set as a non-parole period in this case, the standard non-parole period fixed for this sentence, which is seven years.

30. That is a very significant non-parole period. However, when one looks at other aggravating features not directly relevant to the objective seriousness of the offence and the subjective features of Mr Yuksel, I regard the non-parole period of seven years as appropriate. Briefly, the other aggravating features are that the offence was committed whilst Mr Yuksel was on conditional liberty. A court had granted him freedom and he abused that freedom by taking a knife to the victim in this case, and I take that conditional liberty abuse into account under s 21A(2)(j). Under s 21A(2)(d) is Mr Yuksel’s criminal record. He has a bad criminal record. He has been offending since he was a child. He has been committing significant and serious offences for the last twenty years as an adult. He has been serving gaol sentences for assaults between 1988 and 2001. Around about 2000 or 2001 he received a significant sentence for armed robbery with a dangerous weapon. Significantly, two of the offences in his record are serious personal violence offences. Section 21A(2)(d) requires me to particularly take those into account when, as is the case here, an offender is being sentenced for a serious personal violence offence.

31. Mr Yuksel’s personal features do not assist him. He is now thirty-eight years of age, having been born on 3 June 1970. The pre-sentence report describes him as responding poorly to supervision. He has had limited employment in the past, having been expelled from school in year 9. He has expressed an attitude to pursue the victim if he gets a long sentence. That is a matter of some concern to the Probation and Parole Service. The Probation and Parole Service regards him as having a high risk of re-offending. It has great concerns for the community if there is no psychiatric assessment and treatment before he is released. Both the pre-sentence report and the psychiatric report contain recommendations for his future management and treatment. I propose to direct in due course that both of those reports accompany Mr Yuksel’s papers so that both are taken into account by the Parole Authority when, in due course, he comes to be assessed for parole.

32. Mr Buckman submitted that there are special circumstances warranting a longer than normal balance of the sentence. The Crown Prosecutor acknowledged that and I propose to increase the balance of the term of the sentence slightly to reflect that submission which I have accepted. The submission was that there was a need for ongoing and significant counselling for him on his release because of his mental health condition. I find that that is a special circumstance which warrants setting a period longer than the standard period.

33. The sentence which I propose to impose is a sentence of nine years with a non-parole period of seven years.

34. Mr Yuksel, I set a non-parole period for your sentence of seven years from 31 October 2007 to 30 October 2014. The balance of the term will be two years from 31 October 2014 to 30 October 2016. There are special circumstances for that term being more than one-third of the non-parole period for the sentence.

35. I direct that the pre-sentence report dated 24 July 2008 and the Justice Health report of Dr Sinclair dated 4 September 2008 both accompany Mr Yuksel with his papers into custody and be drawn to the attention of the Parole Authority when he is considered for parole.

36. Mr Yuksel I am required to explain to you, I am going to date your sentence from the date of your arrest, 31 October 2007. The first date upon which you become eligible to considered for parole will be 30 October 2014. Whether or not you are granted parole depends upon the Parole Authority. Your overall sentence expires on 30 October 2016. The prisoner can be taken down.

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