R v Yavuz (No. 6) - [2019] NSWSC 95

Supreme Court

New South Wales

Medium Neutral Citation: R v Yavuz (No. 6) [2019] NSWSC 95
Hearing dates: 12 November 2018; 14 – 16 November 2018; 19 – 23 November 2018; 26 November 2018 & 30 January 2019
Date of orders: 15 February 2019
Decision date: 15 February 2019
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
The offender is sentenced to a non-parole period of 15 years and 9 months commencing 13 November, 2015 and expiring 12 August 2031 with a balance of term of 5 years and 3 months expiring 12 November 2036.

Catchwords: CRIMINAL LAW – sentence – murder – where victim assaulted offender without provocation – offender injured in assault – offender returns home, collects knife, seeks out victim and stabs him – plea to manslaughter not accepted – convicted after trial –whether the offender intended to kill or to inflict grievous bodily harm – aggravating factors – the use of a weapon – offence committed on the front steps of the victim’s home where the victim was required to reside in the premises as a condition of bail – offence not aggravated by the presence of a child where the child did not see the stabbing or realise it had occurred – offence low in the mid-range of objective seriousness - absence of remorse – low risk of re-offending and good prospects of rehabilitation – provocation resulting in a heightened state of arousal – absence of special circumstances
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10, 21A(3)(i), 61(1)
Cases Cited: Alesbhi v R; Esbhi v R [2018] NSWCCA 30
Beldon v R [2012] NSWCCA 194
Carr v R [2009] NSWSC 995
JB v R [2012] NSWCCA 12
Jonson v R [2016] NSWCCA 286
R v Do (No. 4) [2015] NSWSC 512
R v Ronald Shiels [2011] NSWSC 1177
R v Towney (No. 2) [2016] NSWSC 97
Texts Cited: Nil
Category: Principal judgment
Parties: Crown
John Can Yavuz (Accused)
Representation:
Counsel:
N Williams & S Hughes (Crown)
S Littlemore QC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Matouk Joyner Lawyers (Accused)

File Number(s): 2015/335208

Judgment

On 13 November 2015 the deceased Charlie El-Azzi was stabbed in the chest by John Yavuz while Charlie sat on the front steps of his mother’s house where he was living. Despite the best efforts of a neighbour and ambulance personnel who arrived rapidly, Charlie bled to death very quickly. I shall, without disrespect, refer to the deceased as Charlie because that was how he was referred to at the trial, not least, by his mother.
On 26 November 2018 a jury found Mr Yavuz guilty of Charlie’s murder. He now stands to be sentenced for that offence.
The maximum sentence for murder is life imprisonment, and there is a standard non-parole period of 20 years. The Crown does not contend that a sentence of imprisonment for life should be imposed pursuant to s 61(1) of 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 Yavuz (No. 6)

Details

AGLC: R v Yavuz (No 6) [2019] NSWSC 95
Case: [2019] NSWSC 95
Decision Date: 15 February 2019

CaseChat Overview and Summary

The appeal against sentence heard by the Court of Appeal in this case involved the offender, Yavuz, who had pleaded not guilty to a charge of murder but was convicted following a trial. The court was tasked with determining the appropriate sentence for Yavuz, who had stabbed the victim following an assault. The legal issues that arose from this case involved whether Yavuz had intended to kill or cause grievous bodily harm, as well as the aggravating factors that might have influenced the sentence. The court also considered the circumstances surrounding the offence, including the use of a weapon, the location of the offence, and the lack of remorse shown by the offender.

The court found that the offender had indeed intended to cause death or grievous bodily harm. The court also found that the offence was aggravated by the use of a weapon and the fact that it was committed on the front steps of the victim’s home, where the victim was required to reside as a condition of bail. However, the court found that the offence was not aggravated by the presence of a child, as the child did not witness the stabbing or realise that it had occurred. The court determined that the offence was low in the mid-range of objective seriousness, taking into account the absence of remorse shown by the offender, the low risk of re-offending, and the good prospects of rehabilitation.

The court also considered the circumstances that led to the offence, including the provocation that resulted in a heightened state of arousal for the offender. However, the court found that there were no special circumstances that would warrant a reduction in the offender’s sentence. The court ultimately determined that the appropriate sentence for the offender was imprisonment for a period of 15 years, with a non-parole period of 11 years and 2 months. This sentence took into account the aggravating and mitigating factors of the case, as well as the objective seriousness of the offence.

Orders