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

1. 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.

2. On 26 November 2018 a jury found Mr Yavuz guilty of Charlie’s murder. He now stands to be sentenced for that offence.

3. 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 Crimes (Sentencing Procedure) Act 1999 (NSW) in the present case. Nor do I consider that a life sentence is warranted.

4. My task is to find facts consistent with the jury’s verdict. That principle has some significance in the present case because of submissions made by Mr Littlemore QC for the offender in relation to the cause of Charlie’s death. I note that facts I find against the offender must be found beyond reasonable doubt and that facts found in favour of the offender need only be found on the balance of probabilities.

The facts

5. At about 1:30pm on 13 November the offender’s partner, Felicity Maifala drove to Wangee Road, Greenacre and met the offender, pursuant to an arrangement they had. She parked her car just around the corner from where the offender lived in Roberts Road, and across the road from the house where Charlie was living with his mother.

6. The offender got into Ms Maifala’s car and sat in the front passenger seat. They had been sitting and talking for a few minutes when a man, later ascertained to be Charlie, walked up to the car. He walked around the car and was looking directly at Ms Maifala through the passenger side window. The offender asked him if he was okay, to which Charlie replied, “I’m fucking okay, I’m just walking on the footpath”. The next thing that happened was that Charlie started throwing punches into the car and those punches connected with the offender’s head. The offender managed to get out of the car, and Charlie continued to assault the offender by punching him.

7. Ms Maifala got out of the car and walked around the back of it. She said “Stop it” and told Charlie to leave the offender alone. At that stage, Charlie had the offender by his T-shirt and was relentlessly punching him. The offender eventually freed himself from Charlie’s hold, but by that stage his whole face was bloodied from the assault. The offender said to Ms Maifala “Call the cops”. The offender then walked towards Roberts Road.

8. Ms Maifala saw Charlie walking diagonally across Wangee Road. She jumped into her car and turned left into Roberts Road.

9. The evidence then given by Ms Maifala differed from what she had told the police in her statement made on the night of 13 November 2015. The evidence she gave in the witness box was that when she turned into Roberts Road she saw the offender walking towards his house. She tooted the horn and stopped, and he got into the car. She then turned left at the next street which was Wilbur Street. She and the offender then sat talking in the car for a short period of time. The offender subsequently got out of her car and she drove around the block after sitting in the car for about five minutes. She said that after the offender got out of the car she was ringing him. She said she made five calls but he only picked up the last of those calls. The offender yelled at her “Call the cops babe” and then he hung up.

10. What Ms Maifala told the police in her statement on the night of Charlie’s death was that, after the fight, she drove around into Wilbur Street and was ringing to find where the offender was. She said she rang five times and it was only on the fifth call that the offender picked up the phone and told her to call the cops.

11. Ms Maifala’s explanation for the change in her account was that she was under a lot of stress and in shock when she made the statement to the police, and that it did not accurately reflect what had happened.

12. The importance of the different accounts is this. It was submitted on behalf of the offender, in reliance on a report from a psychologist, Dr Peter Ashkar, who examined the offender, that he was in a heightened state of arousal and may have been concussed, and that those matters when taken with the provocation of the assault upon him by Charlie, diminished his moral culpability for the stabbing.

13. If Ms Maifala’s evidence in the witness box is to be accepted it would tend to show that more time elapsed between the fight and the stabbing, and that the time that the offender sat with Ms Maifala in the car talking in Wilbur Street gave him a longer period to calm down and consider what he should do as a result of the fight. A finding to that effect would be against the interest of the offender. It is not a finding I can make beyond reasonable doubt particularly because the account given by Ms Maifala a few hours after the fight is far more likely to be accurate than the account given in the witness box some years later. Further, the account given in the witness box does not sit easily with her making five calls to the offender after he got out of the car and with his telling her, on the fifth call when he answered, to ring the cops.

14. I find that after the fight, the next time that Ms Maifala saw the offender was when he ran out of his house after he had stabbed Charlie and then returned with the knife to his own house.

15. There was also a dispute about whether, at the conclusion of the fight by the car, the offender told Charlie that he, the offender, would come back and kill him. That evidence came from the police statement made by Mr Elmrabt, and also from Mr Chami. Mr Elmrabt and Mr Chami were the two plumbers working in the adjoining property in Wangee Road. Mr Elmrabt saw the fight on the other side of Wangee Road and subsequently saw the offender return with a knife and stab Charlie.

16. In his police statement Mr Elmrabt said that at the conclusion of the fight the offender was running towards Roberts Road, and he screamed out “I am going to come back and I am going to kill you”. That evidence emerged only when Mr Elmrabt’s memory was refreshed from reading his statement. His evidence in chief, before he refreshed his memory, was that after the fight he heard the offender say something along the lines of “I will come back and hit you” or “I will be coming back for you”. Mr Elmrabt was a little uncertain in his evidence in chief about what was said.

17. Mr Chami also gave evidence that he heard someone, who he assumed to be the offender, say words to the effect, “You’re dead. I’m going to kill you.”

18. I shall return to the resolution of that matter presently.

19. The offender went to his house in Roberts Road, obtained a kitchen knife, and returned to Wangee Road. He stood on the nature strip in front of the property where Charlie lived. He called out to Charlie quite loudly and said words to the effect “Come out and get on your knees and apologise”. When Mr Elmrabt’s memory was again refreshed from his statement, he was asked what the offender said when he came back and shouted at Charlie. Mr Elmrabt replied that the offender said “I’m going to come back and I told you I’m going to kill you”.

20. Immediately after Charlie was stabbed, Mr Elmrabt made a triple-0 call and in the course of that call he said this:

Earlier on they had a fight, and then its [sic] settled down a bit, and then this man went back into his house then the man came back and started abusing him with a knife telling him he was going to kill him. He jumped over the fence and started with his mum. He was abusing the lady first and he went to the man and stabbed him and then ran away with the knife.

21. I find beyond reasonable doubt that at the time the offender was standing outside Charlie’s front fence he said to Charlie, amongst other things, that he was going to kill him. I cannot, however, be satisfied to the requisite standard that he threatened to kill him as he was running off at the conclusion of the fight. I have referred to the uncertainty of Mr Elmrabt’s evidence about this matter. Mr Chami’s evidence was also somewhat problematic because he agreed that some of the evidence he gave had been told to him by Mr Elmrabt, but it was uncertain which evidence that was.

22. The fact that the triple-0 call was made almost immediately after Charlie was stabbed and within minutes of the offender standing at the front fence shouting at Charlie causes me to think that the account given by Mr Elmrabt to the triple-0 operator should be accepted as reliable. I do not accept the submission on behalf of the offender that the words used in the triple-0 call are far more consistent with Mr Elmrabt’s acknowledging a subjective belief leading to reconstruction. What Mr Elmrabt said in that triple-0 call receives some support from the evidence of a neighbour, Mr Ramadani, who heard someone located to the right of his house saying, “motherfucker, I’ll kill you”.

23. In any event, I do not consider that a determination of that matter is conclusive of the significant question of whether the offender intended to kill Charlie or only to inflict grievous bodily harm upon him, for reasons to which I will come.

24. When Charlie did not respond to the offender’s demands for an apology, the offender jumped the fence and ran towards the front steps where Charlie was sitting. Mrs El-Azzi attempted to block his way and the offender pushed her to the ground. He ran up to the steps and stabbed Charlie in the upper left chest area. After the knife came out of his chest it fell to the ground. The offender screamed out “Where’s the knife, where’s the knife?” He then saw the knife on the ground, picked it up and ran away towards Roberts Road.

25. Within minutes of the stabbing, both Mr Elmrabt and Mr Ramadani saw blood coming from Charlie’s chest and his mouth. Mr Ramadani performed CPR on Charlie while speaking on the phone to the ambulance service.

26. By the time the ambulance arrived, and probably before, Charlie was in cardiac arrest. Despite both finger thoracotomies and a clam-shell thoracotomy being performed, he died at the scene. These thoracotomies are procedures to attempt to rectify reversible causes of cardiac arrest. A finger thoracotomy is the making of a hole or passage into the chest cavity to allow any air or blood trapped within the cavity to escape. A clamshell thoracotomy is a more extreme measure that opens and lifts the chest up to see if there is blood around the heart that is impeding its function.

27. After the offender returned the knife to his house, he came out of the front gate and got into Ms Maifala’s car. They then proceeded to drive around for a number of hours at his direction. She said that he did not tell her what had happened, but he was very upset. Eventually they went to see a solicitor later that day.

28. While they were driving around, Detective Senior Constable Delaney, who was involved in the investigation, telephoned the offender on his mobile phone at about 3:17pm. Detective Delaney asked if he could speak to John, and the offender said he was John. Detective Delaney introduced himself and said:

We need to speak to you in relation to the murder of Charlie El-Azzi. We need you to come to Bankstown. Do you know what we’re talking about?

The offender said “No” and terminated the call.

29. At about 8:00pm that day the offender went to Bankstown Police Station with his solicitor. He was arrested and subsequently charged with Charlie’s murder.

30. During the trial, there was lengthy cross-examination of two forensic pathologists called by the Crown. The first was Dr Rebecca Irvine who had performed the autopsy. The second was Professor Johan Duflou, retained by the Crown to respond to a report from another forensic pathologist, Professor Peter Ellis, which had been served by those acting for the offender.

31. There were differences in opinion between Dr Irvine and Professor Duflou as to the precise cause of Charlie’s death in terms of what internal organs and tissue had been penetrated by the knife. Those differences tended to demonstrate that there was not even agreement amongst the pathologists as to which injury or lesion was the one responsible for his death. However, the evidence was entirely consistent that Charlie’s death was caused by a sharp force injury to the body which resulted in exsanguinating blood loss, and that the injury and blood loss were not caused by ambulance officers or medical intervention at the scene.

32. Dr Irvine was of the opinion that the sharp force injury was what she described as the atypical stab wound on the left side of the chest area near the ribcage and to the left of the left nipple. That wound is shown on Exhibit “T”. Precisely how that wound tracked inside Charlie’s body and caused the blood loss was where the two Crown pathologists differed.

33. However, there was another sharp force injury in the left chest area a little distance below the left clavicle. That wound is the top wound shown on Exhibit “Y”. Dr Irvine was of the opinion that that stab wound did not penetrate the chest area and was not related to the blood loss. Professor Duflou raised for the first time in his evidence in chief a theory that in fact that stab wound pierced one or both of the subclavian artery and subclavian vein situated below the skin in that area. He said an injury to either of those vessels could certainly result in torrential blood loss and rapid death.

34. When this evidence was given by Professor Duflou at the trial, Mr Littlemore applied for the evidence to be struck out, and for me to inform the jury that they should disregard it. After hearing argument, I did so on the basis that the defence should not be ambushed by evidence that had not been previously notified. The Crown case had been that the wound causing death was the one identified by Dr Irvine.

35. Yet, at the sentence proceedings Mr Littlemore submitted that it was that very wound under the clavicle which in fact was responsible for Charlie’s death, that Dr Irvine was wrong in dismissing that stab wound as being irrelevant, and that Professor Duflou’s explanation was correct and was the only logical explanation for the blood loss.

36. One of the principal tasks of a sentencing judge is to find facts consistent with the jury’s verdict. It seems unusual, and certainly counter-intuitive, therefore, to be asked to find facts which the jury were expressly told to ignore.

37. However, it is not necessary to make findings about the precise mechanism that led to the blood loss that caused Charlie’s death. There is no doubt, and I find, as the forensic pathologists agree, that Charlie’s death was caused by a stab wound, which caused such blood loss that he went into cardiac arrest and died. There is no doubt that the stab wound causing the blood loss was inflicted by the offender.

Objective seriousness

38. The Crown submitted that the objective seriousness must be assessed as gravely serious and that it fell above the mid-range. The offender submitted that the offence was in the lowest possible range.

39. The attack by Charlie on the offender was entirely unprovoked and was without any justification. The offender was entitled to feel a very deep sense of grievance towards Charlie, not only because he had been seriously assaulted but also because he had been humiliated in front of his girlfriend. His initial response to tell Ms Maifala to call the police was the correct one. Why she did not do so was not explored in her evidence and remains a mystery. Why, when that was the offender’s initial response, he then engaged in self-help and vigilante justice is also difficult to understand, although it may have occurred because of his heightened state of arousal as a result of the assault upon him. While that may be an explanation, it can never be a justification for taking the law into his own hands in the way he did.

40. Once the offender managed to free himself from Charlie, he could simply have taken refuge from him in his own house and/or called the police to report the assault. While it cannot be said that the offending was planned except for the short time when the offender walked towards his house, retrieved the knife and went back to Charlie’s house, he had that time to reflect on what he ought to do. In that way, the killing cannot be said to have been a spontaneous reaction to the assault upon him.

41. Furthermore, there was a period of time when he stood outside the fence of Charlie’s house calling for him to apologise. During this time, he could have pulled back from what he ultimately did. Mrs El-Azzi was asking him to stop. She threatened, if he did not, to call the police. This threat ought to have been a sufficient reminder to him that he had asked Ms Maifala to do precisely that, and that such course was the most appropriate one. His reaction and behaviour was out of all proportion to what he had suffered in the assault, notwithstanding that he had undoubtedly been provoked by it.

42. Part of the reason for the development of the criminal law was to provide a better resolution of conflict within the community, and to obviate the need for self-help by those who have been wronged. That is why self-help cannot be condoned. Self-help often brings about a result that is out of proportion to the offence that provoked it. That was certainly the case here.

43. A matter relative to the objective seriousness of the offending is whether the offender intended to kill Charlie or to inflict grievous bodily harm upon him. The Crown submitted that the statements made by the offender before he stabbed Charlie gave a clear indication that he intended to kill him. I accept that such statements were made when the offender stood outside the front fence of Charlie’s house. However, I accept that he is likely to have been in a heightened state of arousal, as Dr Ashkar described his state at that time.

38. I cannot be satisfied beyond reasonable doubt that, merely because someone, after being beaten up in a fight, threatens to kill the aggressor, such a threat means that the offender had that literal intention. I do not doubt that he was out for vengeance, but I cannot be satisfied beyond reasonable doubt that the offender intended otherwise than to cause Charlie grievous bodily harm. The evidence tends to show that only one stab wound was inflicted, although that is not entirely clear. I cannot be satisfied beyond reasonable doubt that the offender stabbed him more than once. Had the offender intended to kill Charlie, it seems to me likely that he would have stabbed him a number of times, because there would be no certainty that one stab would be sufficient to kill.

39. While it may be accepted that murder is usually committed with a weapon, that is not necessarily so. The use of a weapon is not an element of the offence, and the use of the knife to kill Charlie by the offender must be regarded as an aggravating factor: Carr v R [2009] NSWSC 995 at [19].

40. The Crown submitted that it was an aggravating factor that the offence was committed in the presence of a child, being Charlie’s neighbour, Antara Karim. It is clear from Ms Karim’s evidence that she only heard shouting and only saw what she said was pushing and shoving on the front lawn, before she finally saw the offender jump the fence and run towards Roberts Road. She was mistaken in saying that the pushing and shoving was between the offender and Charlie – it was the offender pushing Mrs El-Azzi, but Ms Karim agreed that her eyesight was poor and that she was not wearing her glasses at the time.

41. Further, she did not see the stabbing because the plumbers’ van and a bush blocked her view. Nor did her evidence suggest that she knew at the time that there had been a stabbing. When one of the plumbers told her to call the police, she said: “so when I heard that I was in shock, like why call the police”: see the discussion in Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [53]-[55].

42. I do not consider that the offence is aggravated by the presence of a child.

43. It was submitted on behalf of the offender that his judgment and self-control were likely to have been compromised by the effects of concussion as well as his heightened state of arousal and fear. Reliance was placed on the report of Dr Ashkar, which referred to two reports by psychiatrists that were provided to Dr Ashkar but were not before the Court. The first of those psychiatrists, Dr Bruce Westmore, suggested that the offender “possibly suffered a degree of concussion from the blows to his head”. The second psychiatrist, Professor David Greenberg, similarly said that the offender “may have suffered a degree of minor concussion from the blows to the head”.

44. Dr Ashkar’s conclusion in that regard was this:

The actual impact of the concussion on his offending behaviour is unknown and speculative but may have been significant in compromising his judgment and self-control at that time … and the same is true of his heightened state of arousal and fear.

51. It should first be noted that these descriptions of concussion are in the realms of “may be”, “possibility” and speculation. The offender did not give evidence at the trial or at the sentence hearing, and the only description of what he was feeling at the time was given to Dr Ashkar in these terms:

Mr Yavuz felt like he was going to pass out at this point, but he did not lose consciousness (and he reported what appeared to be continuous memory for the events that followed). The deceased threw him against a Colorbond fence and continued to punch him. Mr Yavuz began to feel numbness in his face, to see spots in his visual field, to be blinded in his left eye, and to become unstable on his feet. He told me he felt scared and confused at that time. He recalled stumbling backwards from the deceased…

52. In his summary Dr Askkar said this:

He described cardinal symptoms of concussion (e.g. balance problems, dizziness, fogginess and visual disturbance) during the attack and in the minutes that followed. Given the repeated blows he sustained to his head, there is little doubt that he was concussed when he committed the offence.

However, Dr Ashkar then went on to say that the actual impact of the concussion on his offending behaviour was unknown and speculative. Neither of the psychiatrists related any concussion to the offender’s subsequent behaviour. I cannot infer a causal connection. That is a matter for expert opinion based on evidence given by the offender.

53. In the light of all of this material and in the absence of evidence from the offender, I cannot be satisfied on the balance of probabilities that the behaviour exhibited by the offender after the conclusion of the assault upon him was brought about by his being concussed. I am, however, satisfied on the balance of probabilities, that he was in a heightened state of arousal as a result of what happened. Nevertheless, he had the time and opportunity to consider what course of action he should follow. It is apparent from a reading of Dr Ashkar’s report that the course the offender decided to follow was one of vengeance. He sought to avenge the assault upon him and, as he told Dr Ashkar although there was no other evidence of it at the trial, he believed Charlie had stolen a chain from around his neck, and the offender wished to retrieve it.

54. The Crown submitted that the offence was aggravated by being committed on the front steps of the home where Charlie lived. It was submitted on behalf of the offender that it was not so much Charlie’s home as a type of prison, in that it was the place he was required to live as a condition of bail imposed for committing an offence similar to the assault on the offender. It was also submitted that the incident did not take place inside the dwelling. I do not consider that either of those matters detracts from the fact that Charlie was killed in a property where he was residing with his mother and which was his home at the time even if he was required to live there as a condition of bail.

55. The point about the aggravation of an offence occurring in the home of the victim is that the person is entitled to feel safe in that place. That feeling of safety is not confined to the rooms of the house but is equally applicable to the property as a whole and, certainly in the present case, to the front steps on which Charlie was sitting. The feeling of safety is justified because a person coming wrongfully onto the property will be a trespasser. Nothing in Jonson v R [2016] NSWCCA 286 suggests that the aggravation is confined to the house, and not to the home constituted by the whole of the property.

56. In my opinion the offence was aggravated by having been committed at Charlie’s home.

57. In all of the circumstances, particularly the provocation and my conclusion that the intention was to inflict grievous bodiIy harm but not kill, I consider that the offending is low in the mid-range of objective seriousness.

Subjective factors

58. The offender was born on 21 March 1981. At the time of the offending he was aged 34, and he is now aged 37, almost 38.

59. As mentioned, the offender did not give evidence at the sentence proceedings. Details concerning his subjective features derive principally from the report of Dr Ashkar and from the Sentencing Assessment Report.

60. The offender was born in Turkey, and he migrated to Australia with his family when he was seven or eight years old. He described a happy and stable childhood, free from childhood trauma and abuse. He is close to his younger sister and his parents. There is an older brother who is estranged from the family.

61. Whilst at high school he endured several years of racially motivated bullying, which resulted in his changing schools in year ten. He left school after obtaining his Higher School Certificate. He has worked in a variety of jobs, predominantly retail positions. At the time of the offending he was writing and selling music, and operating an online business.

62. He has been with his current partner, Ms Maifala, for seven or eight years prior to his arrest. Ms Maifala has remained committed to the relationship, and visits him weekly. Apart from a head injury sustained when he was six or seven years of age, from which there appears to be no residual disability, his medical history, both physical and mental, was unremarkable.

63. On neuropsychological testing his intellectual and cognitive functioning was generally average. In relation to personality, Dr Ashkar found him to be psychologically well adjusted. Dr Ashkar did not think he was inherently antisocial although Dr Ashkar was aware of a prior conviction for assault occasioning actual bodily harm.

64. That offence involved a gardener who had parked his motor vehicle across the offender’s driveway. On the account given to Dr Ashkar, the offender punched the gardener once to the face when the gardener hit him with a leaf blower after an argument. In the police statement of facts there is no suggestion of any assault on the offender by the gardener. The police facts say that the offender punched the gardener on two occasions with a closed fist to the head. The assault lasted for about ten or 15 seconds and the gardener fell to the ground. The gardener suffered a bruised right eye, swollen nose, left ear pain, left side rib pain, and felt dizzy. The offender was placed on a s 9 bond for 18 months and fined $750. Although the offender told Dr Ashkar that he was “a young kid” at the time, he was in fact aged 24 years.

65. While that prior offending does not aggravate the present offence, the circumstances of that offending and that conviction do not entitle him to any leniency.

66. His family and friends in their references speak highly of his character, his kindness and consideration for others, particularly the less fortunate.

Remorse and contrition

67. Mr Littlemore submitted that in the light of the approach taken by Dr Irvine in her post mortem report and in her evidence at the first trial, it was not unreasonable for the offender, who had already offered to plead guilty to manslaughter, to put the prosecution to proof of the charge of murder. That was because he was legitimately confused about whether he had been responsible for Charlie’s death when he had only inflicted the wound that Dr Irvine said was not the cause of death. In that way, Mr Littlemore submitted, his plea of not guilty to murder should not been seen as a lack of remorse.

68. There are some difficulties with the submissions made on behalf of the offender flowing from Dr Irvine’s opinion, but it is not necessary to consider that matter further. I would not, in the circumstances, find any lack of remorse by the plea of not guilty. My greater concern is what the offender said to Dr Ashkar and to the author of the Sentence Assessment Report, Vanessa Gregg, after he was convicted of murder, and the absence of sworn evidence from the offender at the sentence hearing.

69. Ms Gregg records the following under the heading “Attitudes” related to the offending:

•   Upon reflection of the current offence, Mr Yavuz reiterated that his offending behaviour was unintentional and that the consequences were unanticipated.

•   Mr Yavuz appeared to attribute his behaviour to his fixation on retrieving his neck chain, in tandem with an apology, from the victim.

•   Mr Yavuz did not offer any insight into his behaviour preceding the offence, namely his aggression and possession of a knife at the time, and he maintained that he considered the offending to have occurred unforeseeably.

70. In his interview with Dr Ashkar, the offender told Dr Ashkar that his thinking after he returned home was that he had been beaten up and his neck chain stolen, and that he had the right to get his neck chain back. He said that he took the knife for protection and went on to say:

I didn’t want to get beaten up again … I took the knife to protect myself … I thought he’ll see … he won’t come near me … I didn’t want to hurt anyone but I was scared for my own safety… .

71. He told Dr Ashkar that when he stood outside the front fence of Charlie’s place, all he was thinking about was the chain. He called for the deceased to come out of the house, to give him his chain back and to apologise. He denied to Dr Ashkar pushing Mrs El-Azzi or threatening Charlie.

72. Dr Ashkar then recorded what Mr Yavuz told him about the stabbing as follows:

9.   … Mr Yavuz repeated his request for the chain and the deceased continued to ignore him. Mr Yavuz climbed the fence and approached the deceased to get his attention: "To get closer because he was ignoring me... I thought I'll ask for my chain... He'll say here is your chain, get out of here, piss off.” As he approached the front steps of the house, the deceased moved towards him and went to punch him. Mr Yavuz raised his arms to protect himself from the punch. He maintains that he inadvertently stabbed the deceased with the knife at that time (he told me once, just below the shoulder): "I didn't mean to stab him... It happened very quickly". He told me the deceased pulled the knife from his body and threw it onto the ground. He picked up the knife instinctively without knowing why (but suspects he did so because he was panicked and scared) and handed his shirt to the deceased to cover the wound: "I told him to put it on the wound".

10.   Mr Yavuz was clear that he did not intend to stab or kill the deceased. …

73. There are a number of difficulties with that account. First, the offender did not give evidence about the events he described either at the trial or at the sentence proceedings. Secondly, what is described in that account is completely inconsistent with the accounts given by the witnesses at the trial. Thirdly, that account, along with what the offender told Ms Gregg, indicates that the offender does not accept responsibility for other than an accidental stabbing of the deceased.

74. It may be accepted that he is remorseful that Charlie was stabbed but the remorse is not associated with an acceptance by him that he deliberately stabbed Charlie in anger and probably in vengeance for what had happened to him. I accept entirely that the offender was provoked by what Charlie did to him and that that provocation was operating on his mind at the time the offender stabbed Charlie. This account by the offender, however, does not accept responsibility other than for accidental wrongdoing which had been brought about by the offender acting foolishly.

75. Mr Littlemore submitted that this account showed that the offender felt boxed into a corner, and in that way he did not do justice to himself in terms of accepting what had happened and his remorse for it. In that way he was unwilling to face the enormity of what he had done. Mr Littlemore urged, for that reason, that there should be humanity involved in the Court’s judgment.

76. Even accepting Mr Littlemore’s explanation for the offender’s approach to what he did, I cannot find that there is proper remorse and contrition when he does not appear to accept responsibility for what he actually did. The accounts given to Dr Ashkar and to Ms Gregg certainly do not amount to the remorse that is referred to in s 21A(3)(i) of the Sentencing Act. Nor is the matter assisted by the letter the offender wrote to the Court where, in saying that he was truly sorry for what happened, he said that he “never had any intention of hurting Charlie in any way”. That seems to me to be a persistence of the statements made to Ms Gregg and Dr Ashkar that Charlie’s death was a very unfortunate accident.

Rehabilitation and re-offending

77. Both Ms Gregg and Dr Ashkar considered that the offender was at a low risk of re-offending. I accept that assessment. I also find on the basis of those reports that the offender has good prospects of rehabilitation, subject only to his acceptance of the full extent of his conduct that led to Charlie’s death.

Deterrence

78. General deterrence is of some significance in the matter. It must be made clear that self-help for wrongs done to a person will not be condoned. The self-help in this case led to the most serious of offences being committed with the result that a person, although having wrongly engaged in a serious assault on the offender, lost his life.

79. In the light of what appears in the Sentence Assessment Report and Dr Ashkar’s report, I do not consider that specific deterrence is entitled to any particular weight. There is a very low risk of the offender reoffending.

Victim Impact Statement

80. A Victim Impact Statement was prepared on behalf of Charlie’s father Jean Azzi, by his brother-in-law Michael and read by Michael’s nephew Andrew. It is apparent from that statement that Charlie’s family, not surprisingly, has been devastated by his death, and his father has been particularly affected.

81. It was also apparent to me that, despite her stoicism in the witness box, Charlie’s mother, Myrna, was badly affected by her son’s death, which she had the added misfortune of witnessing after trying to prevent it from happening.

82. The Court extends again to Jean Azzi, Myrna El-Azzi and all the members of Charlie’s family its sympathy for Charlie’s death.

Special circumstances

83. Mr Littlemore submitted that the provocation brought about by Charlie’s brutal attack on the offender, together with what he described as the Damoclean threat hanging over the offender for three years on remand, and the fact that it is the offender’s first time in custody, justify a finding of special circumstances. I do not agree. I have taken into account provocation as a mitigating factor in fixing the sentence. The threat that was hanging over the offender was simply that he might be found guilty of the murder. That threat is there in all cases of persons charged.

84. While it was most unsatisfactory that the offender was held on remand for three years, both the Crown and the Defence were partly responsible for that delay. In any event, the offender’s time on remand will count as part of his sentence. There was no evidence to suggest that being in custody on remand for murder was more onerous than being a classified prisoner, although few if any courses are available to a remand prisoner. I do not consider that the time on remand, whether considered with other matters or alone, amounts to special circumstances.

85. The authorities are clear that the fact that it is a person’s first time in custody is not, by itself, sufficient to amount to special circumstances. In the sentence to be imposed, I consider that the non-parole period to be imposed is the minimum time which the offender should serve. To the extent that matters of rehabilitation and re-integration into the community are to be considered, the period of time the offender will be on parole will be more than sufficient to deal with those matters.

Sentence

86. I was not taken to any cases which might be regarded as comparable by either counsel. My own research has identified a number of cases to which I have had regard. Those cases include R v Towney (No. 2) [2016] NSWSC 97 (including the cases discussed therein); R v Ronald Shiels [2011] NSWSC 1177; Beldon v R [2012] NSWCCA 194; JB v R [2012] NSWCCA 12, Carr v R [2009] NSWSC 995 and R v Do (No. 4) [2015] NSWSC 512. I note, in particular, that two significant differences in a number of those cases were that the offenders had serious upbringing, mental health and/or drug issues and, on the other hand, a number of them had lengthy criminal records with the index offence being committed whilst they were on conditional liberty. Nevertheless, those cases provided a useful range of sentences.

87. The offender has been in custody since 13 November 2015 and the sentence will commence on that date.

88. The offender has also been charged with a related offence, being assault of Mrs El-Azzi, which is to be dealt with on a s 166 Certificate. I am satisfied beyond reasonable doubt from the evidence of Mr Elmrabt and Mrs El-Azzi that the offender assaulted Mrs El-Azzi by pushing her to the ground. I find him guilty of assault in that regard, but in the circumstances that he is to be sentenced for Charlie’s murder, no purpose is served by imposing any penalty for that assault, and I dismiss the charge pursuant to s 10 of the Sentencing Act.

86. John Can Yavuz. I convict you of the murder of Charlie El-Azzi. I sentence you 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.

87. I am obliged to warn you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).

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Decision last updated: 15 February 2019