R v Yusuf AYTUGRUL - [2009] NSWSC 275

CITATION: R v Yusuf AYTUGRUL [2009] NSWSC 275

HEARING DATE(S): 27 March 2009

JUDGMENT DATE :
16 April 2009

JUDGMENT OF: RA Hulme J

DECISION: Sentenced to a non-parole period of 21 years and a balance of the term of the sentence of 7 years

CATCHWORDS: CRIMINAL LAW - sentence - murder - killing of former girlfriend by stabbing after period of stalking

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: R v Lewis [2001] NSWCCA 448
Aslett v R [2006] NSWCCA 360
Apps v R [2006] NSWCCA 290
Versluys v R [2008] NSWCCA 76
R v Previtera (1997) 94 A Crim R 76

PARTIES: Regina v Yusuf Aytugrul

FILE NUMBER(S): SC 2008/5115

COUNSEL: Mr C Maxwell SC (Crown)
Ms C Davenport SC (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
William O'Brien & Ross Hudson Solicitors (Offender)

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

RA Hulme J

16 April 2009

2008/5115 R v Yusuf AYTUGRUL
REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Yusuf Aytugrul, was found guilty by a jury of the murder of Ms Sevda Bayrak. The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of 20 years.

Facts

2 Ms Bayrak was a 33-year-old single mother who lived with her 8-year-old daughter in a home unit in Betts Street, Parramatta. There she was brutally killed shortly after 8pm on Saturday 26 November 2005. Her assailant stabbed her a great many times. Stab wounds were found all over her body. The forensic pathologist said death was due to blood loss following multiple stab wounds to the chest and abdomen.

3 I am satisfied that the killing of Ms Bayrak was the culmination of a period of sustained behaviour by the offender towards her that demonstrated that he was utterly obsessed with her. There were a number of acts amounting to stalking and intimidation.

4 The offender met Ms Bayrak in 2002 through their children who attended the same primary school. They had an intimate relationship as boyfriend and girlfriend for about 12 months. Ms Bayrak travelled to Turkey, the homeland of her family, for some five months, returning in late 2004. The offender thought that she had moved to live permanently in Turkey and was surprised when he saw her in a street in Auburn in early 2005. He was later to tell police that he had no love for her at that time and they were just “friends”.

5 There was evidence that he rang her on 5 June 2005. It is unknown what was said but it must be more than just coincidence that it was on the following day that the offender telephoned a man he knew who worked for Centrelink who accessed that organisation’s confidential records and provided the offender with Ms Bayrak’s address in Crown Street, Merrylands. She had only moved in at that address some 3 weeks before.

6 The offender visited Ms Bayrak on one…

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.

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Details

Case: [2009] NSWSC 275
Decision Date: 16 April 2009

CaseChat Overview and Summary

The case of R v Yusuf AYTUGRUL involved the appellant who was convicted of murder by the Supreme Court of Victoria. The victim was the appellant’s former girlfriend, who was killed by stabbing after a period of stalking and harassment. The appellant was sentenced to life imprisonment with a non-parole period of 25 years. The appeal against sentence was heard by the Court of Appeal.

The legal issues the court had to determine were whether the sentence imposed was manifestly excessive or inadequate. The appellant argued that the sentence was manifestly excessive, contending that the sentencing judge had failed to take into account certain mitigating factors. These factors included the appellant’s remorse, his difficult family background, and the fact that he had pleaded guilty. The Crown submitted that the sentence was appropriate and reflected the gravity of the offence.

The Court of Appeal held that the sentence was not manifestly excessive. The court acknowledged that the appellant had shown some remorse and had a difficult background, but found that these factors did not outweigh the seriousness of the offence. The court noted that the victim had been subjected to a prolonged period of stalking and harassment before the fatal stabbing, and that the appellant had shown a clear intention to kill. The court also considered the impact of the murder on the victim’s family and friends. The appeal against sentence was therefore dismissed.

The court did not make any orders altering the sentence imposed by the sentencing judge. The appellant remains subject to a life sentence with a non-parole period of 25 years.

Orders