Regina v Cakovski

[2002] NSWSC 1252

Reported Decision: 141 A Crim R 446

New South Wales

Supreme Court

CITATION:	Regina v Cakovski [2002] NSWSC 1252
FILE NUMBER(S):	SC 70022/02
HEARING DATE(S):	6.9.02, 25.10.02, 17.12.02, 8.1.03
JUDGMENT DATE:	8 January 2003
PARTIES :	Regina v Daniel Cakovski
JUDGMENT OF:	O'Keefe J

COUNSEL :	Mr Paul Lynch - Crown Mr W Terracini SC/Mr R Pontello - Accused
SOLICITORS:	Julian Schimmel - DPP Sydney - Crown Albert A Macri Partners, Liverpool - Accused
CATCHWORDS:	Sentence - Murder - Stabbing - Multiple wounds - 19 year old offender - No actual intention to kill - Killing in course of armed robbery - Killing in public place - Victim a stranger - Objective seriousness of crime - General deterrence - Remorse - Contrition - Rehabilitation - Totality - Special circumstances - Credits to be given.
LEGISLATION CITED:	Crimes Act 1900, s 19A Crimes (Sentencing Procedure) Act 1999, ss 21(1), (2); 21A(1), (2); 24A Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (No 90, 2002), s3 Listening Devices Act 1984 Children's Criminal Proceedings Act 1987, ss 15(3), 33
CASES CITED:	Regina v Storey (1997) 89 A Crim R 519 Regina v Isaacs (1997) 90 A Crim R 587 at 592 Savvas v The Queen (1995) 183 CLR 1 Regina v D.A.R (NSWCCA, 8 November 1995, unreported) Regina v Bell (NSWCCA 29 September 1997, unreported) Regina v Watt (NSWCCA 2 April 1997, unreported) Boyle (1987) 34 A Crim R 202 Wirth (1976) SASR 291 T (1989) 47 A Crim R 29 Tilley (1991) 53 A Crim R 1 GDP (1991) 53 A Crim R 112 Wilcox (NSWSC, 15 August 1979, unreported) Bellavia (NSWSC, 16 August 1980, unreported) Webster (NSWCCA, 15 July 1991, unreported) Pham and Ly (1991) 55 A Crim R 128 Verney (NSWCCA, 23 March 1993, unreported) HAS (NSWCCA, 13 August 1998, unreported) Mihilovic & ors (NSWSC, 15 April 1991, unreported) Hearne (2001) 124 A Crim R 451 Moore v Fingleton (1972) 3 SASR 164 Mill v The Queen (1986) 166 CLR 59 at 62-66 Todd (1982) 2 NSWLR 517
DECISION:	Sentenced to imprisonment for a term commencing on 14 December 2003 and ending on 23 December 2020 with a non-parole period commencing on 14 December 2003 and ending on 23 September 2014, on which date the prisoner will become eligible for parole.

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O’Keefe J

8 January 2003

70022/02 REGINA v CAKOVSKI


REMARKS ON SENTENCE

BACKGROUND

1 On 3 July 2002 a jury convicted Daniel Cakovski (the prisoner) of having murdered Eugene Petroff (the deceased) at Strathfield on 20 May 2001. At the material time the prisoner was 19 years old; the deceased 53 years old.

2 The events which resulted in the death of the deceased took place between 5am and 5.30am with death ensuing a short time later some time later as a result of the infliction by the prisoner of four stab wounds in the chest of the deceased; three to the left of the sternum, one to the right, but all fairly central. The knife with which the wounds were inflicted had a blade that was a little over 10cm in length. Two of the wounds to the deceased’s chest were deep; one a little deeper than the blade of the knife, namely 12cm. This was due to compression, which indicated that such blow had been inflicted with some force. One of the wounds penetrated through the deceased’s heart and was of such a nature that, even taken alone, would have been likely to cause his death due to loss of blood. The actual cause of death of the deceased was determined to be loss of blood due to the combined effect of the various chest wounds inflicted by the prisoner.

3 There were also knife wounds to the face and hand of the deceased. The court is not able to determine the exact order in which the various knife wounds were inflicted, however, the prisoner said that the wound to the face of the deceased was the last one inflicted by him. Such wound was consistent with a slash that could be caused by a knife being swung in front of the deceased at the time it came in contact with his face.

4 There was no issue before the jury as to the fact that the prisoner had stabbed and killed the deceased, nor that the acts causing his death were deliberate acts on the part of the prisoner. The issue presented by counsel for the accused was in essence self defence. Counsel who represented the prisoner at the trial declined on a number of occasions to address on the question of provocation. However, following argument, the issue of provocation was left to the jury together with the issue of self defence. The jury found against the prisoner on both these issues.

5 Following his conviction the prisoner was remanded in custody so that appropriate psychological, psychiatric and other reports could be obtained. There was some delay in this regard as a result of an administrative error within the Department of Corrective Services. In addition, for a reason which is unknown to the court there was delay in the preparation of a pre-sentence report by the Probation and Parole Service. Such report was not prepared until 29 November 2002 and the sentence hearing was not able to be completed until 17 December 2002.

THE ONUS AND STANDARD OF PROOF

6 Before imposing a sentence on the prisoner for the murder for which he has been convicted, it is necessary for the court to find the facts relative to the crime and other matters relevant to the severity of the sentence to be imposed, including matters that may mitigate the severity of such sentence. Such findings of fact must be consistent with the verdict of the jury in the light of the issues raised in the case.

7 The decision of the court on sentence is an important matter for a prisoner. It has been said that in some instances it is no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof in a sentencing hearing is the same in relation to matters adverse to the prisoner as it is in a trial, namely proof beyond reasonable doubt. This standard applies to disputed facts not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said:

“The judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.” (at 530)

8 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration. As was said in Regina v Storey (supra):

“’Aggravating’ and ‘mitigating’ must be understood in a wide sense and without, eg, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (eg, the use of a weapon) or on the other hand of a prior or subsequent conviction.
The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice.”

and:

“We have spoken of disputed ’facts’ … there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard – not each of the individual facts which is said to bear upon the issue.” (supra at 531 – 532)

9 The law of New South Wales accords with these statements. (Regina v Isaacs (1997) 90 A Crim R 587 at 592.)

10 In determining the facts on which the sentence is to be imposed upon the prisoner in this case (Savvas v The Queen (1995) 183 CLR 1) I have applied the law as set out above in the light of the verdict of the jury.

STATUTORY MATTERS

11 The penalty provided for murder in s 19A(1) of the Crimes Act 1900 is imprisonment for life. However, the Court is empowered to impose a lesser term in respect of such offence (Crimes (Sentencing Procedure) Act 1999, s 21(1), (2)).

12 The objective seriousness of the crime committed is a material consideration to be taken into account in determining the appropriate sentence. So too are considerations of retribution, deterrence, remorse or contrition, rehabilitation and the youth of the prisoner. Senior counsel for the prisoner has submitted that regard should be had to the total criminality involved in the events in which the prisoner was involved in the early morning in question and consequently to the imposing of a sentence that is concurrent, at least in part, with a sentence being served by the prisoner for another offence committed by him a short time after the murder of the deceased.

13 The Crimes (Sentencing Procedure) Act 1999 (the Act) makes provision for regard to be had to a number of considerations. The primary obligation of the Court is to impose a sentence that is appropriate to all the circumstances of the case. (s 21A(1)). For that purpose the Court must take into account the matters specified in s 21A(2) of the Act. Those specified in s 21A(2)(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) are material to the present matter. The provisions of s 23(1) of the Act are not relevant since, on the evidence before me, the prisoner did not assist the authorities in relation to the prevention, detection or investigation of the offence in question or any other offence.

14 In addition, in imposing a sentence the Court must take into account any time which the offender has spent in custody in relation to the particular offence (s 24(a)). In the present case the prisoner was arrested on 21 May 2001 and charged with another offence, namely being armed with intent to commit an indictable offence. He remained in custody on such charge until 7 June 2001, on which date he was granted bail on condition that he entered into the Westside Mission Rehabilitation Program. Whilst on bail at the premises of the Westside Mission, a conversation between him and a female who had accompanied him at the time he killed the deceased was intercepted and recorded by an authorised listening device. As a result the prisoner was arrested on 22 June 2001 and charged with the murder of the deceased. He remained in custody in respect of that charge until he was sentenced to imprisonment for three months terminating on 13 November 2002 in respect of certain outstanding warrants unconnected with the charge of murder. On 9 December 2002 the prisoner was found guilty by a District Court jury at Parramatta of being armed with intent to commit an indictable offence and on 10 December 2002 was sentenced to imprisonment for two years with a non-parole period of 18 months, such sentence and non-parole period to commence on 14 December 2002.

15 The age and antecedents of the prisoner are relevant considerations. So too is the effect of the offence on the victim. The prisoner was born on 30 December 1981, and so was 19 years and five months at the time of the murder. The deceased was 53 years old at the time of his death and does not appear to have any known family in Australia.

16 The amendments effected to the Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (No 90, 2002) do not apply in the present case in view of the provisions of s 3 of such Act which expressly provide that such amendments do not apply to offences committed before the commencement of such amendments.

The Facts

17 Somewhere between 8pm and 9pm on 19 May 2001, the prisoner and a female companion, Ms Sekulovska, met at the Bankstown RSL Club (the Club). This meeting was as a result of a telephone call from Ms Sekulovska in which she said she was concerned for her safety and had gone to the Club for protection. In the course of this conversation she said she was scared that if she left the Club people, whom she said had chased her, might try to grab her. Although it was suggested by the prisoner that Ms Sekulovska said that she had been the subject of an attempted rape, the evidence on this is far from clear and I am not able to make a firm finding in relation to that.

18 When the prisoner and Ms Sekulovska met at the Club he did not, according to the observation of Ms Sekulovska, appear to have a knife on him but at some stage later in the evening she became aware that he had a knife concealed on his person. The precise time when she became aware that the prisoner had a knife in his possession is not clear, however the prisoner undoubtedly had the knife in his possession immediately before and at the time of the murder.

19 The prisoner and Ms Sekulovska left the Club in Ms Sekulovska’s car shortly after 9pm. Each of them took a quantity of drugs, namely valium and rohypnol. These were taken in the car just after leaving the Club and whilst Ms Sekulovska was driving the car. The prisoner took about five valium tablets and two rohypnol tablets. They then drove to Kings Cross.

20 When they arrived at Kings Cross, they parked in one of the back streets and the prisoner gave Ms Sekulovska approximately $60 towards the cost of a quantity of heroin that she then purchased.

21 At about 10.30pm, both the prisoner and Ms Sekulovska injected themselves with half of the heroin that had been purchased. The couple then left Kings Cross in the car and the prisoner fell asleep. What happened between that time and 2am on 20 May 2001 is not clear. However, at some time after 10.30pm and before 2am the prisoner took over the driving of the vehicle and drove to Stanmore where, at about 2am, he was pulled over by police for driving the wrong way down a one-way street.

22 The prisoner gave a name to the police which was later discovered to be false. Unfortunately for the prisoner the person whose name he gave to the police proved to be a person who was not licensed to drive a motor vehicle in New South Wales. As a result, the prisoner was arrested, searched and placed in the back of the police patrol wagon. The search that was made of the prisoner was detailed and extended from the top of his body down to and including the areas of his legs and feet. Neither a wallet nor a knife was found on his person. I am satisfied beyond reasonable doubt that at the time of the search there were, as Constable Venables the searching officer said: “(n)o items on his person.” Furthermore, I am also satisfied that at that time when stopped and searched by police at Stanmore, the prisoner was not obviously affected by drugs, although their effects on him are likely to have been present to some degree.

23 The vehicle in which the prisoner and Ms Sekulovska were travelling was driven to Strathfield, arriving at approximately 5am. It is unclear from the evidence what happened between the time the prisoner was released from police custody following his arrest at Stanmore and his arrival in the vicinity of Strathfield station, near which the murder occurred. However by the time the two arrived at Strathfield Ms Sekulovska was driving the car.

24 The car was parked in a street in which there was a Seven Eleven all-night convenience store. However, it was not parked directly outside the store, rather it was parked a little way up the street. At different times Ms Sekulovska and the prisoner went into the store. When Ms Sekulovska went into the Seven Eleven convenience store she saw the deceased, struck up a conversation with him and shortly thereafter informed the prisoner of her observation. By that time it was, on the evidence of both the prisoner and Ms Sekulovska, between three and four hours since either of them had taken any drugs.

25 When the prisoner and Ms Sekulovska arrived at Strathfield they had little money left, but were anxious to obtain more drugs. This required money, and in order to gain such money, the prisoner was, as his counsel submitted more than once, “literally prepared to do almost, or indeed, anything to satisfy his drug dependency.” In order to do so I am satisfied to the requisite standard that an arrangement was made between the prisoner and Ms Sekulovska that she would lure the deceased away from the Seven Eleven convenience store to a place which was not as well lit and where the deceased could be relieved of his money by the prisoner.

26 In order to do this, it was necessary that there should be some inducement held out to the deceased by Ms Sekulovska, who presented as a physically attractive young woman.

27 I am satisfied that she drew the deceased into a nearby side street, but I am also satisfied that, whatever may have been the inducement by Ms Sekulovska to the deceased, no significant sexual contact had taken place or was in course between Ms Sekulovska and the deceased by or at the time the prisoner came upon them. I accept the evidence given in this regard by Ms Sekulovska when she emphatically, and I believe truthfully, denied that she had actually engaged in oral sex with the deceased.

28 When the prisoner came upon the scene he already had a knife in his hand. This knife had not been on his person at 2am, and I am unable to make an affirmative finding as to where it came from. However I am satisfied that the prisoner used the knife with a view to causing the deceased to give over his money. That was the object of the arrangement that had been made between the prisoner and Ms Sekulovska.

29 The deceased was not prepared to give the prisoner his money. The prisoner became angry and struck the deceased several times with the knife. Four wounds were inflicted into the deceased’s chest – one of which punctured his right lung, another of which entered the right side of his heart, and exited through the back of the heart. The deceased attempted to defend himself and may have kicked out at the prisoner in the course of doing so. Defensive wounds were found on the right hand of the deceased, including a wound to the palm suggesting that the deceased had attempted to grasp the blade of the knife. The wounds to the deceased’s chest were “major wounds,” and according to Doctor Cala, the forensic pathologist called in the Crown case:

“The amount of force used … would probably be moderate or could be moderate or could be also severe, but I think that at the very least it is a moderate amount of force.”

30 The chest wounds sustained by the deceased, and in particular the wounds to his lung and heart were described by Dr Cala as “extremely significant”. The wound to the heart caused very rapid blood loss into the chest cavity and death resulted from loss of blood. The four wounds to the deceased’s chest were such that it is unlikely that he would have been able to remain standing “for much longer than about 30 to 45 seconds” after they had been inflicted.

31 The prisoner and Ms Sekulovska decamped, leaving the deceased on the footpath, where he was found at approximately 5.45am. An ambulance was called, treatment was given and he was conveyed to hospital, however he was formally pronounced dead at approximately 8.15am.

32 The post mortem examination revealed that the blood alcohol level of the deceased at about 5.00-5.30am would have been about 0.15 mls of alcohol per 100 millilitres of blood. Such an amount would have been sufficient to have adversely affected his judgment.

33 Significantly, the stab wounds to the chest of the deceased were all in or about some 138 cm above the left heel, were from the left to the right and “approximately at the horizontal”. Such wounds are inconsistent with a mere waving of the knife in front of the deceased in the way in which the prisoner claimed in his evidence to have done. They unequivocally demonstrate blows by the prisoner into the chest of the deceased with some degree of force. They are to be contrasted with the slash wound to the deceased’s face and the wounds to his hand. The position and angle of entry of the chest wounds are also inconsistent with the evidence of the prisoner that when he merely “swung the knife” he was “on the ground” and later, when he swung the knife yet again, that he was on his knees.

34 Although the prisoner denied any recall of having stabbed the deceased, his denial is inconsistent with the account given by him to Ms Sekulovska at the Westside Rehabilitation Mission on 22 June 2001. His account regarding the circumstances of the murder was recorded by a listening device that the police had obtained under the Listening Devices Act 1984. The recording contains the following:

“Prisoner: … I’m the one that killed the poor cunt.
Sekulovska: Did you mean to?
Prisoner: Nah, yeah, I did, nah, I didn’t probably.
…
Prisoner: When I think about it, I spin out. I think to myself, fuck I’m a murderer, a killer, I’m a murderer. That’s fucked.
Sekulovska: Just things went wrong, that’s all.
Prisoner: Well, it was his fuckin fault … it was his fuckin …
Sekulovska: Fuckin arsehole tried to kick you.
Prisoner: I’ve still got the scars on my legs.
Sekulovska: Are you serious?
Prisoner: From kicking.
Sekulovska: Was it that bad?
Prisoner: Umm umm all there.
Sekulovska: … shin, babe.
Prisoner: All there, look all there. They’re all from that son of a bitch, and he laughed at me. He goes the knife, the knife isn’t even sharp and he laughed at me.
Sekulovska: Are you serious?
Prisoner: And I went ‘yeah’ and I go whack whack, and I stabbed him like about six times.
Sekulovska: It says that he was stabbed in the face and chest.
Prisoner: No, I slashed his face from there open.
…
Prisoner: And when I think about it man, I shouldn’t have shanked him. I shouldn’t have stabbed the poor cunt.”
...”

35 I do not accept the evidence of the prisoner in relation to the circumstances preceding and at the time of the murder. Like the jury, I reject that the acts of the prisoner in killing the deceased were done in self defence or were within the ambit of provocation. The murder occurred in the course of a planned robbery in which a knife was used. The prisoner had the knife in his hand at the material times. It was intended as a weapon with which to threaten the deceased so that he would more readily give over his money to the prisoner. When the threats did not achieve this objective it was used more forcefully and that resulted in the death of the deceased.

PRIOR CRIMINAL HISTORY OF THE PRISONER

36 The criminal history of the prisoner prior to the date of the present offence was minor and consisted of a conviction in the Children’s Court in early 1998 for maliciously destroying or damaging property and a conviction in July 2000 for being carried a conveyance taken without the consent of the owner. It would not be appropriate, in my opinion, to have regard to either of these offences in considering the penalty to be imposed on the prisoner in respect of the offence for which he is now to be sentenced and I do not take either of such offences into account.

37 Following a trial in the District Court which commenced on 4 December 2002, the prisoner was convicted by a jury on 9 December 2002 of being armed with intent to commit an indictable offence on 20 May 2001. On 10 December 2002 he was sentenced to imprisonment for two years with a non-parole period of 18 months, with both sentence and non-parole period to commence on 14 December 2002. Senior counsel for the prisoner adverted to this conviction and submitted that it should be considered under the principle of totality as part of the criminality in which the prisoner was engaged on 20 May 2001. I shall deal with this conviction and the submission relating to it later.

38 The Remarks On Sentence of the District Court Judge had not been transcribed by the last date of the sentence hearing in this matter. However, by consent, a note made by the solicitor instructing the Crown Prosecutor in such matter was tendered. From that note it emerges that the offence for which the prisoner was then sentenced was committed at about 8am on 20 May 2001 at a newsagency at Condell Park, some eight or nine kilometres from the scene of the murder at Strathfield. It appears that the prisoner, in company with Ms Sekulovska and another male, went to the home of such male where he obtained a knife and a pole. It is not apparent why this should have been necessary in view of the fact that the prisoner still had the knife that had been used to stab the deceased. The prisoner also procured some tape from a florist for the purpose of altering or masking the appearance of the number plate of the vehicle in which the three were travelling. The number plate of such vehicle was obscured with newspaper and the vehicle was then driven to the vicinity of the Condell Park newsagency. The male third person in the group had become alarmed and had called the police when the trio stopped at the florist to procure the masking tape. As a result the police were at the scene at Condell Park when the prisoner and his friends arrived. The prisoner was arrested and no robbery in fact occurred.

39 The District Court judge was of the view that the offence was impulsive and opportunistic and, although there was some planning, it was relatively ineffectual and as a result of the actions of the third person no robbery was effected and no one was threatened or injured. The judge nevertheless described the offence as “serious” but “less serious than armed robbery or robbery in company”. He characterised both the offence and record of the prisoner as typical of a young drug-using male, but recorded that the police had noted that after the offence at Condell Park the prisoner was not affected by drugs. Significantly, the trial judge found that the prisoner “had exhibited no contrition”.

STATISTICS

40 The statistics produced by the Judicial Commission of New South Wales for the period from January 1995 show that all persons who have been convicted of murder have had sentences of imprisonment imposed on them. Seventy-five percent of the sentences imposed for murder on persons under 21 years of age fall between 14 years and more than 20 years, with 56% being between 16 and 20 years. The statistics further show that for prisoners under the age of 21 who have been convicted of murder the majority (57%) of the minimum terms fall between 12 and 16 years.

41 When considering statistics it is necessary to bear in mind that there is no material available to the court in relation to the circumstances in which the individual sentences from which the statistics were compiled were imposed. However, the statistics are useful in that they give some indication of the spectrum of sentences imposed.

OBJECTIVE SERIOUSNESS OF CRIME

42 The verdict of the jury rejected the alternatives of acquittal and manslaughter that were open to them. It is inconsistent with the jury’s verdict that the prisoner’s conduct in stabbing the deceased was done in self defence. The conversation recorded at the Westside Rehabilitation Mission on 22 June 2001 (see paragraph 34 above) between the prisoner and Ms Sekulovska is very significant in that regard.

43 It strongly supports the conclusion to which I have come that the act of the prisoner in stabbing the deceased was deliberate and not done in self defence or because of provocation. Such a conclusion is consistent with the verdict of the jury. Furthermore, the fact that the deceased was stabbed four times in the chest, with two of the blows being deep, is inconsistent with the prisoner merely swinging the knife he held in order to ward off the deceased. Although, I do not think that the prisoner had an actual intent to kill the deceased I am satisfied that he had formed an intent to inflict grievous bodily harm on him as a retaliation for the deceased not taking him seriously.

44 Regina v D.A.R (NSWCCA 8 November 1995, unreported) dealt, inter alia, with an appeal against a total sentence of 15 years that had been imposed on a prisoner for a murder committed by him when he was aged 16 years and 11 months. The death resulted from the appellant having stabbed the deceased once in the chest. Sperling J, with whom Gleeson CJ and Ireland J agreed, said:

“… it is drawing a fine line to distinguish between an intention to kill and an intention to cause grievous bodily harm in the case of a deliberate stabbing wound to the chest

Where four stab wounds are inflicted on the victim, the line referred to by Sperling J is even finer.

45 The use of a knife in the circumstances that led to the death of the deceased in my opinion makes it necessary to reflect both retribution and general deterrence in any sentence that is imposed. Whilst the judgment of the prisoner may have been that of a young, immature, ill-adjusted, drug addicted male, any sentence imposed must reflect the disapprobation of the community and the courts of the use of knives in unwarranted attacks on citizens in public streets. The Court of Criminal Appeal has made it abundantly clear in a number of cases that a person who uses a knife in order to perpetrate a crime can expect “stern retribution from the courts” (Regina v Bell NSWCCA 29 September 1997, unreported). Such a stance should not be undercut.

46 The sentence imposed should also be such as to be seen as a deterrent by those who might be minded to use knives for the purposes of obtaining money to satisfy their drug addictions. (Regina v Watt (NSWCCA 2 April 1997, unreported)).

47 Whilst the murder committed by the prisoner was not of the most serious kind, it involved the use of a knife. It involved multiple wounds to the chest of the deceased. It involved a member of the public who was unknown to the prisoner and was in a public street. Objectively, the murder for which the prisoner was convicted, in my opinion, falls into the category of serious and thus calls for a sentence that is at the higher end, but not at the extreme, of the range of sentences for murder.

PSYCHOLOGICAL/PSYCHIATRIC ASSESSMENT AND PRESENTENCE REPORTS

(a) Psychological Assessment

48 The prisoner was interviewed at Long Bay by a clinical psychologist, Mr Terry Smith, on 30 August 2002, ie following the prisoner’s conviction on 3 July 2002, but before the first day of his sentence hearing on 6 September 2002. On interview, the prisoner was initially anxious but quickly warmed to the interview process as a result of which he was reported to have provided “an open and coherent account of the events of 20.5.01 and other relevant background information.”

49 The history given by the prisoner was of a conflict ridden family life from the age of 12, as a result of which he moved away and spent approximately half his time living with his grandmother in the premises next door to the family home. The psychologist recorded that the prisoner had “a constant history of poly-substance abuse from the age of 14 years,” the prisoner saying that “I was smashed all the time … it was the only way that I could get away from the voices in my head … always they criticised me, put me down, never let me be without the criticisms.”

50 The prisoner said that he had stopped taking heroin about six months before the killing, but after that he had met up with Ms Sekulovska again he had resumed his heroin taking. He said that he and she spent a lot of time together sharing their addiction.

51 He also claimed that he had been stabbed by a knife two days before the murder, and that on the day of the murder he had consumed valium and rohypnol “to manage the pain” and at that time he was consuming 40 to 60 five milligram tables of valium, two to three rohypnol tablets and a quarter weight of heroin a day.

52 The prisoner’s account of the events that led to the killing was detailed, but not wholly in accordance with the evidence given by him and his female associate at the trial. Although the prisoner is not recorded in the psychologist’s report as having expressly stated that his female associate was engaged in oral sex with the deceased immediately prior to the killing, he is recorded as saying that he “saw her on her knees in front of him (the deceased)”.

53 In his account of the events the prisoner adhered to his claim of self defence. Furthermore, the prisoner said that he was “swinging the knife that he held and just kept swinging the knife and I didn’t realise I was stabbing him”. In short the prisoner proffered a justifying version of events which I do not accept and which is inconsistent with the physical evidence and with the jury’s verdict.

54 The prisoner was assessed for epilepsy, but the outcome of such assessment was negative. When asked about the effects of his actions he expressed contrition to the psychologist. In addition he gave a history of having been involved in an armed robbery of a video store on a previous occasion. This was motivated by his heroin addiction and for this offence he was placed under the supervision of a Juvenile Justice Counsellor (see Children’s Criminal Proceedings Act 1987, s 33), with the consequences prescribed by s 15(3) of such Act.

55 Mr Smith expressed the view that the background history of the prisoner was somewhat difficult to understand but, having developed in a nurturing and safe family environment to the age of 12, he then underwent “a huge metamorphosis”. He claimed that this had occurred after he had developed an acute anxiety reaction following his parents accusing him of causing his father to a have a heart attack. The psychologist further expressed the view that from that time onwards the prisoner “became a strongly defiant oppositional and conduct ordered (sic) adolescent” who “quickly lapsed into persistent marijuana consumption, truancy and theft”. The voices which the prisoner claimed to have heard were said to have “a syntonic quality” were “not considered consistent with oral hallucinations, rather they were “characteristic of intense alienation”.

56 The prisoner was found to be “under socialised and emotionally immature with a very high likelihood that he progressed into adulthood suffering ADHD, to be a person whose adult identity is poorly or under-formed.” Significantly, the clinical psychologist opined that the prisoner has “little useful insight into the reasons underlying his poly-substance dependencies and his offending.” As a consequence he considered the prisoner “to be highly at risk of not being able to change these behavioural patterns unless he is provided with … intervention.” He further expressed the opinion that, “it is vitally important that (the prisoner) undertake long term rehabilitation if any confidence is to be gained in his ongoing adaptation.”

57 Taking the report as a whole, it does not, in my opinion, auger well for the prisoner’s future. His immaturity, lack of insight, continuing justification of his actions, blaming his family for his condition, lack of success of his previous rehabilitation attempts and the guarded opinion expressed by the psychologist suggest that his prospects of rehabilitation are not highly favourable.

(b) Psychiatric Assessment

58 On 30 September 2002 Dr Jonathan Carne, a consultant forensic psychiatrist, undertook a psychiatric assessment of the prisoner in the course of which the prisoner gave him a long history. Dr Carne also consulted the prisoner’s mother and had access to the psychological report which had been prepared by Mr Terry Smith.

59 The history given to Dr Carne included that during the prisoner’s adolescence his best friend had been killed in a train accident, his father had suffered a heart attack and an aunt to whom he was close had died. He had been expelled from three schools and as a result of a medical assessment he was diagnosed at about that time as suffering from attention deficit disorder. However, he failed to co-operate with treatment.

60 It is clear from the history obtained from both the prisoner and his mother that his parents had gone to considerable lengths to overcome the behavioural problems exhibited by the prisoner. They moved him from a state school to a private school and back to a state school. They sent him to a boarding school in Armidale to get him away from adverse influences. His mother said that she and his father “tried everything they could think of and took all the advice they could muster, but nothing seemed to work”. The picture presented by the prisoner’s mother is at odds with that presented by the prisoner to Mr Terry Smith. Mrs Cakovski gave evidence at the sentence hearing. She presented as a decent, heartbroken woman who had tried her best, but had met with failure. I accept her evidence in relation to the attempts made by her and her husband to help their son Daniel.

61 The report by Dr Carne reveals that he reviewed the prisoner’s criminal record with the prisoner. Property and motor offences were revealed by the prisoner, as was the armed robbery referred to in paragraph 54 above. The review led to the consultant psychiatrist reporting that “there was no record of violence”. However, it is not clear whether the prisoner made reference to the circumstances leading up to the events at Condell Park on 20 May 2001.

62 It is apparent from Dr Carne’s report that the prisoner had been referred to counsellors on a number of occasions but never felt that he could trust them and never developed any rapport with them. Furthermore, although offered treatment at the Serfontein Clinic for his attention deficit disorder he failed to adhere to the treatment programme. He also attended the Rivendale Adolescent Psychiatric Service for counselling with his family, but this was unsuccessful.

63 The prisoner gave a history of alcohol and drug abuse from the age of 13, with opiates coming into the picture at the age of 15. He said this was because he would hear a commanding voice similar to his father’s which would criticise him and he discovered that substance abuse helped him to forget the concerns. However, he did not divulge these facts at that time, as he was frightened he might be locked up in a psychiatric hospital.

64 The events prior to the murder of the deceased were detailed by the prisoner. These included a claim that his female companion went to have sex with the deceased in exchange for some money and that this made the prisoner very angry. The account by the prisoner was one of justification, in which he claimed that in order to protect himself, he “swung the knife” at the deceased and ran away at the first chance he had. The prisoner expressed remorse for the death of his victim, accepted responsibility for the death, but was adamant that it occurred in circumstances of self defence. I do not accept this; nor does the verdict of the jury.

65 Dr Carne linked the anti-social behaviour by the prisoner during his adolescence to the attention deficit disorder (medically described as attention deficit hyper-activity disorder (ADHD)) from which the prisoner had been found to be suffering. ADHD is apparently associated with impulsive behaviour, poor concentration, learning difficulties and poor educational progress. Dr Carne expressed the view that at the time of the murder the intoxication of the prisoner by drugs would “have a disinhibiting effect and (be) likely to lead the individual to react in an uncharacteristic manner”. He further expressed the view that the prisoner “appeared genuine in his remorse,” but ventured no opinion as to his future rehabilitation.

66 On the basis of Dr Carne’s report, the prospects of rehabilitation for the prisoner cannot be viewed as high.

(c) Pre-sentence Report

67 The Probation and Parole Service (the Service) prepared a report in respect of the prisoner dated 29 November 2002. It records that the prisoner first came into contact with the Service in May 2001 for a series of offences arising out of the wrongful use of a motor vehicle, including refusing a blood test and refusing a urine test. Apparently the prisoner went into custody for these offences on 8 August 2002 and was sentenced to a term of three months imprisonment.

68 The report chronicles the change in behaviour in the prisoner from about the age of 12. Interviews with the prisoner’s father and mother established their support for him during his adolescence but, despite their efforts, he continued in his failure to meet their expectations. Both parents were said to be strict disciplinarians as a result of which he ran away from home because he asserted “punishment stopped when I ran away”. In contrast with his presentation at the interviews with the clinical psychologist and consultant forensic psychiatrist, the prisoner appeared to have some difficulty recalling childhood events and gave the impression that he may have some difficulty in understanding questions.

69 The prisoner’s school reports indicated that he was disruptive in class, often drew attention to himself and had a below average performance level. He left school before completing year 10.

70 When recounting the events that led to the death of the deceased the prisoner asserted that he did not intend to kill the victim but that he “slashed the face of the victim to warn him off”. He is not recorded as having informed the Probation and Parole Officer that the slash to the deceased’s face was the last wound inflicted by him and denied any recall of the fact that he had stabbed the deceased four times in the chest. He asserted that he acted in self defence. The report further states:

“He feels sad, angry and confused about what happened, as he is adamant he cannot recall events leading up to the offence and the fatal wound. However, he denies any attention (sic) or plan to rob the victim.”

A number of the statements made by the prisoner are in marked contrast to the history given to the clinical psychologist and the consultant forensic psychiatrist. A number of them are also inconsistent with the evidence given by the prisoner at his trial and I do not accept his claim to absence of recall.

71 To the Probation and Parole Officer who compiled the report the prisoner stated that he had been stabbed in the arm five days earlier, and that “the knife he possessed was by way of protection.” Again, this excuse for carrying the knife is inconsistent with the evidence given by the prisoner at his trial, and there is a marked variance as to the time of the alleged injury to his arm when compared with what he told Mr Terry Smith.

72 The notes from the Corrections Health Service record the prisoner as having nightmares, poor sleeping patterns, sweating, palpitations and unexplained marked weight loss. In addition the notes indicate that he has day-time anxiety attacks which the prisoner attributed to the current legal issues.

73 The conclusion reached by the Probation and Parole Officer was that the prisoner was an immature young man lacking in social and life skills who had a high level of anxiety which was relieved by the use of drugs. Violence was suggested to be out of character for the prisoner but the view was expressed that he had an unresolved drug addiction. Reference was made to the fact that the prisoner may take advantage of participation in programmes appropriate to his development including drug, alcohol and harm minimisation programmes. No opinion was ventured as to the likely future of the prisoner whilst in custody.

74 The pre-sentence report poses a number of difficulties for the prisoner. First, in relation to the inconsistency between the facts and his assertions and between some of his assertions at interview and evidence given by him at his trial. The inconsistencies indicate that the prisoner does not really acknowledge the seriousness of the wrong done by him and still seeks to excuse himself, in essence blaming others for what he did.

(d) Summary

75 In total the psychiatric, psychological and pre-sentence reports present a sad story of a young man who, despite genuine and substantial efforts by his parents, has slid down the ladder of life as a result of drug abuse in a manner that is seen all too frequently in the courts. That slide culminated in a man being killed to get money to fund the prisoner’s drug dependency. The prisoner’s insight is limited, his prosects of rehabilitation not high, indeed in this regard the professional assessment is at best, guarded.

SUBMISSIONS

(a) By the Crown

76 It was submitted on behalf of the Crown that the nature of the murder placed it objectively in the more serious category, albeit not in the most serious category since the prisoner armed himself with a knife for the purposes of robbing the deceased and killed in him in the course of a robbery designed to obtain money to feed the prisoner’s drug habit. It was further submitted that retribution and general deterrence were appropriate considerations to take into account when imposing the sentence. Furthermore, the prospects of rehabilitation of the prisoner were argued not to be very good. However, the submissions recognised that the youth of the prisoner was a material factor to be taken into account both in relation to the head sentence and special circumstances.

77 The submissions of the Crown adverted to the ingestion of drugs by the prisoner during the course of the evening preceding the murder. It was submitted on behalf of the Crown that although the drug craving of the prisoner was a relevant motivating factor he should not be taken as being in such a condition as a result of drugs as to be regarded as intoxicated and hence perhaps less culpable. In my opinion there is substance in these submissions.

78 The prisoner gave evidence at the trial of having taken two rohypnol tablets, five valium tablets and one eighth of a gram of heroin by injection. I am satisfied that these were likely to have had continuing but gradually decreasing effects during the evening of 19 May and the early morning of 20 May 2001, but the precise extent to which the prisoner was affected by drugs at the time of the killing is not clear from the evidence. It should be remembered, however, that when he was searched at Stanmore earlier in the evening and at a time more proximate to the time of ingestion of the drugs than the murder, Constable Venables did not observe anything about the demeanour or conduct of the prisoner that suggested that he had consumed drugs. In addition, the surveillance videos taken near the scene of the murder do not show the prisoner to be affected. For example, he was able to walk and other evidence suggests, able to talk, in an apparently normal fashion. Furthermore, and although less significant, he did no present as affected by drugs at Condell Park some three hours after the murder. Finally, the conversation between the prisoner and his female companion at the Westside Mission on 22 June 2001 indicates that the prisoner had a detailed recollection of what had occurred at the time of the murder, rather than that he was befuddled by drugs.

79 The Crown also addressed a matter which had been raised in the course of a segment of the sentence hearing on 25 October 2002, namely, the effect of any sentence on the prisoner’s family.

80 Notwithstanding the history given to the consultant forensic psychiatrist, the psychologist, the parole officer and to some extent in the evidence given by the prisoner, I am satisfied that the prisoner’s mother and father have been supportive of him and have tried their very best to deal with his behavioural problems and drug addiction over a substantial period. Whilst there may be a belief on the part of the prisoner that his behaviour was in some way linked to, and blamed for, a heart attack that his father had experienced many years ago, I am satisfied that neither his mother nor his father in fact blamed the prisoner for the father’s illness, nor said to the prisoner that they did so.

81 There is no doubt that the conviction of the prisoner and any sentence that is imposed on him will add to the anguish which his mother and father have already suffered as a result of the events of 20 May 2001. Neither wants to believe that their son could do the things that the jury in the present case, as well as the District Court jury, found him to have done. Their grief will continue whilst ever he is in prison. That grief will be a burden for them and undoubtedly will bring suffering into their lives but it is not, in my opinion a factor of a kind that should be taken into account in mitigation of the sentence to be imposed in this case.

82 The members of the family of most prisoners feel grief and experience suffering as a result of one of the family being imprisoned. This is a common result that flows from imprisonment. The situation is often worse for parents. To have one of their offspring imprisoned is a heavy burden. However, it is not appropriate to take such considerations into account in mitigation of sentence in the present case. To do so would be inconsistent with the principles that have been established in numerous cases in Australia and England.

83 In Boyle (1987) 34 A Crim R 202 the Court of Criminal Appeal in Western Australia considered the question as to whether a sentencing court should have regard to the impact that a sentence of imprisonment will have on the members of the prisoner’s family. Burt CJ with whom Kennedy and Franklyn JJ agreed said:

“The general principle is … that a sentencing court should have no regard to the impact which a sentence of imprisonment will have upon the members of the prisoner’s family. That principle has been emphasised in a number of reported cases, the reason for it being as expressed by Lord Widgery CJ in Ingham (1974) as noted in DA Thomas, Current Sentencing Practice (1982), par C 4.2(a) as follows:
“… The crux of the matter is that part of the price to pay when committing a crime is that imprisonment does involve hardship on … the family, and it cannot be one of the factors that can affect what would otherwise be the right sentence.”
But the English decisions make it clear that that is not an absolute rule and it will be departed from in exceptional circumstances …

…

The Australian authorities would seem to me to reflect the same approach although they consistently emphasise that the general principle to which I have referred will only be departed from ‘in extreme cases’: see Wirth (1976) 14 SASR 291 at 294 per Bray CJ or, as Wells J expressed it in that case (at 296) … when to apply the principle would be ‘to carry it past the point where a sense of mercy or of affronted commonsense imperatively demands that they (the sentencing judges) should draw back.’” (supra at 205-206)

84 A like principle has been applied in New South Wales. In T (1989) 47 A Crim R 29 Allen J referred to the hardship to the family of the applicant for leave to appeal that would result from the forfeiture of the gratuity and retirement pay of the applicant as a consequence of his conviction and sentence. In rejecting a submission that the trial judge erred in not taking such hardship into account in mitigation of penalty, he said:

“Counsel for the applicant argued that his Honour erred in failing to take into account the hardship which the loss of the gratuity and retirement pay would cause to the applicant’s family. It is only in circumstances of exceptional hardship to the applicant’s family that the court will take into account that hardship in mitigation of sentence. The hardship must be so ‘extreme’ – going beyond the sort of hardship which inevitably results to a family when a bread winner is imprisoned, that ‘a sense of mercy or of affronted commonsense imperatively demands that they (the sentencing judges) should draw back ( Boyle (1987) 34 A Crim R 202 applying Wirth (1976) 14 SASR 291 … )” (supra at 40)

85 In Tilley (1991) 53 A Crim R 1 the Queensland Court of Criminal Appeal said:

“It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support. In the case of a female, it may mean a temporary loss of a mother. It is common that hardship or stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if the courts gave in to the temptation. In making these remarks I have had regard to Boyle (1987) 34 A Crim R 202 ; Moore v Fingleton (1972) 3 SASR 164 and DA Thomas, Principles of Sentencing , pp 211-212, and Current Sentencing Practice (1982) par C 4(2)(a)(at 3-4).”

86 Although the court understands the anguish and sadness that Mr and Mrs Cakovski, as caring parents, have experienced and will experience as a result of the conviction of and penalty imposed on their son, Daniel, in this case their anguish and sadness does not result in the imposition of a sentence on the prisoner that is less than should otherwise be imposed.

(b) Submissions on behalf of the prisoner

87 The prisoner was represented by experienced senior counsel on the sentence hearing. He submitted that the court should look at the behaviour of the prisoner over a lengthy period of time, have regard to the escalation of his drug problem and the fact that by the early hours of 20 May 2001 he had reached a stage “where he was literally prepared to do almost or indeed, anything to satisfy his drug dependency.” He further submitted that the attempted robbery at Condell Park later the same day should be viewed as merely a continuance of the events at Strathfield, both being indicative of the drug problem to which the prisoner was subject. Both events should, in effect, be treated as an indication that the prisoner was in such a state that he was “prepared to do anything and will continue on effectively until … stopped or … die as a result of a drug overdose.”

88 Such an approach, so the argument ran, raises two major matters for consideration. The first is the invocation of the principle of totality, with the consequence that the court should not accumulate any sentence for the murder with that imposed in the District Court in respect of the offence of being armed with intent to commit robbery at Condell Park. The second is that there is no relevant principle of general deterrence that should be involved in the determination of the sentence. For reasons set out below I am of opinion there should be a degree of concurrence between the sentence to be imposed on the prisoner for the murder of the deceased and that already imposed in the District Court in respect of the offence at Condell Park. However, I am of opinion that general deterrence is an appropriate consideration to take into account in fixing the sentence to be imposed.

89 The next submission made on behalf of the prisoner was that the sentence should be less than might otherwise be imposed because of the youth of the prisoner at the time of the commission of the murder and the later crime at Condell Park.

90 It was also submitted that the prisoner had genuine remorse or contrition concerning the victim and in respect of the murder that he had committed. The existence of such remorse or contrition was advanced as a favourable indicator in respect of rehabilitation. Whilst it was conceded that the prisoner felt sorry for himself that was said to be part only his contrition.

91 As indicated above I am of opinion that the prisoner did not plan in advance to kill the deceased. He planned to rob him using a knife for that purpose. The deceased did not, however, take the prisoner’s threats as seriously as the prisoner wanted. He therefore decided to use the knife on the deceased, but did not form an actual intent to kill him; rather his intent (conformably with the verdict of the jury) was to stab the deceased. The conversation recorded at the Westside Rehabilitation Mission on 22 June 2001 is powerful proof of this. The killing can be seen as an armed robbery that went wrong. As a consequence the culpability of the prisoner is to a degree less than would be the case had he planned in advance to kill the deceased.

92 I think there is much to be said in favour of looking at the situation of the prisoner over a period of time rather than just on the night of the murder. His addiction to drugs began at a time before he had the discrimination or judgment that would enable him to see where the road of drug taking would be likely to lead him. This is one aspect of the submission which correctly calls in aid the youth of the prisoner.

93 The relationship between youth, prospects of rehabilitation and the principle of general deterrence has been the subject of many decisions. In GDP (1991) 53 A Crim R 112, Mathews J (with whom Gleeson CJ and Samuels JA agreed) said:

“The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that ‘in the case of a youthful offender … considerations of punishment and of general deterrence of others may be properly largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation … this principle was also adopted by Hunt J in Bellavia (unreported, 16 August 1980).
Subsequent decisions of this court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders." (supra at 116)

94 In Webster (NSWCCA unreported, 15 July 1991) the court considered an appeal by an 18 year old who had been convicted of murder and sentenced to a minimum term of 14 years with an additional term of 6 years. In dismissing the appeal Allen J (Gleeson CJ and Lee CJ at CL concurring) said:

“The objective gravity (of the offence) cannot be allowed to be pushed into the background by a consideration of regret that the offender has blighted his own life as well as totally destroying the life of his victim or by proper concern that if at all possible he be rehabilitated.
The protection of the community does not involve simply the infliction of punishment appropriate to the objective gravity of the crime. There are other considerations as well – principally although by no means only, the deterrence of others who might be tempted to commit like offences and the rehabilitation of the offender.
The community does have a real interest in rehabilitation. The interest to no small extent relates to its own protection – albeit that there are other considerations as well. The community interest in respect of its own protection clearly is the greater when the offender is young and the chances of rehabilitation for almost the whole of the offender’s adult life, unless he is crushed by severity in sentence, are high.
In the balancing process of the elements of sentencing in the case of a young offender with good prospects of rehabilitation , the element of rehabilitation will weigh highly with the relative decreasing of the effective weight of the element of the need to deter others … Nevertheless, the punitive element remains, the sentence must reflect the seriousness of the crime.”

95 In Pham and Ly (1991) 55 A Crim R 128 Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) said:

“… the gravity of the crime and that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to function. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes particularly involving physical violence to persons in their own homes.” (supra at 135)

96 The approach referred to in paragraph 94 and 95 above has been applied in a number of cases concerned with sentences for murders committed by young offenders, eg, (Verney (NSWCCA 23 March 1993, unreported); HAS (NSWCCA 13 August 1998, unreported). In HAS the court referred to the useful guidelines in relation to sentences to be imposed on young offenders for murder and the relationship between minimum and additional terms discussed by Badgery-Parker J in Mihilovic, Howard, Morgan and Young (NSWSC 15 April 1991, unreported). In that case Badgery-Parker J said:

“There is also a tension between the purposes to be achieved by the imposition of a punishment for serious crime. The youth of the offenders and the importance of their rehabilitation necessarily plays a large part in the sentencing process but does not permit the court to disregard other elements of punishment – where appropriate, personal deterrence of the offender; general deterrence, that is to say the need to dissuade others from similar conduct; and the public vindication of the law. The sentences imposed must be such that will demonstrate with the utmost clarity that the community will not tolerate violence of this kind.”

97 Hearne (2001) 124 A Crim R 451 involved an application for leave to appeal against a sentence of imprisonment for 20 years with an additional term of seven years for a murder committed by stabbing. The applicant was three months short of his 19th birthday at the time of the murder. The Court of Criminal Appeal (Powell JA, Hulme and Dowd JJ) reduced the sentence by reference to a plea of guilty, lack of premeditation and the youth of the offender to 18 years consisting of a minimum term of 13 years and an additional term of 5 years. In referring to the youth of the applicant the court stressed that the rationale for making any allowance for youth is the immaturity which is usually involved and said:

“Where that immaturity is a significant contributing factor to an offence then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.”

98 In my opinion it is appropriate to take into account the youth of the prisoner in the present case. Although he was over 18 at the time of the commission of the murder, and was in a legal sense an adult, he was, nonetheless still a young adult. It should however be remembered that the significance of the youth factor diminishes the nearer the offender is to full adulthood. The judgment of a 19 year old man is usually better than that of a 16 year old boy, but is usually less mature than that of say a 25 year old. The youth of the prisoner should be reflected in the sentence to be imposed in the present case and is also material to the question of special circumstances.

REMORSE OR CONTRITION

99 In August 2002 the prisoner expressed remorse to the clinical psychologist, Mr Terry Smith, but did so in a context of attempting to excuse his actions in murdering the deceased. He also expressed remorse to the consultant forensic psychiatrist, Dr Carne, in September 2002, combining such expression with a stated intention of abstaining from substance abuse and leading a law abiding life when released. However, his statements as to the Probation and Parole Officer in November 2002 were that he “feels sad, angry and confused about what happened, as he is adamant he cannot recall events leading up to the offence and the fatal wound.” I do not accept that he lacks recall in relation to those matters. The prisoner gave evidence at his trial. Such evidence asserted a clear and detailed recollection of the material events. He also gave evidence on his sentence hearing in the course of which he expressed remorse for what he had done.

100 The prisoner’s statements to the clinical psychologist, the consultant forensic psychiatrist and in the course of his evidence are in marked contrast to the statements made by him in his room at the Westside Mission on 22 June 2001. In addition the actions of the prisoner in going from Strathfield to Condell Park having planned to carry out an armed robbery at the newsagency there, do not bespeak remorse or contrition at that time.

101 This is an aspect of the case which has troubled me, the more so in the light of the finding in the District Court that the prisoner had exhibited no contrition in respect of the offence at Condell Park. However, the prisoner has spent some 18 months in custody since he committed the offences on 20 May 2001. During that time he has had ample opportunity to reflect on what he has done and to do so in a condition apparently unaffected by drugs. Such reflection in such circumstances and in such a condition may well have resulted in a change of attitude on the part of the prisoner. On balance and notwithstanding some serious misgivings, I am prepared to accept on the balance of probabilities that the prisoner does have a degree of remorse and that it would be appropriate to take this into account in mitigation of sentence.

REHABILITATION

102 It was submitted on behalf of the prisoner that his rehabilitation prospects should be regarded as high. This was argued to be consistent with:

· His conduct in prison;

· The fact that he has had undergone urine tests in prison that have been negative for drugs;

· The ongoing support given by his family;

· The remorse shown by the prisoner.

As against this are the consistent attempts by the prisoner to justify his conduct at the time of the killing. This, in my opinion suggests that emotionally the prisoner does not fully accept his culpability for the murder of the deceased. However his family have continued to support him, and in my opinion are likely to continue to do so. This is a significant factor in favour of his prospects of rehabilitation.

On balance I am of opinion that there are some prospects of rehabilitation, but I would not characterise them as very high.

SPECIAL CIRCUMSTANCES

103 The youth of the prisoner at the time of the commission of the murder can also be a special circumstance to be taken into account when determining the relationship between the head sentence to be imposed and the minimum term to be served before the prisoner becomes eligible for parole. So too, in my opinion, can the limited and disturbed education of the prisoner. This is in part a consequence of the ADHD with which he has been diagnosed. This of itself could constitute a special circumstance.

104 Having regard to the foregoing factors I am of opinion that special circumstances exist and should be taken into account in reduction of the non-parole period to be fixed as part of the sentence. I made this finding notwithstanding a contrary finding by the District Court Judge in relation to the offence at Condell Park. I am unaware of the evidence in the proceedings relating to that matter, but the evidence in the present matter, in my opinion, amply justifies a finding of special circumstances.

TOTALITY

105 The remarks on sentence made by the District Court judge adverted to the murder committed by the prisoner at Strathfield some few hours before the offence at Condell Park. The offence was described as ‘impulsive, opportunistic,’ with planning being done ‘on the run’ and relatively ineffectually. Much the same description could be applied to the events at Strathfield. Both offences were consequent upon the same desire to satisfy the drug addictions which both the prisoner and Ms Sekulovska were subject to. Furthermore, the prisoner is already the subject of sentencing regimes in respect of outstanding warrants and the offence at Condell Park. In these circumstances it is appropriate to take into account both proportionality and totality in relation to the sentence to be imposed. (Mill v The Queen (1986) 166 CLR 59 at 62-66; Todd (1982) 2 NSWLR 517). These principles should be reflected in the duration of the sentence to be imposed and the extent to which the sentence imposed for the murder of the deceased is made concurrent with the sentence imposed in respect of the offence at Condell Park.

CONCLUSION

106 The various factors referred to above, including the objective seriousness of the circumstances in which the murder was committed, the need for the court to record the community’s disapprobation of such conduct by an appropriate sentence and for such sentence to operate as a deterrent to others who may be inclined to engage in conduct of the kind engaged in by the prisoner, all bespeak a substantial prison sentence. On the other hand, the youth and immaturity of the prisoner, a degree of remorse on his part and the fact that there are some prospects of rehabilitation operate as circumstances which should mitigate the sentence which would otherwise be imposed. As I have already indicated the nature and circumstances of the crime mark it out as serious, towards the higher end of the spectrum of sentences. Balancing the various factors to which I have adverted in the course of these Remarks, I am of opinion that the appropriate sentence to impose on the prisoner is imprisonment for 18 years, but in view of the special circumstances that I have found to exist the statutory ratio between the head sentence and the non-parole period should be altered. In my opinion the non-parole period should be fixed at 12 years. Both of these aspects of the sentence will need to be adjusted to give credit to the prisoner for the time he has spent in custody in relation to the murder, as is required by s 24(a) of the Crimes (Sentencing Procedure) Act 1999.

107 I am also of opinion that having regard to the principle of totality the sentence for murder should be concurrent with the sentence imposed in the District Court to the extent of 12 months.

108 The prisoner has been in custody in respect of the charge of murder for one year and 82 days. He is entitled to a credit for this period in custody in relation to both his head sentence and non-parole period. Since the prisoner should have his sentence for murder concurrent with his sentence for the offence committed at Condell Park to the extent of 12 months both the head sentence and non-parole period in respect to his conviction for murder should commence on 14 December 2003. When the sentence proposed in paragraph 106 above is adjusted in accordance with s 24(a) of the Act it should thus conclude on 23 September 2020. When the same adjustment is made to the non-parole period referred to in paragraph 106 above it should conclude on 23 September 2014, however before formally imposing the sentence I will stand the matter down until 2.15pm to give the legal representatives of the parties an opportunity to check my calculations.

At 2.15pm:

109 This morning I gave reasons for the sentence which I proposed to impose on the prisoner Daniel Cakovski. I stood the matter down before imposing the formal sentence to enable the representatives of the parties to check the calculations that I had made. On resumption the parties confirmed the correctness of the figures referred to in paragraph 108 of my Remarks on Sentence. However, the Crown produced an up-to-date history of the prisoner’s criminal convictions. That document (exhibit F on sentence) reveals convictions for six offences and consequent sentences imposed in the Burwood Local Court on 1 November 2002 that were not previously known to the Court. Each of the offences was concerned with or arose out of the illegal use of a motor vehicle. Three concurrent sentences for a period of two months commencing on 1 November 2002 were imposed. They would thus expire on 31 December 2002.

110 The question which is posed by that additional information is whether the prisoner should be given a credit on both his head sentence and non-parole period of one year and 82 days as indicated this morning, or whether this credit should be reduced by 34 days in consequence of the sentence imposed on 1 November 2002. I say this because the calculation of the period of one year and 82 days gave credit to the prisoner for a period of 34 days between 7 November 2002 and 10 December 2002. This is a period in respect of which it is now apparent he was in custody as a result of the terms of imprisonment imposed upon him in the Burwood Local Court on 1 November 2002.

111 On balance I think that I will not alter the conclusion to which I had previously come. Thus I will not reduce the credit of one year and 82 days that I had previously calculated. True it is that this confers a benefit on the prisoner, but in the light of the sentence that will be imposed on him it is in my view de minimis and since it is to the benefit of the prisoner I think it not inappropriate that he receive that benefit.

112 Therefore I give credit to the prisoner to the extent of one year and 82 days in respect of both his head sentence and non-parole period. Since the prisoner is to have his sentence for murder served concurrently with his sentence for the offence committed at Condell Park to the extent of twelve months, both the head sentence and non-parole period in respect of his conviction for murder should commence on 14 December 2003. When the adjustments referred to in my Remarks on Sentence are made in respect of the head sentence, such sentence should come to an end on 23 September 2020. When the same adjustments are made in respect of the non-parole period, such period should conclude on 23 September 2014.

SENTENCE

113 Daniel Cakovski, you have been found guilty by a jury of your peers of having murdered Eugene Petroff at Strathfield on 20 May 2001. In respect of that crime I sentence you to a term of imprisonment commencing on 14 December 2003 and ending on 23 December 2020 with a non-parole period commencing on 14 December 2003 and ending on 23 September 2014, on which date you will become eligible for parole.

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Last Modified: 02/12/2003