R v Burns

Supreme Court of NSW|2022-01-28|Before: McCallum JA, Hamill J, Legislation Amendment J, Callum JA

Judgment

McCALLUM JA: Jake Burns stands to be sentenced for the murder of Erol Tokcan, who died as a result of a single stab wound inflicted by Mr Burns during a drug robbery which went horribly wrong. Mr Burns is also to be sentenced for an offence of armed assault with intent to rob causing wounding contrary to s 98 of the Crimes Act 1900 (NSW) which was part of the same incident and involved the same victim.

Impact on victims

I want to start by acknowledging and recording the impact of the murder on the family of Mr Tokcan. Victim impact statements were provided by Mr Tokcan's mother, Keziban Tokcan and his three sisters, Ayse Ozturk, Meral Tokcan and Fatosh Tokcan. The Crown Prosecutor applied to have those statements taken into account in accordance with s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community. I consider it appropriate to have regard to the statements for that purpose.

Facts of the offences

The facts of the offences are set out at length in my previous judgment in these proceedings, which was published following a contested fact hearing: R v Burns [2021] NSWSC 1536. This judgment is based on the findings in that judgment. It is nonetheless convenient to give a brief recapitulation of the central matters.
On the evening of 9 March 2018, Mr Burns consumed a large amount of beer and cannabis while visiting two friends. When they ran out of both, they went to the local RSL club where they kept drinking. On the way home, they bought a slab of beer which they shared when they got back to the friend's house. Mr Burns was "pretty intoxicated" but was then a man of solid build and a regular drinker with some acquired tolerance to the effects of alcohol.
At around 8:30pm the three men decided to go out to buy more cannabis. They were driven by a fourth man to a house occupied by the deceased, Mr Tokcan. He was at home that night with his girlfriend and two male friends. Mr Tokcan and his companions had all been smoking methylamphetamine.
Mr Burns went to the front door asking to buy some cannabis. Mr Tokcan had cannabis in the house but refused to sell any to Mr Burns, saying, "I've only got some for personal use. Fuck off. Don't come here anymore. I don't know you well…"
Mr Burns went back to the car and the men left. However, at some point as they drove away, he suggested they go back and "take it, take everything". One of the other men said, "Don't say you're going to do something you're not going to do". Mr Burns replied, "Take me back, I will".
The driver stayed in the car while Mr Burns and his two friends went back to Mr Tokcan's house. Mr Burns asked one of his friends to knock on the door because he did not think Mr Tokcan would sell to him, having refused earlier. In my previous judgment, I found that this demonstrated that, despite his intoxication, Mr Burns had some capacity for rational thought immediately before committing the offence. As he was walking towards the door behind the other two men, Mr Burns took a knife from his pocket. In the previous judgment, I found that the knife he had that night was his pocket folding knife which he carried regularly, which suggests that the robbery was unplanned. I am not satisfied that it was planned in any way.
One of Mr Burns' friends knocked on the door. It was answered by a friend of Mr Tokcan, Mr Lupica, who put his foot behind the door to stop it from being pushed fully open.
Mr Lupica asked what the men wanted. One of them responded that he knew a former occupant of the house and that they were after some pot. Mr Lupica called out to Mr Tokcan asking if he had any pot he want to get rid of. Mr Tokcan replied, "No, there's nothing here, bro". Mr Lupica said to the men at the door, "There's nothing here boys" and began to close the door. Mr Tokcan's girlfriend then called out "Just sell him a stick out of yours, Erol". Mr Lupica then said to Mr Tokcan, "So what, am I letting them in?" to which Mr Tokcan responded, "Yeah, alright".
Mr Burns then charged through the door from behind the two other men, grabbed Mr Lupica by the shirt and put the knife to his ribs. Mr Lupica did not see the knife but could feel something pressed against him.
Mr Burns announced that it was a robbery and demanded drugs. In the previous judgment, I found that he threatened to stab Mr Lupica at that point but I was not persuaded that he actually intended to carry out that threat. I found that Mr Burns intended to scare those inside the house with the knife in order to persuade them to hand over the drugs. I am not persuaded that he intended or anticipated any harm to the occupants when he first entered the house.
The robbery did not go as expected. Mr Tokcan's girlfriend accidentally turned off the lights in the lounge room. Mr Lupica yelled, "Don't turn the fucking lights off, this cunt has a blade to me!" While the lights were still off, Mr Lupica pushed Mr Burns further into the lounge room, away from the doorway. The girlfriend then turned the lights back on.
What happened next was the subject of conflicting evidence. I largely accepted the evidence of Mr Lupica. It is clear that there was a struggle of sorts and that, at some point, Mr Tokcan moved towards Mr Burns with outstretched arms as if to tackle him. In the meantime, Mr Lupica had a struggle with the other two men, who ended up fleeing from the house. Mr Lupica gave evidence that, as they were running away, he looked back towards Mr Burns and Mr Tokcan. They were wrestling each other with their hands out in front of their bodies. His view of that struggle was partly obscured by Mr Tokcan's girlfriend. However, he said he saw Mr Tokcan on the ground holding on to Mr Burns' shirt near his shoulders and making a rolling motion, trying to pull him down. He said Mr Burns appeared to be trying to make Mr Tokcan release his grip and that Mr Burns said, "Let me go cunt. I'll fucking stab you".
Mr Lupica described what he saw next. He gave a compelling account of a gesture by Mr Burns which I am satisfied was a stabbing movement. Mr Lupica ran over and threw the aluminium ladder towards Mr Burns, striking him in the chest. Mr Burns then ran out the front door.
On the strength of that evidence, I found that Mr Burns formed the intention to rob Mr Tokcan's household as he was being driven away from the house the first time and that he armed himself with the pocket folding knife as he approached the door the second time. I accept, as submitted by Mr Burns, that it follows that the robbery offence involved a very limited amount of planning. That is a factor that lessens the seriousness of the offence.
I found that the stabbing was deliberate (not accidental) and that it was committed with the intention of causing really serious harm but that the intention was formed spontaneously during the struggle between Mr Burns and Mr Tokcan and while Mr Burns was trying to escape from Mr Tokcan's grip.
As I said in the previous judgment, Mr Burns was very intoxicated on the night of this incident. I accept that he did not intend for the robbery to go the way it did. I have no doubt he became scared when fighting broke out in the house, increasingly so when Mr Tokcan grabbed his shirt and would not let go despite Mr Burns' efforts to free himself. I am satisfied beyond reasonable doubt that, in that adrenalin-fuelled moment, Mr Burns spontaneously formed the intention to stab Mr Tokcan so that he could escape.
I also held in the previous judgment that, although he armed himself with a knife that night, Mr Burns was not expecting to use the knife to stab anyone. The more likely fact is that, in the disinhibited and panicked state he experienced as a consequence of his intoxication and fear, the intention to stab Mr Tokcan was fleeting and was formed only while the two men were wrestling.
After the three offenders left the house, Mr Tokcan's friend, Mr Ozturk, called 000 for police and an ambulance. Police arrived to find Mr Tokcan lying unconscious on the floor with a large amount of blood around his stomach and chest area. They began performing CPR and paramedics arrived soon afterwards to take over. Mr Tokcan was taken to hospital but was pronounced dead shortly afterwards.

Objective seriousness

The law requires me to make an assessment of the objective seriousness of the offences. That is a difficult task to explain, particularly to the family of a person who has been murdered, but it is an essential step in the sentencing process. Of course, murder is always a most serious offence. But the sentencing statute requires, in effect, that a comparison be made between the case at hand and the full range of imaginable murders, from brutal contract killings to merciful euthanasia. The Crown submits that the present offence falls in the middle of the range of objective seriousness. Mr Burns submits that the offence falls below the middle of the range.
In resolving that question, in addition to the findings set out above, I have regard to the following aggravating and mitigating factors. An aggravating factor is the fact Mr Burns used a weapon (the knife). The Crown submitted that it was "no ordinary knife" and that, although it was not a pig hunting knife as police initially suspected, it was still of greater thickness and fortitude than an average pocket-knife. So much may be accepted. However, the evidence did not establish that Mr Burns deliberately chose that knife before he left home for the purpose of committing an offence. He made a spontaneous decision to rob the household after his attempt to buy drugs had been refused and, for that purpose, resorted to the knife he was carrying in his pocket. As already explained, I am satisfied that he intended to use the knife to frighten the people in the house rather than to injure them. That said, it was a dangerous decision and that is a factor that aggravates the seriousness of the offence. Conversely, the fact that the intention to harm Mr Tokcan was formed spontaneously, in the heat of the moment, is a factor that lessens the seriousness of the offence. There was no planning or premeditation. Mr Burns accepts that there was some planning, albeit minimal, of the robbery offence.
A significant aggravating factor is the fact that the offence was committed in Mr Tokcan's home and that Mr Burns charged into the home uninvited and for the purpose of robbing the occupants. The Crown accepts however that there is a significant overlap between those features of the murder and the separate offence of armed robbery.
The Crown submitted that the vulnerability of the victim, Mr Tokcan (on account of his acquired brain injury) is an aggravating factor. I do not accept that submission. The evidence of Mr Lupica was to the effect that he thought Mr Tokcan's condition contributed to his response of grabbing Mr Burns and refusing to let him go. That is a circumstance that helps to explain why events unfolded as they did but I do not think it aggravates the seriousness of Mr Burns' conduct. There is no suggestion that Mr Burns was aware of Mr Tokcan's condition or chose him as a target for that reason. It may be doubted whether the victim appeared vulnerable to Mr Burns.
In all the circumstances, particularly considering the lack of planning, the lack of intention to kill and the confusion of the struggle in which Mr Burns found himself in the grasp of Mr Tokcan, resulting in his stabbing him in the heat of the moment, I consider that the offence of murder falls below the middle of the range of objective seriousness. For substantially the same reasons, I consider that the armed assault with intent to rob causing wounding offence also falls below the middle of the range, albeit slightly, noting the greater degree of planning for that offence.

Discount for the pleas of guilty

Mr Burns did not plead guilty in the Local Court. He entered a plea of guilty to the robbery offence at his first appearance in the Supreme Court. He pleaded guilty to the count of murder later, but still more than 14 days before the trial date. Accordingly, for both offences, he is entitled to a discount of 10% for the utilitarian value of the pleas in accordance with s 25D(2)(b) of the Crimes (Sentencing Procedure) Act.
As there was a contested fact hearing, the Crown submitted that s 25F(4) of the Act "may have a part to play in determining the final discount". That section provides that the court may determine not to apply the sentencing discount, or to apply a reduced discount, where the utilitarian value of the plea has been eroded by a factual dispute that was not determined in favour of the offender. I am not persuaded that it is appropriate to reduce the discount. Mr Burns' pleas remain of substantial utilitarian value. A trial has been avoided. I accept that Mr Burns had mixed success in the contested fact hearing. He was unsuccessful in establishing that he stabbed the victim accidentally. On the other hand, he was successful in establishing that the knife he armed himself with was not the large hunting knife that belonged in a box found by police at his home but rather a smaller pocketknife he was in the habit of carrying at that time. While there will no doubt be cases in which s 25F(4) has work to do, care must be taken not to exercise the discretion it confers in such a way as to subvert the object of the early plea scheme or to introduce unfairness. The object of the early appropriate guilty plea regime was to address significant delays in the finalisation of indictable matters: see Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017, Parliamentary Debates (Hansard) 11 October 2017, p 277. A contested fact hearing will often produce a relatively small delay compared with the administrative burden of a trial. If contested fact hearings were taken too readily to erode the utilitarian value of a plea of guilty, there would be a risk of eliminating any incentive for some accused persons to plead guilty at all. There would also be a risk that accused persons would be tempted to make compromises in their instructions as to the facts so as to avoid losing the benefit of the discount.
For those reasons, I propose to allow a discount of 10% on the sentence for each offence.

Offender's personal circumstances

Mr Burns was assessed for the purpose of sentencing by Dr Richard Furst, a forensic psychiatrist of considerable experience. Mr Burns gave evidence confirming the psychiatric history taken by Dr Furst.
The relevant background may be summarised as follows. Mr Burns' mother was about 15 when she had him and was evidently unable to care for him properly owing to her youth and her addiction to drugs and alcohol. There was not enough food in the home and the mother did not send Mr Burns to preschool.
Mr Burns' maternal grandmother identified the neglect and took over Mr Burns' long-term care. After moving to live with her, Mr Burns was enrolled in school. He struggled with learning. He was also hyperactive and easily distracted. Dr Furst recorded that, although Mr Burns was not formally assessed or treated during his childhood or teens, the history he described is indicative of attention deficit hyperactivity disorder. He played representative football as a teenager. He was close to his grandmother, describing her as his "saviour" and "shining light".
Although it was plainly an improvement for Mr Burns to live with his grandmother, he was exposed to cannabis from an early age in her household. He began smoking cannabis himself at the age of 13 or 14. His use of that drug increased considerably when he was 15 and 16. He would also binge drink on weekends. On the positive side, he was also employed from an early age.
Mr Burns' grandmother suffered from renal failure and required dialysis in the last few years of her life. She died in 2016 when Mr Burns was 19. He was present at the time and tried to revive her but was unsuccessful. Dr Furst records, "he felt a huge sense of loss and grief after his grandmother's death and also felt guilty about his inability to save her".
Mr Burns' drinking and drug use escalated significantly after that time, which Dr Furst attributes to "a maladaptive means of coping with his feelings of grief and guilt". Dr Furst also explains that Mr Burns also has a biological propensity to drinking and drug use, having a number of family members who smoke cannabis or were alcoholics.
Dr Furst found no indications of a major mental illness or cognitive impairment. He expressed the opinion that Mr Burns meets the criteria for a diagnosis of alcohol and substance use disorder and attention deficit hyperactivity disorder. Dr Furst further expressed the opinion that, having regard to his early experiences of neglect and deprivation and extensive drinking and drug use in his family of origin, the principles stated by the High Court in the cases of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58 would appear to apply. I agree. Dr Furst also expressed the opinion that "unresolved feelings of guilt and grief in relation to his deceased grandmother, his biological propensity towards drinking/addiction and his underlying ADHD all contributed to and maintained Mr Burns' pattern of heavy drinking and cannabis use up to and including the time of the offending".
Mr Burns also relied on a psychological report prepared by Raymond Hudd, a consulting psychologist. Mr Hudd recorded a history broadly consistent with the history provided to Dr Furst. He also administered psychometric tests. Based on the history provided by Mr Burns, his presentation, the results of the psychometric tests and his clinical observations, Mr Hudd expressed the opinion that Mr Burns' symptoms were consistent with chronic complex post-traumatic stress disorder, borderline personality disorder and persistent complex bereavement disorder. He explained the link between those suggested diagnoses and Mr Burns' offending behaviour. To a large degree, Mr Hudd's report was written in general terms and not tied back specifically to Mr Burns. In saying that, I mean no criticism of Mr Hudd, who saw Mr Burns only once via "tablet" due to quarantine restrictions at the prison associated with the COVID 19 pandemic.
A friend of Mr Burns' grandmother, Aunty Alice Hinton-Bateup, gave evidence at the proceedings on sentence. She broadly corroborated the history given to Dr Furst and Mr Hudd. She said that Mr Burns' grandmother took him from his mother because she was concerned about his welfare and also concerned as to the risk that he would be removed from his mother's care by the government. Aunty Alice incidentally confirmed a matter that is well known in any event, that one of the sources of grief in many Indigenous communities (including hers) is the high death rate. She was asked when Mr Burns' grandmother died. She replied, "I can't remember the year because death's everywhere since…in the Aboriginal community we have like deaths every month".
Mr Burns' uncle also gave evidence about Mr Burns' childhood which broadly corroborated the history provided to Dr Furst and Mr Hudd.
I am satisfied on the strength of all of that evidence that Mr Burns experienced a childhood of profound deprivation. It is now well understood that the period of infancy is a significant formative period. It was during that period that Mr Burns suffered the most neglect. Although his experience living with his grandmother was obviously significantly better for him, it was during that period that he was introduced, too early, to the addictive behaviours for which he already had a biological propensity. Those challenges were compounded by the guilt and grief he experienced as a result of his grandmother's death in his presence. It is clear in my view that those factors contributed to his excessive consumption of drugs and alcohol and also impaired his capacity for calm, rational decision-making. I consider that his moral culpability for both offences is significantly reduced for those reasons.

Youth

Mr Burns was 21 at the time he committed these offences. I consider his youth also to be a significant factor mitigating his culpability for the offences. For the reasons I have explained, I am satisfied that the offences were impulsive and irrational, reflecting Mr Burns' relative immaturity and under-developed self-control. On the strength of his evidence, which I accept, I also consider that he was to a degree egged on by his co-offenders. That is not to excuse him from personal responsibility for his conduct but to recognise the significance of his age, which probably rendered him more vulnerable to peer pressure and poor decision-making.
Youth is also a factor that warrants giving greater weight to the sentencing purpose of rehabilitation.

Good character

As already noted, Mr Burns has no prior criminal history apart from traffic offences (which have no relevance in the present context).
There was other evidence that Mr Burns is a person of good character. Auntie Alice said Mr Burns always respected people and was a lovely boy with a beautiful personality. She never saw him being violent. His uncle gave evidence in which he described him in similar terms.
Mr Burns has a fiancée who has known him for most of his life and has been in a serious relationship with him for nearly four years. She describes him as a "gentle giant" who is a soft-spoken family man with a heart of gold. She said that he has always worked fulltime and always looked after family and friends before himself. She watched him struggle with drug and alcohol addiction and depression and anxiety following his Nan's death and believed his offences were drug-fuelled and reflect a single, momentary mistake with tragic consequences.
The evidence also included a reference from Mr Burns' former employer, who said he has always been a keen worker, often starting in the small hours of the morning and working through until late at night. The employer said he had never found Mr Burns to be unkind, unfriendly or aggressive. He described Mr Burns as the best employee he ever had, an accolade he did not confer lightly.
It goes without saying that Mr Burns did not display these characteristics on the night of the offences. His good character is nonetheless properly taken into account as a mitigating factor in determining the appropriate sentence for the offences.

Remorse and prospects of rehabilitation.

I am satisfied that Mr Burns is unlikely to re-offend and has good prospects of rehabilitation. I accept that he is genuinely remorseful for his conduct. That finding is supported by Dr Furst's report and also by my own observation of Mr Burns throughout the hearing.
Dr Furst's report also provides support for a finding that Mr Burns has good prospects of rehabilitation. Dr Furst noted that Mr Burns does not have a major mental illness, presented as prosocial, has a good attitude towards work and study and has no prior history of serious violence. Dr Furst expressed the opinion that those factors suggest "it is likely he will engage in recommended work, education and treatment programs whilst in custody, giving him the best chance of making a successful adjustment when released to the community on parole". Dr Furst recommended a number of treatments and programs which would assist in supporting Mr Burns' rehabilitation.
Mr Burns' prospects of rehabilitation are also improved by the fact that he has the ongoing support of his fiancée, his uncle (a reformed alcoholic who has been sober for 20 years) and his former employer.

Conditions of custody

Mr Burns has been in custody since his arrest on 12 March 2020, coinciding with the onset of the COVID-19 pandemic. He gave evidence that, as a result of special arrangements in prisons to address the risk of spreading the disease, he has been allowed no visitors and has had many substantial periods of time where he was kept in his cell 24 hours a day. It has long been accepted that harsher conditions of imprisonment due to isolation (for example in the case of a foreign prisoner) warrant some recognition: R v Huang [2000] NSWCCA 238 at [18] (Adams J). On the same reasoning, it has been accepted that "the COVID-19 pandemic and its implications for the conditions of incarceration are matters that may and often should be taken into account on sentence": Doudar v R [2021] NSWCCA 37 at [72] (Hoeben CJ at CL, Bellew and Wright JJ agreeing) citing Scott v R [2020] NSWCCA 81 at [166]; McKinnon v R [2020] NSWCCA 106 at [32]; see also Toller v R [2021] NSWCCA 204 at [25] (Beech-Jones J, Macfarlan JA and Davies J agreeing). The conditions imposed on Mr Burns as a result of the pandemic have had the same isolating effect. He has now spent almost 2 years in custody in those conditions, receiving no visitors and spending long periods alone in his cell. I consider that warrants some recognition in his sentence.

Comparable cases

I have been assisted by considering two decisions of Hamill J helpfully drawn to my attention by the Crown Prosecutor in which his Honour was concerned with sentencing for murder by a single stab wound: R v Archer [2021] NSWSC 1485 and the decision in Brooks to which I have already referred. The circumstances in Brooks have a great deal in common with the present case. The decision is also of assistance in that it includes a survey of other single stab wound cases.
In Brooks at [76], Hamill J explained his intention to set a lengthy total sentence giving weight to matters such as denunciation, deterrence, retribution and harm to the victims. His Honour noted that those factors are also relevant to the determination of the non-parole period but gave more weight to the promotion of rehabilitation for that purpose. His Honour noted in that context that release to parole at the conclusion of the non-parole period is by no means guaranteed.
I would respectfully adopt that approach as one that achieves a just and fair balancing of the competing purposes of sentencing. I propose to impose an aggregate sentence, as allowed under s 53A of the Crimes (Sentencing Procedure) Act. As both offences involved the same victim and there is very substantial overlap between the elements of the offences, there will be a substantial degree of concurrency reflected in the aggregate sentence. I am required to indicate the sentences I would have imposed had I imposed separate sentences. For the offence of murder, I would have started with a term of imprisonment for 22 years giving a term of 19 years and 9 months after allowing the discount for the plea. For the assault with intent to rob causing wounding, I would have started with a term of imprisonment for 7 ½ years giving a term of 6 years and 9 months after allowing the discount for the plea. I propose to set an aggregate non-parole period that will reflect individual non-parole periods considerably shorter than the standard non-parole period for each offence. That is because I have found each offence to be below mid-range, because of Mr Burns' strong subjective case and to reflect the harsher conditions of his custody to date, which are likely to continue for some time at least. I have relied on those same considerations and my other findings in this judgment as warranting a departure from the statutory ratio of the non-parole period to the balance of term.
In the result, Mr Burns will be sentenced to an aggregate term of 21 years with a non-parole period of 14 years.
Jake Burns, please stand: 1. You are convicted of the murder of Erol Tokcan and of assaulting Erol Tokcan with intent to rob causing wounding. 2. For those offences, I sentence you to an aggregate sentence of imprisonment of 21 years with a non-parole period of 14 years commencing on 12 March 2020 and expiring on 11 March 2034 and a balance of term of 7 years expiring on 11 March 2041. 3. The first date on which you will be eligible for release to parole is 11 March 2034. 4. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offence of murder and that you may be subject to its provisions at the end of the sentence I have imposed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2022

Crimes Act 1900(NSW)ss 18(1)(a), 98

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