R v Cakovski [2005] NSWSC 1001 | Case summary

SENTENCE 1 HIS HONOUR: The offender, Daniel Cakovski, pleaded guilty upon arraignment before Barr J on 5 May 2005 to the crime of the manslaughter of Eugene Victorovich Petroff at Strathfield on 20 May 2001. The matter was fixed for hearing before me on 24 June 2005, but on 21 June 2005, on the application of Mr Terracini of Senior Counsel for the offender, I adjourned the sentencing proceedings until 19 August 2005. That date was subsequently altered to 26 August 2005. The purpose of the adjournment was to afford Mr Terracini the opportunity to introduce medical evidence on behalf of the offender. 2 A statement of agreed facts was tendered before this Court as Exhibit A. The content of that statement I now record: "For the purposes of these criminal proceedings, the abovenamed Accused, upon the advice of his lawyer, and the Crown have agreed upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW): 1. Eugene Petroff was pronounced deceased at 8.15 am on 20 May 2001. The cause of death was the combined effect of four stab wounds to the chest and an incised wound to the face. The two most significant wounds were one, with a depth of about 80 mm, penetrating the right lung, and another, with a depth of about 120 mm, passing through the heart. All the wounds were inflicted by the accused between about 5.25 am and 5.50 am on 20 May 2001, in Parnell Street, Strathfield, near Strathfield Railway Station. 2. The deceased had attended a reunion at the Russian Club in Strathfield commencing at about 7.30 pm on 19 May 2001, during which he had consumed alcohol. There was evidence that, by the time he left the club, he was considerably affected by alcohol, and this was confirmed by a very high blood alcohol level measured after his death. Between 11 pm and midnight on 19 May 2001, the deceased had assaulted a guest at the reunion, George Logounov, and had threatened to kill him. The deceased asked Logounov 'How would you like a knife in your head? I'm going to kill you like I killed the other three people' . 3. On 19 September 1978 the deceased murdered three people. The accused was not aware of this at the time of the incident with the deceased. On the date of the murders, the deceased, then aged 31, had been involved in dealing in narcotics and believed that he had been cheated by certain of his associates in the drug trade. As a consequence, he had shot one person at Wetherill Park and had then driven to Burwood where he shot two other people. At the time of the murders, the deceased was affected by alcohol. 4. The deceased left the club at about 2 am on 20 May 2001, and after sitting for some time with two other men on a bench near the entrance to the Railway Station, he was left by them at the station between about 2.30 am and 3.00 am. 5. The accused had met a friend Sonja Sekulovska at Bankstown RSL Club on the evening of 19 May 2001, and had then gone with her in her car to Kings Cross. Both she and the accused gave evidence to the effect that, shortly after the commencement of this journey, the appellant consumed some Rohypnol pills; and that at Kings Cross they purchased and then injected some heroin. 6. At about 2.10 am on 20 May 2001, Constable Venables observed Ms Sekulovska's car make a left turn in Stanmore contrary to a one-way sign. The car was driven by the accused. Constable Venables asked the accused to produce his licence and identification, but the accused was unable to produce either. In a statement prepared by Constable Venables on 20 June 2001, he stated that at this time 'I conducted a search of him. No item found on his possession'. The accused was then taken to Newtown Police Station and issued with a traffic infringement notice. The accused and Ms Sekulovska then went to Strathfield in Ms Sekulovska's car. 7. Video surveillance showed the car in The Boulevard, Strathfield, in the vicinity of the corner of Parnell Street, at 5.07 am on 20 May 2001; and showed both the accused and Ms Sekulovska at various times between 5.07 am and 5.25 am leaving the car and entering a 7-Eleven Convenience Store on this corner. Ms Sekulovska spoke to the deceased in the convenience store, at a time when the accused was outside or in the car. Ms Sekulovska, after she had spoken to the deceased in the convenience store, went back to the car, and she and the accused agreed that she would lure the deceased into Parnell Street so that they could rob him. 8. Ms Sekulovska returned to the 7-Eleven Convenience Store and later walked with the deceased into Parnell Street. Some time later the accused approached Ms Sekulovska and the deceased. 9. There was a fight between the accused and the deceased, and Ms Sekulovska ran away. She got into the car. As she started to drive off she saw the accused running towards her. The accused got into the car and they both drove away. 10. The accused was arrested on the morning of 20 May at Condell Park, but not charged with murder on that occasion. The knife used to stab the deceased was found nearby: this knife had a blade about 10 cm long. Upon examination, the knife was found to have a fingerprint of the accused on it and the same DNA profile as that of the deceased. 11. On 16 June 2001, pursuant to a warrant, police monitored a conversation between the accused and Ms Sekulovska, which included the following exchange: Accused: 'I'm the one who killed the poor cunt.' Sekulovska: 'Did you mean it?' Accused: 'No. Yeah I did. No, I didn't probably…you know when I think about it I spin out, I think to myself 'Fuck I'm a murderer, that's fucked mate'. Sekulovska: 'Fucken asshole tried to kick you.' Accused: 'I've still got the scars on my legs from kicking…they're all from that son-of-a-bitch and he laughed at me. He goes, "the knife isn't even sharp" and I went "yeah" and I go whack, whack, whack - I stabbed him about six times.' Sekulovska: 'It says that he was stabbed in the face and chest.' Accused: 'No, I slashed the face from there open…if they found him earlier, he might not have died. When I think about it, man I shouldn't have shanked him, shouldn't have stabbed the poor cunt.' 12. The accused was charged with the murder of Mr Petroff on 19 June 2001. The accused was interviewed on videotape, but declined to continue with the interview after he disclaimed all knowledge of the death of Mr Petroff. He declined to take part in an identification parade. 13. At the first trial, the accused gave his account of the incident with the deceased. The accused said that he approached the deceased and Ms Sekulovska. The deceased told him to leave and when he refused, the deceased kicked him in the shin and in the groin. The deceased said; 'Now you're gonna die. I'm gonna kill you… Now I'm gonna kill you.' The accused said that he was then on 'all fours' on the ground and that he 'dry retched'. The accused then said that he saw the knife on the ground which he grabbed and removed it from the sheath at which stage the deceased said: 'What do you think you're gonna do with that?…no matter what you do, you're gonna die.' The accused stated that he thought he was going to die. He said that he got to his knees and swung the knife in the direction of the deceased and then got to his feet, and that the deceased 'came' at him three times, despite the accused attempting to ward the deceased off with the knife, and that 'all I knew was that this man (the deceased) was going to kill me…I'd swung the knife at him to try and keep him away from me, and no matter what I did…he wouldn't leave me…I'd try and step back and he'd attack at me again, and by this stage I didn't know what to do. I swung the knife in the air just towards his face and it got him, it got him in the face and he kind of looked shocked, you know 'you cut me' and he grabbed his face and he started moving back. Finally he took four, five steps back and I just - I left. As soon as he moved back I took off. That was my first chance to get away. I didn't run, I limped because I couldn't run…'" 3 The offender stood trial charged with the murder of the deceased, having pleaded not guilty to that charge. On 3 July 2002 the jury returned a verdict of guilty on the charge of murder, and the offender was subsequently sentenced to a term of imprisonment of eighteen years with a non parole period of twelve years. (There was some adjustment for time spent in custody which it is not immediately necessary to record.) 4 The offender appealed to the Court of Criminal Appeal and that appeal was successful. The conviction was quashed and a new trial was ordered. For reasons that are not altogether clear, the Crown accepted a plea of guilty to manslaughter in March 2005 and an indictment was presented accordingly. Before me on 26 August 2005, the Crown said: "The plea was taken upon instructions" (T 1, 26 August 2005). The basis of acceptance of this plea appears to have been that this was a case of excessive self defence. The Court is required to sentence the offender upon this basis. 5 It is to be noted that four knife wounds were inflicted by the offender, one of them penetrating the right lung and the other passing through the heart. Having inflicted those wounds, the offender took flight. 6 It is clear from the agreed statement of facts that the offender approached the victim in pursuance of the plan to rob him. It was a plan that went wrong and resulted in the taking of a human life. The killing involved the use of a knife and it has to be regarded as a serious crime. Having inflicted the serious wounds that caused death, the offender took no steps to see that aid reached his victim. 7 The maximum penalty provided for by s 24 of the Crimes Act for the crime of manslaughter is imprisonment for twenty-five years. 8 The offender was born on 30 December 1981, so that he was nineteen years of age when he committed this crime and he is presently twenty-three years of age. He has a criminal record, but the first offences as an adult, although they were committed on 30 August 2000, did not attract punishment until a term of imprisonment of two months was imposed on 1 November 2002. Those offences for which concurrent sentences were imposed were drive a conveyance taken without consent, refusing to allow a sample of blood to be taken and failing to provide a sample of urine. Fines for traffic offences were also imposed at that time. On 11 May 2001, eight days before the crime of manslaughter, the offender was charged with resisting an officer in the execution of his duty and driving whilst suspended. For those matters, he was placed upon a two year bond on 8 August 2002. A further offence committed on 11 May 2001 led to a term of imprisonment being imposed on 8 August 2002 for a term of three months. That was an offence of driving recklessly. The offender's record further reveals that in May 2000 he was charged with possession of equipment for administering prohibited drugs and self administering. He was dealt with by fine for those matters. Then, on 11 May 2001 he was charged with shoplifting and was sentenced to one month imprisonment on 1 November 2002. On 20 May 2001, the day after the commission of the crime presently under consideration, the offender was charged with being armed with intent to commit an indictable offence, and on 10 December 2002 he was sentenced to imprisonment for a term of two years with a non parole period of one year six months. 9 I have set out the detail of that criminal history in full. However, I am mindful of the fact that there was no offence of significance attracting a term of imprisonment prior to the date upon which the offender caused the death of the deceased. The real significance of the record is that there were periods after the offender was taken into custody during which he was serving sentences for other matters. The starting date for the sentence must be adjusted to take account of this. 10 Two pre-sentence reports have been introduced into evidence. The earlier report, Exhibit F, bears date 29 November 2002. It refers to a time at which the offender first came into contact with the Probation and Parole Service in May 2001, at that time for driving offences. However, there is some reference in that report to the incident leading to the death of the deceased. The offender asserted to the author of the report that he acted in self defence, but said that he had been carrying the knife used because five days earlier he had been stabbed in the left arm, where the author observed obvious scarring. The offender said that he carried the knife as a form of protection. 11 The more recent Probation and Parole report tendered bears date 26 August 2005. This report discloses that the offender is a single man who is in a relationship which his fiancée described as "close and stable" The offender's mother and sister spoke to the author of the report in relation to the offender in endearing terms, but adverted to past associations of the offender with unsavoury individuals. The earlier report referred to the offender's long history of drug use, which commenced with cannabis at the age of thirteen and progressed to ecstasy by the age of fourteen. At the age of fifteen, the offender had started to use heroin. The later report discloses that the offender has had a stormy period in custody, having been found guilty of six institutional misconduct charges since he was first imprisoned in 2001. The offender's misconduct has, according to the report, extended to threatening staff and other inmates. He has been aggressive, threatening and antagonistic, although it is suggested that there has been some change in attitude. The offender became interested in Islam, to which he claims to have converted over three years ago. He perceives himself since that time to have become more focussed and clear-headed. The imam who is the spiritual leader for the Muslim inmates in custody has noted improvement in the offender's attitude. 12 The author of the report wrote (at pp 6-7 of the report dated 24 August 2005): "Mr Cakovski initially presented as an angry and impulsive young man who tries hard to impress those around him whom he admires, or whom he sees as beneficial to him. He also appeared somewhat immature with a tendency to minimize his responsibilities. However his time in custody appears to have put a crack in the drug using lifestyle he had been in for some 6 or 7 years, and caused him to pause and take stock of the direction in which he was heading. Although, possibly due to his immaturity and desire to impress those with influence in the criminal world, he has continued to make poor choices in custody and display aggression, which has led to his lengthy placement in segregation. Despite this, enquiries with a number of sources and even his presentation during interviews for this report, do suggest that he has recognized a need to alter his behaviour and in fact, he has already commenced making some significant changes. Mr Cakovski has also shown an eagerness to utilize the resources around him, such as education staff, the psychologist and the Imam, to assist him in making changes in his life. However the overall picture appears to be that of an impressionable young man who has been entrenched in unhelpful and damaging behaviours, and who is now on a steep learning curve and attempting to find his way out. Therefore it would seem imperative that while he is in custody, he participate in programmes on offer such as drug and alcohol, anger management and the Violent Offenders Treatment Programme, to better equip him and assist him in continuing to change before he is released back to the community." 13 The offender gave no evidence on the hearing on sentence. The evidence tendered on his behalf comprised two reports, being a report of a psychiatrist, Dr Carne, and a report of a psychologist, Mr Smith. 14 Dr Carne assessed the offender for the first time on 30 September 2002 and for the second time on 4 May 2005. Dr Carne obtained a history of drug abuse commencing at the age of thirteen and also abuse of alcohol commencing at the same time. The content of the report indicates that Dr Carne was largely dependent upon the history taken from the offender. He noted that the offender expressed remorse for the death of the deceased, an expression which has not been repeated by the offender in evidence in this Court. 15 It is to be noted when Dr Carne saw the offender recently on 4 May 2005 the offender gave what the doctor remarked was an almost identical account of the alleged offence. The offender told Dr Carne that the knife which he used in self defence was a knife in his possession which he "pulled out" in self defence and it fell to the ground and he picked it up and used it in self defence. 16 The offender told Dr Carne he had the support of his parents and would be provided with work by his father when released from custody. Neither parent gave evidence. 17 On the occasion of his first assessment, Dr Carne formed the opinion that the offender was suffering from attention deficit hyperactivity disorder, which led to impulsive behaviour and poor concentration. Dr Carne did not revisit that diagnosis in the later report. 18 Mr Smith interviewed the offender on 30 August 2002. I have considered his report of 1 September 2002. Mr Smith's report was largely based upon matters of history obtained from the offender, but I record Mr Smith's impressions: "Mr Cakovski impresses as a man of adequate interpersonal and social skills. He is a man who clearly has developed his young adult personality negotiating his existence on the streets and in the drug subcultures. He impresses as undersocialised and emotionally immature. Reading between the lines there is a very high likelihood that he has progressed into adulthood suffering ADHD and this is the reason for the early parental management conflicts with him. He has had little opportunity to allow his underlying personality to emerge from his early adolescent rage and later adolescent haze of drug addictions. He presents as a man whose adult identity is either poorly or under formed. He lacks definition about himself, his ambitions and his identity. It would seem that he has lived his life avoiding rejections, failure and criticism. He seems to have little understanding of or insight into his emotional life or his underlying needs. He impresses as having much adaptive intelligence although he seems to be concrete and literal in his thinking processes. He accounts for his lot in life as the result of the ostracisating of his parents when he was aged twelve years and then having to rely on his instincts to survive over the years. He accounts for his poor adjustment and lifestyle over the past four yeas as the result of narcotic and other dependencies. He is informed about his responsibility in relation to his offending, his current life situation and the legal processes he is facing." 19 Mr Smith concluded: "Given the history provided in interview, the prognosis of Mr Cakovski will be heavily dependent on him undertaking a longer-term residential drug counselling programme. He has some supports in his family however the extent of these could not be gauged. He presents as being concerned about the direction of his life and sees this point as a watershed with the enforced changes via his incarceration. He argues that his adjustment in custody has been positive however it is vitally important that he undertake long term rehabilitation if any confidence is to be gained in his ongoing adaptation." 20 I do not derive particular assistance from the reports of Dr Carne or of Mr Smith. These reports are largely based upon matters of history obtained from the offender and, as I pointed out to Mr Terracini in the course of the hearing, I was not minded to be influenced by self-serving assertions in matters of history given by the offender unless those assertions were verified by evidence in the witness box. No such evidence was given. 21 Section 3A of the Crimes (Sentencing Procedure) Act 1999 defines the purposes for which a sentence may be imposed as being: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 22 That section applies in this case notwithstanding the fact that the offence was committed prior to the introduction of the section into the statute. In any event, s 3A only records what were considered to be well-settled objectives in sentencing prior to the introduction of the section. 23 I remind myself of the provisions of s 21A of the statute which also apply in this case. 24 The Crown has referred to the use of the knife as an aggravating feature of the offence: s 21A(2)(c). This is a feature to be taken into account in weighing the gravity of the crime. The Crown submitted that the offence was one that should be regarded as having been committed in company. However, whilst the offender's companion and the offender had agreed that the companion would lure the deceased to a place where they could rob him, the companion did not participate in the fight between the offender and the deceased but ran away. 25 It would seem that the offender was on bail for a number of minor matters at the time the offence was committed, and this is a matter to be taken into account under s 21A(2)(j). 26 It is proper to have regard to the fact that the offender attended the location where the fight occurred pursuant to the plan made with his companion to rob the deceased, and the offender attended that location armed with the knife used in the attack. That he was so armed does not emerge directly from the agreed statement of facts, where, in para 13, the offender refers to observing the knife on the ground. In written submissions, the Crown invited the Court to proceed upon the basis that the offender was armed with the knife at the time that he approached the deceased and, of course, Mr Terracini had the opportunity of responding to that. In each of the reports tendered by Mr Terracini there is recorded as a matter of history the offender's prior possession of the weapon before he picked it up from the ground. The offender told Mr Smith that he had secreted the knife in his sock, and that when the deceased kicked him the offender, whilst on the ground, "grabbed my knife" (see para 2 of that report). Dr Carne recorded that the offender told him in September 2002 that he had a fishing knife and that when the deceased kicked him in the groin his knife fell to the ground and he grabbed it and swung at his assailant (p 4 of the longer report of 18 July 2005). Then, in the second report of 18 July 2005 referable to the further consultation on 4 May 2005, Dr Carne recorded that the offender told him that the deceased threatened to kill him and started kicking him, that the offender pulled out his knife in self defence, and when the offender grabbed it the deceased continued kicking and threatening the offender, and that the stabbing took place in self defence. According to Exhibit F, as earlier observed, the offender told the author of the Probation and Parole Report of 22 November 2002 that he carried the knife for protection, having himself been stabbed in the left arm five days previously. 27 It is to be taken into account in the offender's favour that he pleaded guilty to the crime of manslaughter on 29 March 2005, that date having been fixed as the trial date by Barr J on 21 February 2005. The offender is to be given credit for the utilitarian value of that plea, and Mr Terracini submitted that a twenty-five percent discount of the sentence which would otherwise have been imposed is warranted by reason of that plea. Such a discount in my opinion would be an excessive one. 28 The offender stood trial for murder, having pleaded not guilty on the presentation of an indictment on 18 June 2002. He was convicted by the jury on 3 July 2002 and then pursued an appeal to the Court of Criminal Appeal which was successful. That court ordered a new trial on 19 August 2004. The first discussions concerning a plea of manslaughter occurred in February 2005. It was accepted that there had been no approach to the Crown concerning the plea ultimately accepted prior to the first trial. 29 I do not consider in the circumstances of this case that the plea entered evidences remorse. By entering the plea the offender eliminated the risk of a conviction for the crime of murder at a second trial. Although the offender expressed remorse to Dr Carne and to Mr Smith, and he expressed his regret as to what had happened in the conversation referred to in the agreed statement of facts, the offender remained silent in this Court. I do not find genuine remorse as a feature to be taken into account in the offender's favour. 30 Nevertheless, the plea has utilitarian value. The plea was late, and whilst I accept that it was entered into when the Crown determined to accept it, the possibility of a plea was not raised until very shortly before the trial was set to commence. 31 In all the circumstances, I propose to allow a discount for the utilitarian value of the plea of approximately fifteen percent. 32 I have referred earlier to the offender's record and to his past addiction to drugs and alcohol. Having reflected on such evidence as is available, and notwithstanding what the author of the pre sentence report wrote on 24 August 2005 (see para 12 above), I am not persuaded that the offender's prospects of rehabilitation are particularly favourable. 33 Mr Terracini submitted that I should find special circumstances. The offender is a relatively young man and he has been in custody continuously since 19 June 2001, albeit for a considerable proportion of that period in relation to other matters. Mr Terracini further submitted that the offender will require a lengthy period of supervision when he is released. On balance, having regard to the offender's age and the time spent in custody already, I am persuaded that special circumstances exist for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. However, the adjustment of the ratio will be a very minor one, because I consider that the offender should not have the opportunity of serving any lesser period in custody than the minimum term I am about to impose. This is because of the necessity to recognise the gravity of his crime. Moreover, I consider the sentence I am shortly to put in place will afford an adequate opportunity for release on parole. 34 It is, of course, well recognised that the appropriate range of sentence in any individual case where the crime of manslaughter is concerned is extremely difficult to ascertain: see Regina v Blacklidge (unreported, NSWCCA, 12 December 1995). 35 In Regina v Trevenna 149 A Crim R 505, the Court of Criminal Appeal entertained a Crown appeal against a sentence imposed in a case of excessive self defence. The appeal was unsuccessful, but in Trevenna a review was undertaken of sentences in manslaughter cases, in particular where excessive self defence was involved. 36 In his judgment in Trevenna Barr J identified three sentences imposed for self defence manslaughter since the introduction of Pt II Div 3 of the Crimes Act: Regina v Cioban [2003] NSWCCA 304; Regina v Nguyen [2002] NSWSC 536; and Regina v Scott [2003] NSWSC 627. Trevenna was itself such a case, and since judgment was delivered in Trevenna there have been at least two other sentences in this category: Regina v Vuni [2005] NSWSC 184 and Regina v Ahmad [2005] NSWSC 911. In Cioban the sentence imposed at first instance was a sentence of eight years with a non parole period of five years. That was reduced on appeal to a head sentence of six and a half years with a non parole period of four years. The sentence imposed in Nguyen was a sentence of seven years with a non parole period of three and a half years. The sentence imposed in Scott was a head sentence of five years with a non parole period of two and a half years. The sentence imposed in Trevenna was a head sentence of seven years six months, with a non parole period of four years six months. The sentence imposed in Vuni was a head sentence of ten years with a non parole period of seven years six months. The sentence imposed in Ahmad was nine years four months, with a non parole period of six years. In the cases abovementioned, other than Cioban and Vuni, the offenders had pleaded guilty and this would have influenced the sentences imposed. 37 The number of sentences above reviewed are too few to establish a tariff. That was a view expressed by Barr J in Trevenna (at 532 [107]), and it is a view that I currently hold. Moreover, it remains of significance that each case depends upon its own facts and circumstances. Here, what attracted the offender to the deceased was an intention to rob him, and the offender approached his victim armed with a knife. 38 Having regard to the date of the commission of this crime, the now repealed s 44 applies. Having reflected upon the particular facts and circumstances of this case, I have concluded that but for the plea an appropriate sentence would have been one of nine years imprisonment by way of head sentence. Allowing the discount for the plea, I arrive at a sentence of seven years eight months. I intend to set a non parole period of five years eight months. 39 It is agreed that the offender is to be given credit for the time already spent in custody exclusively in relation to this offence. Calculated to 7 October 2005, that period is two years 162 days. I intend to backdate the sentence in order to give the required credit. 40 Accordingly, I pass sentence as follows: I sentence the offender to a term of imprisonment of seven years eight months, commencing 28 April 2003 and to expire on 27 December 2010. I set a non parole period of five years eight months. I specify 27 December 2008 as the first date upon which the offender will be eligible for release on parole. **********

R v Cakovski

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