R v Yusuf AYTUGRUL

Supreme Court of NSW|2009-03-27|Before: Hulme J

CITATION : R v Yusuf AYTUGRUL [2009] NSWSC 275

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

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

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

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

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

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

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

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

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

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

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

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

6 The offender visited Ms Bayrak on one occasion at the Merrylands address. His son was with him and he used the pretext of saying that his son wanted to play with her daughter. Ms Bayrak later told her sister that she was quite surprised at this visit and that she had asked the offender how he had found out her address. She said that he replied, "I have my ways of finding things out. I can find things out whenever I want." She told another family member that the offender spoke of still loving her and wanting to resume their relationship. She, however, told him that she was not interested.

7 On 29 June 2005 he had a letter and a poem published in Turkish News Weekly. They were directed to Ms Bayrak. The letter expressed deep sorrow concerning the ending of their relationship. The poem had the title "I Can Not Give Up". It included the following (quoting from a translation from the Turkish language): Even if you don't want to remember my name, Don't want to hear my voice Even if you say give up, I can not give you up Even if you say forget, I can not forget the beautiful Days we lived Even if you cry all your hate, say give up, I can not give up 8 It is clear from what Ms Bayrak said to members of her family that she did not want any contact from the offender. She complained that he was following her. There was also evidence of property damage outside of the units at Merrylands, including to her car, but the evidence is insufficient to support a conclusion that the offender was responsible.

9 The property damage at Merrylands occurred in the period August to October 2005. On 25 October 2005 Ms Bayrak moved to a unit in Betts Street, Parramatta. She went to great lengths to keep this address confidential out of fear of further acts of harassment. On 4 November 2005 two men attended her old address at Merrylands in the early hours of the morning inquiring about Ms Bayrak. They were told that she no longer lived there. There is no evidence identifying either man as the offender. However, and again it seems to be more than coincidence, later on that day he rang his contact at Centrelink and found out Ms Bayrak's new address in Parramatta.

10 There was telephone contact between Ms Bayrak and the offender in November. It included a text message he sent to her in which he referred to her blaming him for her number plates being stolen. Ten minutes later he sent her another message in which he said, "Alright, understood, there's a god above. What can I say. I pray for your health". The Crown contended that this was a threat, which I accept it was.

11 On 23 November the offender made a phone call to the Centrelink "Report a Fraud" hotline and reported Ms Bayrak for alleged fraudulent conduct in relation to welfare payments.

12 On 25 November the offender twice called Ms Bayrak but on each occasion she did not answer.

13 On Saturday 26 November Ms Bayrak's daughter was being looked after by her sister, Ms Semra Bas. At 8.04pm Ms Bayrak telephoned Ms Bas and told her that she was coming over to collect her daughter. That was the last time she was known to be alive. It was common ground that she was murdered a very short time after making that telephone call. Her body was found lying just inside the front door of her unit at around midday the following day.

14 There was a lengthy police investigation that culminated in the arrest of the offender on 5 June 2007. He has been in custody since.

15 The offender was aged 40 at the time of the offence and he is now 43.

16 He has no previous convictions and, to that extent at least, he was of prior good character. The law requires that I take these matters into account as mitigating factors.

17 The offender did not give evidence in the trial or in the sentence proceedings. I do, however, have a report by Dr Stephen Allnutt that sets out some of the offender's background. He was born in Turkey and completed his high school education at the age of 18. His family were loving and supportive. He came to this country at the age of 21. He has worked as a taxi driver and in factories. He was married between 1994 and 1998 and there was one son born to this relationship who is now aged 11. He has no history of alcohol or drug abuse and he has not experienced any medical or mental health issues of note. He has been receiving visits in gaol from family and friends. He is described as being anxious and manifesting some symptoms of depression in the custodial environment, although Dr Allnutt declined to diagnose a major depressive disorder.

18 Dr Allnutt was unable to offer any opinion as to future risk because the offender continues to deny the offence. The doctor was unable to say anything about the offender's prospects for rehabilitation for the same reason. I note that he is reported to have denied some matters to Dr Allnutt that were either conceded at the trial or were the subject of overwhelming proof but I need not dwell on that.

19 The Crown has submitted that the offender should be imprisoned for life. That is the sentence that I must impose if I am satisfied that the offender's "level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence": s 61(1) Crimes (Sentencing Procedure) Act 1999.

20 I can say at once that I am not satisfied that "community protection" is a relevant consideration in making this determination. Certainly the circumstances attending the offence were extremely violent and brutal. However the offender has no previous convictions, there is no suggestion of any prior violent conduct, there is an absence of any mental disorder or psychiatric condition, and Dr Allnutt was not able to make any assessment of future risk. In these circumstances I am not satisfied that the offender would present a danger to the community when released from prison many years in the future solely upon the basis of this single incident, albeit one of such extreme violence. The Crown submitted that the denials made by the offender to Dr Allnutt of various incidents relating to his conduct towards the deceased in the six months before the murder point to future dangerousness but I am not satisfied that is so.

21 What then is the offender's "level of culpability"? One matter that bears upon that issue is whether the killing was planned or spontaneous. The Crown submitted that I should find that it was planned in that there was the preceding campaign of stalking and intimidation and that on the night of the murder the offender went to Ms Bayrak's home armed with a knife. There was evidence that a neighbour saw a man outside the front door of Ms Bayrak's unit with a plastic bag in his hand. It is accepted that this man must have been the offender. The Crown invites the inference that a knife was in the plastic bag. However, Ms Davenport, senior counsel for the offender, referred me to the lack of evidence to establish that a knife already within the unit was used as the murder weapon. That weapon has never been recovered. In my view the Crown's contention is probably correct. Why else would the offender be carrying a bag? If he took a knife to the unit, it would follow almost inevitably that he planned to kill Ms Bayrak because that is something that must have happened very soon after he gained entry to the unit. However, because it would be a matter of aggravation to find that the murder was planned I would have to be satisfied beyond reasonable doubt. There remains in my mind an element of doubt because of the failure to exclude the possibility that a knife already in the unit was used and the fact that the murder weapon was not found. Accordingly, I cannot take into account that the offence was premeditated.

22 What I am satisfied of is that the offender was obsessed with Ms Bayrak and that this obsession particularly soured in the weeks leading up to her murder. He must have been well aware that Ms Bayrak was not interested in having any contact with him and was actively avoiding it. He knew she was in fear of being followed by him. He went to significant lengths to find out her new address, using a contact with access to confidential government information. He sent her a threatening text message and he reported her for having allegedly committed fraud. I interpolate here that doing something with the intention of getting her into trouble is inconsistent with planning to kill her. I am satisfied he went around to her home that Saturday evening intent on confronting her and furthering in some way his campaign of intimidation and harassment. Something occurred in the course of that confrontation - and it must have happened quite quickly - that caused him to vent his feelings in the most violent, callous, brutal and inhumane way. She was an utterly blameless victim. It is also a significant matter that he committed many more violent acts upon her than would have been necessary to simply kill her.

23 The fact that the offence occurred within the deceased's own home where she was entitled to feel safe is an aggravating circumstance. So to is the fact that a weapon was used, although given that this is a common feature of this type of crime it is of minimal significance. Another relevant matter is that the offender was well aware of Ms Bayrak being a single mother. I am satisfied that he knew that killing Ms Bayrak would cause ancillary harm to an eight year old girl in depriving her of her mother, but he went ahead and killed nonetheless: see R v Lewis [2001] NSWCCA 448 at [67]; Aslett v R [2006] NSWCCA 360 at [37]. A final matter to note in relation to these matters bearing upon the offender's level of culpability and the objective seriousness of the offence is that this is a case that quite clearly involved an intention to kill and nothing less. That is generally regarded as a consideration tending to greater objective seriousness: see Apps v R [2006] NSWCCA 290 at [49].

24 To conclude, I am satisfied that the offender's level of culpability for the offence is quite significant. However I am not satisfied that it is so extreme that a life sentence must be imposed. Putting that in slightly different terms, I am not satisfied that this case falls into the worst case category.

25 I must then consider whether the objective seriousness of the offence falls within the middle of the range. Ms Davenport did not resist such a finding. If the offence is at that point in the range, consideration must be given to whether the standard non-parole period should be imposed. There is a very wide range of circumstances in which the crime of murder can be committed. Having regard to the circumstances I have just been describing I have concluded that this case falls slightly above the middle of the range. The fact that I have not been satisfied to the required standard that there was planning involved does not necessarily require a finding that the offence is below that point in the range: see Versluys v R [2008] NSWCCA 76 at [34]. The effect of the finding that the offence is above the middle of the range is that I am not required to impose the standard non-parole period. Nevertheless, that period, along with the maximum penalty, remain relevant as benchmarks against which to assess the appropriate sentence to be imposed.

26 It is necessary to consider all of the other features of the case in order to determine where within the range of sentences that would appropriately reflect the objective seriousness of the offence I should identify the appropriate sentence. There are the mitigating features I referred to earlier of no previous convictions and prior good character. These are matters of some significance for a man who has attained the age of 40 and is experiencing imprisonment for the first time. I am unable to find in the offender's favour that he is remorseful, that he has good prospects for rehabilitation, and is unlikely to re-offend, given that he continues to deny his guilt. A finding in respect of the latter 2 matters would only be possible if there was a greater degree of understanding of the reasons for his offending conduct. I am not persuaded to accept the submission that the mere fact he might be in his sixties when he is eligible for release justifies such findings.

27 I should also record that I have considered whether I should find special circumstances and reduce the proportion of the sentence represented by the non-parole period, notwithstanding no submission was made that I should make such a finding. I have concluded that the length of the potential parole period that will be available under a sentence having the usual statutory proportions will be more than adequate to assist the offender reintegrate into the community.

28 Victim impact statements have been made by Ms Semra Bas, the deceased's sister, and by the deceased's daughter. I acknowledge the pain, grief and loss they speak of and I trust that in some small way they feel some benefit in having this acknowledged in a public way. The law is clear about taking into account the effect that the death of a person has upon others (see R v Previtera (1997) 94 A Crim R 76) but I do wish to say to the writers of these victim impact statements, and to other members of Ms Bayrak's family and friends, that I do care for your loss and you have my condolences.

30 Sentenced to imprisonment comprising a non-parole period of 21 years and a balance of the term of the sentence of 7 years. The sentence will date from 5 June 2007 and the offender will be eligible for release on parole on the expiration of the non-parole period on 4 June 2028. **********

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