YUKSEL v R [2010] NSWCCA 65 | Case summary

TUESDAY 13 APRIL 2010 Sedat YUKSEL v R Judgment 1 HANDLEY AJA: On 16 June 2008 the applicant was convicted, following a trial before his Honour Judge Cogswell SC and a jury, of wounding Jason Little on 31 October 2007 with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. The offence carries a maximum penalty of 25 years imprisonment and under the table to s 54D of the Crimes (Sentencing Procedure) Act (the Act) the standard non-parole period for a sentence within the middle of the range of objective seriousness for that offence was seven years. 2 The applicant was sentenced by Judge Cogswell on 1 October 2008 to a term of imprisonment of nine years with a non-parole period of seven years dating from his arrest on 31 October 2007. 3 The applicant's grounds of appeal, which were not filed until 6 January this year, were, in substance, that the learned sentencing judge erred in determining that the offence fell within the middle of the range for this offence; that his Honour was not entitled to find that the applicant had been at fault in failing to undertake treatment for his psychiatric condition; that his Honour erred in his construction and application of s 21A(3) of the Act; that he erred in finding that the victim had been vulnerable within the meaning of s 21A(2)(l); and that having found special circumstances, his Honour failed to reduce the non-parole period. 4 The Judge's finding that the offence fell within the middle of the range required an evaluative judgment based on all relevant facts. Although, strictly speaking, it did not involve the exercise of a judicial discretion the considerations referred to in House v The King (1936) 55 CLR 499 at 505 are relevant by analogy. 5 The size and location of the wound, the weapon that must have been used, the helplessness of the victim who was lying on the floor unable, to the applicant's knowledge, to get up or defend himself, and the finding that the wound was inflicted with the intention of inflicting grievous bodily harm, indicate significant criminality. 6 The two principal factors relied upon to reduce the objective seriousness of the offence below the middle of the range range was the fact that the actual wound did not penetrate beyond the subcutaneous level into the muscle tissue and was not life-threatening, and the psychiatric evidence given by Dr Sinclair. 7 The evidence at the trial was not before the court on this application and the estimates of the length of the wound vary but may be taken as 15 centimetres with a depth of up to 3 centimetres. There are photographs before the court which were in evidence at the trial which indicate the dimensions of the wound. 8 The psychiatric evidence given by Dr Sinclair, which the judge accepted, was that the applicant suffered from a psychotic condition which required treatment, that he heard voices and that his condition would be exacerbated by alcohol or drugs. The applicant had a history of taking cannabis. The judge said that the psychiatric evidence was not wholly favourable to the prisoner because he had failed in the past to get treatment. He said in paragraph 23: "The evidence is clear that Mr Yuksel's mental state or mental condition is something which has been drawn to his attention in the past and the evidence is, and I accept, that he has refused or at least declined recommendations or directions to have that treated. Hence, the impact of his mental condition on the offence in this case needs to be seen in the context that he knew about his condition and had declined to get assistance for it." 9 Mr Lange criticised this finding and submitted that it was not open to the judge on the evidence. In particular it was said that the Judge could not find that the applicant's mental condition when he received this advice enabled him to evaluate and act on it in a rational way. 10 The difficulty with this submission is that the officer from the Parole Board, who made in his report the statements referred to by the judge, was not required for cross-examination. The applicant did not give evidence in the sentencing proceedings; and Dr Sinclair, who provided a report in the applicant's case on sentence, was not asked to direct her attention to this question and did not express any opinion about it. 11 The evidentiary onus on these matters was on the prisoner and there is no evidence capable of discharging that onus. The judge was left with the statement of the parole officer and nothing which could cut down the weight of that evidence when considering the applicant's culpability and the objective seriousness of the offence. In these circumstances I am not persuaded that the judge gave insufficient weight to the psychiatric history or erred in finding that the applicant had been at fault in failing to undertake treatment for his psychosis. 12 The applicant's next submission was that the Judge erred in finding that at the time of the stabbing the victim was vulnerable. He was not vulnerable because he was a member of a group recognised by the statute or by the community as vulnerable or because he was in a high risk situation when the confrontation began. The judge found that he was vulnerable because of his situation at the time of the stabbing. 13 Mr Lange submitted that s 21A(2)(l) of the Act indicated that the practical vulnerability of the victim was not within the range of the statute. I cannot accept that submission. The examples given in paragraph (l) are just that. . They do not purport to be exhaustive and they are examples of persons who are vulnerable for one reason or another before the offence is committed. This victim became vulnerable in the course of the confrontation but he was vulnerable at the relevant time. I reject that ground of appeal. 14 In the course of his sentencing remarks the judge said at paragraph 26: "The same section goes on to provide that the reasons for which I may set a shorter period than the standard non-parole period are only those referred to in s 21A." 15 This is the correct construction of s 21A(3) in isolation, but that is not the end of the enquiry. Section 21A(1) enables the Court to take into account any other objective or subjective factors that affect the relevant seriousness of the offence and psychiatric evidence would also be relevant to a number of the mitigating factors within subs (3). I conclude, therefore, that the error assigned in ground 3 has not been established. 16 The Judge considered the psychiatric evidence and the condition of the applicant at the time of sentence and at the time of the offence, and at some length. Clearly he considered that that evidence was relevant in assessing the objective seriousness of the offence and the appropriate sentence to reflect that. 17 In my judgment the applicant has failed to establish that the evaluative process undertaken by the judge was vitiated by any of the overt errors referred to in House v The King (1936) 55 CLR 499 at 505. 18 The applicant is left with the complaint that the finding is unreasonable or unjust in the light of the objective facts. The range of offences covered by s 33 of the Crimes Act 1900 is extensive beginning with the slightest penetration of the second layer of skin, up the scale, to near death woundings with long term drastic effects on the health and well-being of the victim. 19 Parliament has not given any assistance to the Court in determining the parameters of the middle of the range of objective seriousness in the offending proscribed by this section. The Court must work out as a matter of common sense and sound judgment where the middle of the range begins and ends. However a range is a range, and the middle of the range is itself a range. This offence was not at the top end or, indeed, at the middle of the middle range, but in my judgment it was open to the sentencing judge to find that it was at the lower end of the middle range. Apart from the nature of the wound there were other features which, in combination, enabled the judge to find that this was within the middle range. 20 The jury convicted the prisoner of the offence of malicious wounding with intent to do grievous bodily harm. The specific intent was necessarily found because the jury had available to them a verdict of reckless wounding which was not found. The specific intent found by the jury is a significant aggravating feature. There was also the use of a dangerous weapon initiated by the prisoner and the vulnerable position of the victim. In my judgment the combination of these factors enabled the Judge to find that the case was within the middle range. 21 There remains for consideration ground 5 that the Judge erred in not reducing the non-parole period despite making a finding of special circumstances. The Judge fixed a head sentence of 9 years which was not challenged but having found special circumstances he failed to reflect that finding in the non-parole period which he fixed at seven years. This exceeded the prima facie statutory ratio of 75%, whereas to properly reflect his finding of special circumstances the ratio should have been less. 22 It is necessary, in my opinion, for the Court to intervene to correct his Honour's errors firstly in fixing a non-parole period which was higher than the prima facie ratio and secondly in failing to reflect his finding of special circumstances by fixing a non-parole period which was lower than the prima facie ratio. The appropriate way to reflect the finding of special circumstances is to confirm the head sentence of nine years and fix a non-parole period of five years and ten months. 23 I, therefore, propose that the leave to appeal be granted, that the appeal be allowed in part, that the head sentence of nine years imprisonment be confirmed but that the non-parole period of seven years be quashed and there be substituted a non-parole period of five years and ten months to date from 31 October 2007. I will ask the Crown in due course to tell me when I should order that the applicant be eligible for parole. The head sentence will still expire 30 October 2016 as imposed by the sentencing judge. 24 GROVE J: I agree generally with the judgment delivered by the presiding judge. In my view the assessment of the head sentence of nine years lay within the sound exercise of his Honour's sentencing discretion but for the reasons given by Handley AJA I would substitute for the non-parole period of seven years a period of five years 10 months which would create an eligibility for parole first occurring on 30 August 2013. I agree with the orders proposed. 25 HISLOP J: I agree with Handley AJA. 26 HANDLEY AJA: The orders will be as I have announced subject to the order proposed by Grove J that the applicant is to be eligible for parole on 30 August 2013.

YUKSEL v R

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