Supreme Court New South Wales Medium Neutral Citation: R v Burns [2021] NSWSC 1536 Hearing dates: 9 and 11 November 2021 Decision date: 29 November 2021 Jurisdiction: Common Law Before: McCallum JA Decision: 1. Offender to be sentenced in accordance with the findings of fact recorded in this judgment. 2. Sentence hearing stood over part-heard to 28 January 2022 Catchwords: CRIME – sentencing – murder – plea of guilty to constructive murder – hearing as to contested facts – deceased killed by a single stab wound – whether wound inflicted accidentally – whether offender had intention to cause grievous bodily harm Legislation Cited: Crimes Act 1900 (NSW) ss 18(1)(a), 98 Category: Sentence Parties: Crown Jake Burns Representation: Counsel: M Paish (Crown) L McSpedden (Offender) Solicitors: Director of Public Prosecutions (Crown) M Rumore (Offender) File Number(s): 2020/00079873 Publication restriction: None Judgment 1. The offender, Jake Burns, is to be sentenced for the murder of Erol Tokcan. Mr Tokcan died as a result of a single stab wound inflicted by the offender during a home invasion in which he was attempting to rob the occupants for drugs and money. 2. It is appropriate to explain at the outset that the offender will not be sentenced today. There is further evidence to be taken on 28 January next year concerning the offender's subjective case, the preparation of which has been delayed by the impact on prisoners of the COVID-19 pandemic. Assuming the evidence can be concluded on the next occasion, the offender will be sentenced about a week later. The Crown case is complete. It included victim impact statements provided by members of Mr Tokcan's family to assist the Court to understand the devastating impact this offence has had on them. I will not be referring to the content of those statements today because I am undertaking a different task in this judgment. However, I assure the family of the deceased that their statements will not be overlooked. They will be addressed in the final sentencing judgment. 3. The offender was arraigned on an indictment containing one count of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), a count of manslaughter in the alternative to the count of murder and one count of armed robbery and wounding contrary to s 98 of the Crimes Act. When first arraigned in the Supreme Court on 4 June 2021, he pleaded guilty to the count of manslaughter and to the robbery count. It may be noted that, by pleading guilty to those two counts, the offender admitted the essential elements of constructive murder but that does not appear to have been appreciated at the time of the arraignment. 4. The Crown did not accept the plea in discharge of the indictment. The matter was accordingly listed for trial in October 2021. However, about three weeks before the date fixed for trial, the offender pleaded guilty to the count of murder. The plea was entered on the understanding that there would be a contest as to the facts on which the offender was to be sentenced. The Crown provided a comprehensive statement of facts which are agreed by the offender. However, there remained a contest as to three inter-related issues: the kind of knife held by the offender when he stabbed the deceased; the nature of the act that caused the stab wound and the offender's intention at the time of that act. This judgment records my findings of fact on those three issues. 5. The Crown called four witnesses to address the disputed factual issues. They were David Lupica, a friend of the deceased who was present at the time he was stabbed, and the offenders' three co-offenders. The girlfriend of the deceased, who was also present when he was stabbed, was also called by the Crown but she proved to be in such a state of distress that I considered it necessary to excuse her while she was still under cross-examination. In that circumstance, the Crown very fairly indicated that he would withdraw her evidence. 6. In some instances, the evidence of the witnesses called by the Crown was inconsistent with the agreed facts. I will address those inconsistencies, where significant, in the discussion of the evidence that follows. 7. The agreed or undisputed facts may be summarised as follows. On the evening of 9 March 2018, the offender was visiting his friends Jerami Angelos and Ryan Hall at their house at Colyton. Mr Hall's cousin, Bradley Farrell, also lived at that house. The three friends (the offender, Angelos and Hall) were drinking alcohol and smoking cannabis. The offender consumed about two or three long necks of full-strength beer and the three men shared approximately three grams of cannabis between them. 8. Having run out of beer and cannabis, they decided to go to an RSL club to keep drinking. Bradley Farrell drove them there. The offender, Mr Angelos and Mr Hall each consumed approximately eight to 10 schooners of beer at the RSL club. 9. On the way home, they bought a slab of beer which they took back to Mr Hall's house. The offender, Mr Angelos and Mr Hall shared the slab evenly, each consuming approximately eight more beers. 10. The offender acknowledged that he was feeling "pretty intoxicated" after consuming that quantity of alcohol and cannabis. However, he was at that time a man of solid build and a regular drinker. He had likely developed some tolerance to the effects of alcohol. 11. At around 8:30pm the three men decided to go out to buy some cannabis. They asked Bradley Farrell to drive them to a house in Dharruk. Mr Tokcan lived at that address. He had previously shared the house with a man known as Trin but Trin no longer lived there. 12. Mr Tokcan was in the house with his girlfriend, Crystal Watson, and a man known as Jay Ozturk. At some point they were joined by David Lupica. While this was disputed by Mr Lupica, it is an agreed fact that Mr Ozturk, Ms Watson, Mr Lupica and the deceased all smoked methylamphetamine during the evening. 13. The offender, Mr Farrell, Mr Hall and Mr Angelos arrived in Farrell's car outside the house. The offender went to the front door while the others stayed in the car. The Crown case included differing versions as to the detail of that visit but it is clear enough that, although Mr Tokcan had cannabis in the house, he refused to sell any to the offender. According to the agreed facts, he said to the offender, "I've only got some for personal use. Fuck off. Don't come here anymore. I don't know you well…" 14. The offender went back to the car and said, "He's got no weed". The men left. However, as they were heading away, they decided to go back to Mr Tokcan's house to rob him. The offender gave evidence about that decision. He said he was annoyed because he had previously bought cannabis from someone at the house and had not received the full quantity he had paid for. The offender said to the other men, "We should go back and take it, take everything". One or other of the men said, "Don't say you're going to do something you're not going to do". The offender replied, "Take me back, I will". That evidence was not challenged by the Crown and so should be accepted. 15. Mr Farrell drove the men back to Mr Tokcan's house, arriving at about 9:30pm. According to the agreed facts, the offender directed him to park a short distance from Mr Tokcan's house facing away from the house, suggesting contemplation of the need for a ready escape. Mr Farrell did not accept that he had been directed to park in that way. However, having regard to the admitted plan to rob, and the offender's explanation of that decision, I accept the agreed fact. 16. Mr Farrell stayed in the car while the offender, Mr Hall and Mr Angelos got out and walked towards Mr Tokcan's property. The offender gave evidence that he said to Mr Angelos, "Well you knock on the door and ask him because he is not going to sell to me because he refused me earlier". As submitted by the Crown, this demonstrates that, despite his intoxication, the offender had some capacity for rational thought immediately before committing the offence. As he was walking towards the door behind the other two, the offender took a knife from his pocket. He described it as a pocket-knife which he carried as a utility knife for work and at other times. He said it was a folding knife which clicked into the open position and which was a total of about 15 to 20cm long, the blade being about 10cm. 17. Mr Angelos knocked on the door. Mr Lupica heard the knock and said to Mr Tokcan, "Erol, I think someone's at your door". Mr Tokcan was sitting on the floor of the lounge room rolling up some cannabis at that time with Ms Watson sitting next to him. Mr Tokcan responded, "No-one's there". Mr Lupica got up and opened the door slightly while putting his foot behind it to stop it from being pushed open. 18. Mr Lupica saw Mr Hall and Mr Angelos standing outside the door and asked, "What do you want?" One of the two responded, "I'm Trin's mate". Mr Lupica then said, "What are you after?" and either Mr Hall or Mr Angelos said they wanted some pot. 19. Mr Lupica then looked towards Mr Tokcan while continuing to hold the door open and said, "Eza, have you got any pot you want to get rid of?" Mr Tokcan replied, "No, there's nothing here, bro". Mr Lupica said to Mr Hall and Mr Angelos, "There's nothing here boys" and began to close the door but Ms Watson 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". 20. The offender then charged through the door from behind the two other men, grabbed Mr Lupica by the shirt and put the knife to his ribs. It is common ground that the same knife was used to stab the deceased. 21. Initially the Crown case was that the knife was a large "SPIKA" brand hunting knife designed for hunting pigs. Had the offender armed himself with that kind of knife, it would undoubtedly have rendered the offence more serious. It was not unreasonable for police to form the view that the hunting knife was used. They ascertained from conversations recorded by surveillance devices that, after the men returned to Mr Hall's house, Mr Hall ground the blade of the knife down using a bench grinder, presumably to preclude it being found and used as evidence. In one conversation, Mr Hall said "I grinded it down to nothing… it was a big piggin' knife". During a search warrant executed at the offender's home, police found an empty box for a SPIKA hunting knife. On the strength of that evidence, the Crown case was that the knife used in the robbery was the SPIKA hunting knife. 22. However, the offender later provided evidence to the Crown of a search conducted at his own house by a private investigator, Mr Michael Rumore, in which a SPIKA brand knife was discovered in a swag in the offender's bedroom. The offender gave evidence at the hearing that he had left the SPIKA knife in his swag and had used a different knife to commit the offence. 23. The forensic evidence was equivocal as to the kind of knife used. The forensic pathologist who conducted the autopsy, Dr Rianie Van Vuuren, found that the appearance of the deceased's wound indicated that there had been a sharp incision on one side whereas the other side indicated a blunt incision in which the skin had been slightly torn. Dr Van Vuuren found that was consistent with the use of a SPIKA knife as one edge was sharp and the other was blunt. However, it was also consistent with a pocket folding knife. 24. Dr Van Vuuren also took measurements of the width of the wound which were also consistent with the width of a SPIKA knife. However, she did not measure the depth of the wound while conducting the autopsy. She was later asked to estimate the depth of the wound based upon post-mortem photographs. She suggested it was 10-12cm deep but acknowledged that this estimation was a "very inaccurate" process. Furthermore, Dr Van Vuuren said there are several variables which influence the depth of such a wound including the position of the deceased when the knife enters the body, which can change the proximity of internal organs to the skin. Other variables include the relative movement of the offender to the deceased, the direction and force of the injury, the movement of the knife in the wound and the type of knife used. Dr Van Vuuren accordingly accepted that it was possible for a pocket folding knife to have caused the injury. 25. Mr Lupica's evidence could not assist as he did not see the knife at any point. Mr Angelos also claimed not to have seen the knife either in the Dharruk house or afterwards when driving back to the Colyton house. However, the offender and Mr Hall gave very similar descriptions of the knife. Both said it was a folding knife with both a black handle and black blade. When the knife was open it was approximately 15 to 20 centimetres long, including the handle. The blade itself was about two inches wide. One edge was sharp whereas the other one was blunt and slightly under one centimetre thick. The tip of the knife tapered to a point but the point was a wide angle rather than a thin one. On the strength of that evidence the Crown conceded that the knife used by the offender was not the SPIKA pig hunting knife as initially thought but was still of greater thickness and fortitude than an average pocket-knife. 26. Importantly, the knife opened by manually pulling the blade out but it would then lock into place and required the pressing of a button to close it again. 27. Returning to the events of the evening, and accepting that the knife was the pocket folding knife regularly carried by the offender, I also accept that the offender took the knife from his pocket and opened it after he left Mr Farrell's car but before Mr Lupica opened the front door of the Dharruk house. Shortly after Mr Lupica opened the door, the offender pushed through the doorway, 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. 28. Mr Lupica gave evidence that the offender then said, "I want more than a 50, cunt!" The offender's evidence was that he said, "This is a robbery, give us everything you've got". Whichever version is correct, the offender clearly had the intention of using the knife to scare the people inside the house to facilitate the commission of the robbery. 29. It is an agreed fact that Mr Lupica then replied, "You fucking serious, bro?" to which the offender responded, "Fucking oath I'm serious." Mr Lupica recalls the offender then saying, "I'll fucking stab you" but the offender denies saying those words. I am satisfied beyond reasonable doubt that the offender did threaten to stab Mr Lupica at that point. Mr Lupica's evidence on that issue was quite persuasive. However, it does not follow that he in fact intended to stab Mr Lupica and I am not persuaded that he did have that intention at that time. In my assessment, the offender likely had the intention of scaring those inside the house with the knife in order to persuade them to hand over the drugs. As I will explain, I am not persuaded that he anticipated what would unfold or that he would in fact use the knife. 30. After the offender said, "I'll fucking stab you", Ms Watson 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 the offender who moved further into the lounge room from the doorway. Ms Watson then turned the lights back on again. 31. Mr Lupica and the offender were the only witnesses whose evidence addressed the subsequent events inside the house. However, their accounts were very different. 32. Both agreed that Mr Lupica pushed the offender. Mr Lupica claimed that the two men then fell over a bicycle near the entrance to the house. The offender denied that he fell over at any stage; he maintained that he remained on his feet throughout the incident. At the point where Mr Lupica said the offender had fallen over the bicycle, the offender said he moved towards the centre of the lounge room. 33. Mr Lupica claimed that after the two men fell over, he and the offender attempted to stand up but Mr Tokcan came over and tackled both of them to the ground again. The offender denied that and said that after he was pushed by Mr Lupica, he was standing in the middle of the lounge room with Ms Watson approximately four steps away and Mr Tokcan about six steps away. The offender said that Ms Watson came towards him and he pushed her away, then he saw Mr Tokcan moving towards him with outstretched arms as if to tackle him. 34. It is an agreed fact that Mr Lupica then became engaged in a scuffle with Mr Angelos and Mr Hall, who were moving towards the offender. Mr Lupica punched either Mr Hall or Mr Angelos twice and picked up an aluminium ladder with which he hit the same person in the chest. He then attempted to hit the other person with the ladder but Ms Watson was in the way so it slipped out of his hands. Both Mr Hall and Mr Angelos subsequently turned and fled from the house. 35. The critical factual issue is how Mr Tokcan came to be stabbed. Mr Lupica gave evidence that, as Mr Hall and Mr Angelos were running away, he looked towards the offender and Mr Tokcan who were wrestling with their hands out in front of their bodies. Mr Lupica agreed that his view of that struggle was partly obscured by Ms Watson. However, he said he saw Mr Tokcan on the ground holding on to the offender's shirt near his shoulders and making a rolling motion, trying to pull him down. He said the offender appeared to be trying to make Mr Tokcan release his grip and said "Let me go cunt. I'll fucking stab you". 36. Mr Lupica gave a compelling description as to what the offender did next. He demonstrated how the offender quickly moved his right hand, which was in a clenched position near his right hip, towards Mr Tokcan in a stabbing movement. Mr Lupica said he did not see a knife in the offender's hand, nor did he observe the offender's hand make contact with Mr Tokcan's chest. After seeing that gesture, Mr Lupica ran over and threw the aluminium ladder towards the offender, striking him in the chest. The offender then ran out the front door. 37. Mr Lupica's statement to police was recorded in a walk-through at the scene of the murder. In order to explain how compelling his account was, it is helpful to reproduce four screenshots of his demonstration of the movement I have just described: Figure 1: Mr Lupica's first demonstration of the beginning of the stabbing gesture with his right hand. Figure 2: Mr Lupica's first demonstration of the end of the stabbing gesture with his right hand. Figure 3: Mr Lupica's second demonstration of the beginning of the stabbing gesture with his right hand. Figure 4: Mr Lupica's second demonstration of the end of the stabbing gesture with his right hand. 1. The offender's version was that he did not wrestle with Mr Tokcan. He gave evidence that Mr Tokcan ran towards him and that he put both his hands up to prevent Mr Tokcan from hitting him with full force. He was holding the knife in his right hand at this point. He said that, as he raised his hands, he accidentally stabbed Mr Tokcan once in the chest. He said Mr Tokcan then took a step backwards and the offender saw that he was bleeding. He ran out the front door. 2. Two factual issues must be determined by reference to that evidence. The first is whether the stabbing was accidental or deliberate. The second is, if it was deliberate, what intention the offender had at that time. The task is not to compare the two versions and decide which I prefer. Even if I do not accept the offender's evidence on those issues, I cannot find that the stabbing was deliberate unless I am satisfied of that fact beyond reasonable doubt. 3. Based on the compelling description given by Mr Lupica, I am satisfied that the stabbing was deliberate and was not an accident. I found Mr Lupica to be a convincing witness both in his walkthrough interview with police and in the evidence he gave in court. Despite those two occasions being over three years apart, his recollection was constant and he was able to provide a good level of visual detail illustrated with movements and sound effects. 4. The most compelling part of Mr Lupica's evidence was the arm movement by the offender that Mr Lupica demonstrated in his walkthrough interview at the Dharruk house and while giving evidence in this Court. It was unequivocally a stabbing gesture and Mr Lupica performed it consistently on the different occasions of explaining what happened. Although Mr Lupica did not see the knife in the offender's hand at the time of the arm movement, that is explained by the fact that both its handle and blade were black and the source of light in the lounge room was a lamp on the floor. 5. The offender's account was that he accidentally stabbed the deceased when raising both his hands to stop the deceased from tackling him with full force. That version does not make sense having regard to the position of the two men and the position and direction of the wound. On the strength of the evidence of Mr Lupica, I am satisfied beyond reasonable doubt that the stabbing was a deliberate act as opposed to an accident. 6. The second issue is the intention with which that act was committed. Initially the Crown's case was that the offender stabbed the deceased with the intention to cause really serious bodily harm. However, in closing submissions, the Crown adopted the position that the stab was deliberate but that the evidence did not establish beyond reasonable doubt an intention to cause really serious bodily harm. The offender's case was that the stabbing was accidental and that it would follow that the Court could not be satisfied that he had the intention of causing really serious harm to Mr Tokcan. 7. On the offender's version, he is guilty only of constructive murder. However, the intention with which the act causing death was committed is important in the assessment of the objective seriousness of the offence. 8. Despite the concession by the Crown, it remains necessary for me to form my own view as to whether the offender had the intention to cause really serious harm to Mr Tokcan. In my assessment, that is the only reasonably available inference. I have already explained why I do not accept that the stabbing was accidental. I also have regard to Mr Lupica's evidence, which I accept, that the offender said, "Let me go cunt. I'll fucking stab you" immediately before making the arm movement. 9. The offender 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 the offender's efforts to free himself. I am satisfied beyond reasonable doubt that, in that adrenalin-fuelled environment, the offender spontaneously formed the intention to stab Mr Tokcan so that he could escape. 10. I do not think it is reasonably possible that he did so with any intention other than to cause really serious harm. While the purpose of causing that harm may have been to enable him to escape from Mr Tokcan's grip, I have no doubt that he must, by stabbing the deceased in that way, have intended in that brief instant to cause him really serious harm. 11. However, I cannot be persuaded beyond reasonable doubt that the offender formed that intention at any point preceding the instant of the stabbing. There was no evidence that the robbery itself was planned or conceived at any point before the return trip to the Dharruk house. By the time the offender entered that house he had, by his own admission, formed the intention of using the knife to scare those inside the house to facilitate the robbery. However, I am satisfied that he was not expecting to use the knife to stab anyone. In my assessment, 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. 12. It is an agreed fact that, following the altercation in the house, Mr Lupica ran after the offender, Mr Hall and Mr Angelos and threw the ladder at Mr Hall, hitting him and causing him to stumble into a brick fence on the property. Mr Lupica gave evidence that the offender then turned around and ran towards Mr Lupica. Mr Lupica heard the offender say, "Come here you fucking dog. I'll stab you!" It is an agreed fact that Mr Lupica then picked up the ladder again and threw it at the offender, hitting him in the upper body. However, the offender gave evidence that he did not turn around and say those words to Mr Lupica and nor did Mr Lupica throw the ladder at him. Instead he claimed to have kept running. For the reasons already explained, I accept Mr Lupica's evidence on that issue. 13. The offender, Mr Hall and Mr Angelos then ran to Mr Farrell's car and drove off towards Colyton. While they were driving back the offender said, "I think I've just stabbed him". 14. Mr Farrell drove the offender, Mr Hall and Mr Angelos to the Colyton address where Mr Hall used an industrial grinder to grind a substantial portion of the knife used by the offender down to dust. This dust was then scattered across the backyard and the remainder of the knife was disposed of in a bin. 15. Mr Ozturk had been in the kitchen during the fight and had not seen Mr Tokcan get stabbed. Once the offender, Mr Hall and Mr Angelos left he came out of the kitchen and saw Mr Tokcan lying on the ground bleeding. Mr Ozturk asked Ms Watson "What happened?" to which she responded "They fucking stabbed him!" Mr Ozturk then called 000 to request help. 16. Police arrived at the Dharruk house at about 9:50pm and found Mr Tokcan lying unconscious on the floor with a large quantity of blood around his stomach and chest area. They began performing CPR and paramedics arrived soon afterwards to take over. Mr Tokcan was transported to Westmead Hospital but was pronounced dead at approximately 10:35pm. 17. For the reasons I have outlined, the offender will be sentenced on the basis of the following findings of fact of which I am satisfied beyond reasonable doubt: 1. The knife with which the offender stabbed the deceased was not the large SPIKA hunting knife but the offender's pocket folding knife. 2. The offender formed the intention to rob the household of the deceased as he was being driven away from that house the first time. He armed himself with the pocket folding knife as he approached the door the second time. 3. The stabbing was deliberate, not accidental. 4. The stabbing was committed with the intention of causing really serious harm to the deceased but that intention was formed spontaneously during the struggle between the offender and the deceased and while the offender was trying to escape from being held by the deceased. ********** 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: 29 November 2021