R v Sedat YUKSEL [2008] NSWDC 365

New South Wales District Court

CITATION: R v Sedat YUKSEL [2008] NSWDC 365

JUDGMENT DATE: 1 October 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Non-parole period of 7 years. Balance of term of 2 years.

CATCHWORDS: CRIMINAL LAW - sentence - convicted by jury - malicious wounding with intent to inflict grievous bodily harm - whether offence lies in the middle of the range of objective seriousness - whether standard non-parole period applies - offender suffering from acute paranoid psychosis at time of offence - vulnerable victim - use of weapon - significant injury - offender refused directions to address his psychiatric status - spontaneous and opportunistic offence - offender on conditional liberty at time of offence - significant prior criminal record

LEGISLATION CITED: Crimes Act 1900 s 33 Crimes (Sentencing Procedure) Act 1999 s 21 A(2)(c), s, 21A(2)(d), s 21A(2)(j), s 21A(2)(l), s 21A(3), s 54B

CASES CITED: R v AJP (2004) 150 A Crim R 575 R v Chisari [2006] NSWCCA 19

PARTIES: Regina Sedat Yuksel

FILE NUMBER(S): 2008/11/0879

COUNSEL: Mr K Buckman (Defence)

SOLICITORS: Director of Public Prosecutions

JUDGMENT 1. Jason Little was watching television one night in his room at the Auburn Hotel when one of his neighbours provoked an altercation between them. The result of that altercation was that Mr Sedat Yuksel whom I am sentencing today produced a knife and stabbed Mr Little in the back. He was tried and convicted by a jury of maliciously wounding Mr Little with intent to inflict grievous bodily harm. That is an offence against s 33 of the Crimes Act 1900 and carries a maximum penalty of twenty-five years. 2. One of the main issues in this sentence is the question of where the offence lies in the range of objective seriousness, specifically whether or not it lies in the middle of the range of objective seriousness. That question is relevant to whether or not the standard non-parole period becomes applicable to this sentence. 3. Briefly, what happened is this. The offence occurred on 31 October 2007. Both Mr Little and Mr Yuksel were residents at the Auburn Hotel. Mr Little was watching television in his room, as I said. There was a loud knocking on his door. He ignored it for a while but finally got up and found that his neighbour, Sedat Yuksel, known as Sam Yuksel, was standing at the door. 4. Mr Yuksel verbally abused him claiming that Mr Little was yelling at him. Mr Little gave evidence that Mr Yuksel then punched Mr Little in the face and Mr Yuksel was charged with assault occasioning actual bodily harm. The jury in fact acquitted him of that charge. 5. Despite Mr Yuksel trying to get into Mr Little's room, Mr Little managed to repel him. Mr Yuksel stayed outside and continued to try to get into the room although the door was locked. Mr Little regained his composure but became angry and went back outside again to confront Mr Yuksel. When he did this Mr Yuksel continued to yell abuse at him. Mr Yuksel, both in the earlier incident and at the stage that I am describing now, formed the view that Mr Little was yelling out abuse towards him. Mr Little explained that the only noise coming from his room was that of the television. 6. A fight broke out. They were in the hallway. Punches were thrown by both men. Mr Little fell because he lost his balance. He fell awkwardly and badly injured his ankle. He found that he could not get up. There was, as he described in his evidence before the jury, "no way I could stand up on both feet. I tried but I couldn't." He said that once he was down on the ground he was "absolutely helpless". He was trying to knock on his neighbour's door with his feet and he was calling out for help but there was no answer. Mr Little described Mr Yuksel as "still standing over the top of me as I was lying on the ground with a knife in his hand." 7. Mr Little then describes Mr Yuksel as stomping with his foot on the top of his ankle. Mr Little was of the view that that action resulted in a broken ankle. I am not quite sure because I cannot recollect whether the assault occasioning actual bodily harm charge was the result of the initial punch when Mr Little first opened the door or that action. I do not take either into account because Mr Yuksel was acquitted of the charge of assault occasioning actual bodily harm. 8. Mr Little went on to describe his feeling of panic when Mr Yuksel produced a knife. He then described Mr Yuksel as kicking "my legs, my body, my stomach and then he rolled me over and stabbed me in the back, just under the right shoulder blade. I had to have fifteen staples and four stitches in my back." He said he saw the knife and recalls being rolled over and stabbed in the back, what he described as a very long slash across the back of his back. 9. Mr Yuksel gave evidence in the trial and was cross-examined about the circumstances of Mr Little being on the floor and the stabbing. He denied stabbing Mr Little. He frankly admitted the fight that developed between them but has always denied, and denied before the jury, stabbing Mr Little. When he was cross-examined by the Crown Prosecutor, Mr Yuksel acknowledged that Mr Little had fallen to the ground and then said: "He tried to get up, he still tried to get up, he goes 'Let me get up'. He goes, 'My ankle, my ankle', you know, he's screaming about his ankle, and you know." Mr Yuksel said that Mr Little tried to get up but then fell back down screaming that his ankle was hurting. Indeed he acknowledged that Mr Little tried to get up a few times but could not and was complaining about his ankle. He acknowledged that when he was down Mr Little was knocking on the bedroom door that was opposite his own room and yelling out "Help me, my ankle, help me".