Supreme Court New South Wales Medium Neutral Citation: R v Eyuboglu (No 3) [2019] NSWSC 414 Hearing dates: 22 March 2019 Decision date: 12 April 2019 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) Convicted of murder. (2) I impose a non-parole period of 14 years, to commence on 31 October 2017 and to expire on 30 October 2031. That will be followed by a parole period of 5 years, to commence on 31 October 2031 and expire on 30 October 2036. (To express my sentence another way, I have imposed a head sentence of 19 years with a non-parole period of 14 years, with a full backdate.) (3) The first date upon which it appears the offender will be eligible for possible release to parole is 30 October 2031. Catchwords: CRIMINAL LAW – sentence – offender found guilty of murder after trial by judge alone – offender very close to establishing partial defence of substantial impairment – discussion of objective and subjective features – intention to kill – offender suffering from schizophrenia – balancing of objective gravity with substantial reduction in moral culpability – sentence imposed Cases Cited: R v Eyuboglu (No 2) [2019] NSWSC 285 Category: Sentence Parties: Regina (Crown) Gokhan Eyuboglu (Accused) Representation: Counsel: C Everson (Crown) A Evers (Accused) Solicitors: Directors of Public Prosecutions (Crown) McGirr Lawyers (Accused) File Number(s): 2017/329217 Publication restriction: Nil Judgment Introduction 1. On 19 March 2019, I returned a verdict of guilty of murder against Mr Gokhan Eyuboglu (the offender) at the conclusion of a trial by judge alone. In doing so, I rejected the defence contention that I should return the special verdict of not guilty on the ground of mental illness, along with the alternative contention that I should return a verdict of manslaughter based upon the partial defence of substantial impairment: see R v Eyuboglu (No 2) [2019] NSWSC 285. 2. Having said that, with regard to the latter I regarded the partial defence as failing only because one of its elements was finely balanced in my own mind. In that sense, defence counsel is correct in submitting that the offender came very close to establishing that he had committed the offence of manslaughter, rather than murder. 3. The proceedings were stood over for a matter of days only, because each party was very largely content to rely upon the evidence in the trial with regard to all objective and subjective features relevant to sentence. On the latter occasion, I received written and oral submissions, along with a number of victim impact statements, to which I shall return later in these remarks. At the conclusion of the proceedings on sentence, the matter was stood over for imposition of sentence today. Fundamentals of approach 1. The maximum penalty for the offence of murder is imprisonment for life without possibility of parole. I hasten to add that, in the circumstances of this case, the learned Crown prosecutor made it clear that he was not contending for that outcome, and in my own opinion it need not be discussed further. There is also, in these circumstances, a standard non-parole period of 20 years. I regard each of those statements by Parliament as important guideposts in my exercise of the sentencing discretion. 2. Neither party sought to revisit on sentence any of the detailed findings of fact that I had set out in my reasons for verdict. It can be understood that all of those findings are maintained for the purposes of these remarks, on the basis that matters of aggravation must be proven by the Crown beyond reasonable doubt, but matters of mitigation need be proven by the offender only on the balance of probabilities. 3. My reasons for verdict are an extensive analysis of the context of the offence, its objective features, and subjective aspects of the life and personality of the offender. They were read by me in their entirety in open court; they have been available on the Internet by way of Caselaw for some weeks; and they have been promulgated by various forms of social media. In the circumstances, I shall avoid fruitless repetition, with the result that I believe that I can and should be unusually concise in these remarks on sentence. Objective features 1. As I have recounted, on the evening of 29 August 2017, the offender and Mr Charles Grace (the deceased) were the only two occupants of the modest housing commission apartment of the latter that was located in the south-eastern suburb of Sydney of Chifley. The deceased was sitting at the kitchen table having dinner. The offender was not sitting at the table, but in all likelihood was standing nearby at the kitchen sink, attending to his crockery and cutlery. 2. By way of background, the two men were acquaintances if not friends, and had largely spent the day aimlessly drinking together. That was because, sadly, the deceased had been burdened with alcoholism for many years, and the offender had his own dependencies, along with other significant personal issues, with which I shall deal in more detail shortly. 3. The offender at that stage was living with the deceased in his apartment, after becoming more or less homeless for reasons arising from his own issues. A further resident of the apartment was absent, having been incarcerated that afternoon during the course of their drinking. 4. Something passed between the two men that led the offender suddenly to stab the deceased repeatedly with a knife to the upper body. There is nothing to suggest that the attack was planned, and I approach it on the basis that it was a spontaneous reaction to some casual statement or other – perhaps a joke to which the offender took exception – made by the deceased. 5. Having said that, and accepting that the intention formed by the offender was accompanied by a large measure of loss of control, it is impossible to avoid the inference that, at least towards the end of the period of the attack itself, the offender intended to kill the deceased. 6. Mr Grace tried in vain to defend himself, and suffered at least one defensive wound as a result. The combined effect of the knife wounds led to his tragic and untimely death. Although I do not believe, thankfully, that he suffered for an extended period, no doubt the fatal ordeal of the deceased was terrifying and excruciatingly painful. He died on the floor of his kitchen in a pool of his own blood. 7. After that, the offender quickly absented himself from the apartment. On the one hand, in his favour, he visited an older lady to whom he was close, immediately confessed what he had done, and showed by his words that he appreciated its enormity. On the other hand, he disposed of the murder weapon effectively, and changed his clothes, no doubt in an effort to escape justice. Furthermore, for many weeks afterwards he told a number of lies of omission and commission designed to hide what he had done. It was only many months later that he came publicly to accept that he was indeed the person who had committed the physical acts that caused the death of the deceased (in recounting these concluding portions of the chronology of the matter, I appreciate that much of what I have said in this context could be characterised as subjective, rather than objective). 8. It was not until 31 October 2017 that the offender was charged with murder, and he has been incarcerated ever since. Objective gravity 1. Murder is the most serious offence known to civil society. Patently, every example of that crime is of the utmost gravity. Still and all, it is necessary for me to make an assessment of the objective seriousness of this murder, not least so that I can sensibly give effect to the maximum penalty and the standard non-parole period, and I turn to do so now. The following analysis confines itself, to the extent reasonably practical, to the attributes of the offence, as opposed to those of the offender. 2. On the one hand, the deceased suffered a terrible death in his own home as a result of the actions of an invited guest. The fatal outcome ultimately was intended by the offender. He used a deadly weapon to achieve his goal. 3. On the other hand, as I have said, the offence was unplanned, spontaneous, unsophisticated in its execution, and readily detected. The presence of the offender in the home of the deceased was not itself a criminal invasion. The offence was not motivated by financial gain, or indeed any other palpable benefit to the offender. 4. In all the circumstances, this must certainly be assessed objectively as a grave example of the offence of murder. Subjective features General background 1. Turning now from the offence itself to the offender who committed it, the offender was born in January 1983, and accordingly was aged 34 years on the date of the commission of the offence. 2. He is an Australian of Turkish background who was not, I infer, born into a world of privilege or advantage. His parents separated when he was young, and his father has had his own struggles. It seems that the offender has enjoyed the support of a loving family, and will do so in the future. Having said that, his relationship with members of his family has been damaged and disrupted by the aspect of his life to which I now turn. Mental illness 1. Unquestionably, the most important subjective feature pertaining to the offender is the fact that he suffered and suffers from the serious, chronic, pervasive mental illness of schizophrenia. Notably, it has proven to be treatment-resistant over the past many months whilst the offender has been incarcerated. As I have recounted, had it not been for questions of the onus of proof, that illness of the offender would have led to my verdict being one of guilty of manslaughter, rather than of murder, by way of the success of the partial defence. 2. That finding about the chronic mental illness of the offender, analysed in detail in my reasons for verdict, also plays many roles in the sentence that I shall impose, as follows. 3. It explains the disadvantaged and difficult circumstances in which the offender was living at the time of the offence. 4. It permits some understanding of why the response of the offender – to some comment or other – was extreme to the point of fatality. 5. It goes some way to explaining why the offender was abusing alcohol and prohibited drugs at the time of the murder, because he was counter-productively seeking relief from his symptoms in that way. 6. It means that the offender is disabled from being fulsome in statements of remorse (though I do take into account – both as a subjective matter and by way of its utilitarian value – that, by the time of the trial, he did not seek to deny his physical acts, and the single point of contention in court was his mental state). 7. It means that his time in custody will certainly be more onerous than it would be if he were not mentally ill. 8. It means that he is a less appropriate instrument for expressions of general deterrence than a mentally well person. 9. And, finally, it also means that, in his particular case, the focus of the criminal justice system upon personal deterrence should be reduced, in favour of more emphasis upon doing its best to make the offender mentally healthy, in an effort to ensure in that way that the offender never commits an offence of violence again in his life. That is not only in the interests of the offender; if it is the most effective way to try to ensure that he refrains from offending in this way, it is in the interests of everybody. 10. In accordance with statute, in coming to those conclusions about the various effects upon this exercise of the mental illness suffered by the offender, I have of course disregarded the exacerbation of that illness that occurred as a result of the intoxication by alcohol and prohibited drugs to which the offender subjected himself. 11. In short, although the objective gravity of this example of the offence of murder is undeniable, the serious mental illness suffered by the offender at the time of its commission means that his moral culpability for it is substantially reduced, and it is incumbent upon me to reflect both of those findings in the sentence that I impose. Criminal record 1. Turning now to the need to see the commission of the offence in another context, it is not the case that this is the only time in his life that the offender has been violent. Indeed, over 20 years ago, when he was a child, he was first dealt with for an offence of assault occasioning bodily harm. Since that time there have been many offences of violence, and the offender has been imprisoned for them more than once. The most serious was an offence of aggravated breaking and entering with the infliction of actual bodily harm, committed as long ago as in 2003, when the offender was barely 20 years of age. It led to the offender being subject to a head sentence of imprisonment for 5 years 4 months, with a non-parole period of 4 years; I infer that it was a matter of some gravity. 2. Since his release at the conclusion of that non-parole period in 2007, the offender has continued to intersect with the criminal justice system, including by way of breaching apprehended violence orders and committing at least one offence of intimidation. At the time of the commission of the murder, he was subject to at least one good behaviour bond, a significant aggravating feature. 3. The effect of the reasonably extensive criminal record for violence of the offender, not least the commission of the offence that was serious enough for him to spend four years in continuous custody, is that no leniency can be reflected in the sentence on the basis of good behaviour in the past. 4. Having said that, I suspect that the practicalities of the criminal justice system have meant that, on at least some occasions when the offender was charged with less serious offences, his then-mental state was unable to be investigated fully. 5. In other words, I think it possible that the chronic mental illness of the offender, or its antecedent development, provides not only an important explanation of the commission of this offence, but also of his criminal record more generally. Prospects of rehabilitation 1. As for the future, as I have indicated the offender has been incarcerated since his arrest almost 18 months ago. For a brief time he was in the Long Bay hospital – I infer because of acute psychiatric problems – though he has now been returned to a conventional gaol. It has been many years since he has committed an offence against prison discipline, and I proceed on the assumption that his recent focus has been upon preparing for his trial, and that he is seeking to use his incarceration as quietly and constructively as he can. 2. As I have said, I accept that, over the years ahead, including when he is ultimately released, the offender will enjoy the love and support of more than one family member. That is a factor that could, I think, provide significant protection against reoffending. 3. On the other hand, it remains a matter of obvious concern that, despite the efforts at therapy and medication that have been made in the custodial setting, he continues to experience the distress of auditory hallucinations. 4. Patently, it is imperative that this man can never again be living as an untreated schizophrenic in the community. To avoid any form of repetition of this tragedy, in my opinion there needs to be a careful plan for the management of his mental health that is strictly implemented and monitored. 5. In short, if Mr Eyuboglu returns to the life he was living in 2017 – untreated, isolated, aimless, tormented by hallucinations, abusing alcohol and prohibited drugs – one can predict without difficulty further tragic violence. 6. On the other hand, I possess a very guarded optimism that, if sufficient care and resources are devoted to his mental health, the offender may be able to succeed in the community, many years from now. Various matters 1. I now turn briefly to a number of aspects of my task. 2. First, a full backdate will be granted until the date when continuous custody for this offence commenced; that is, 31 October 2017. 3. Secondly, these remarks reflect all of the aggravating and mitigating features that I have taken into account, and I do not propose to repeat them now mechanistically. 4. Thirdly, in my opinion, the finding of special circumstances sought by defence counsel is established; all that I have explained earlier in these remarks provides the basis for it. Having said that, I have taken care to ensure that the non-parole period is not reduced below the mandatory minimum period of imprisonment that I believe is necessary to reflect the gravity of what the offender has done. The result is that the reduction is very modest and to be measured in months. 5. Fourthly, despite the determinate head sentence that will be imposed, the offender should be aware that, in light of the nature of the offence that he has committed, he may not be released, even at the conclusion of his entire head sentence, if it is established at that stage that he presents a danger to the community. Victim impact statements 1. Finally, as I have said, in the proceedings on sentence I heard from many grievously suffering people about the effects that the violent and senseless death of the deceased has had upon them. The parties were agreed that the statutory test for me taking those effects into account on sentence had been established. 2. As I said at the time they were received by me, I acknowledge the dignified and reflective contents of all of the victim impact statements that were placed before me. 3. Mr Grace suffered from his own personal hardships; as I have said, chiefly a longstanding dependence on alcohol. No doubt, that made his own life difficult, underprivileged, and sad. 4. Despite his struggles, he has been described by one sister as a person who was big-hearted, and there is no doubt that he was deeply loved by many, well beyond his immediate family. 5. His mother has spoken of the violent death of their son simply breaking the hearts of herself and his late father. 6. Another sister has spoken of the suffering extending beyond adults to children who will never grow up to know the deceased; in particular, of course, his own daughter. 7. His romantic partner has spoken of the emptiness that has been experienced by many, along with a sadness that, I accept, will never fully disappear. 8. In short, it is clear that many people will struggle for many years in an effort to deal with this brutal, senseless loss of the life of a much loved fellow human being. 9. I extend my condolences to all who are grieving, and in particular to those who have been prepared to share publicly the details of their experience. It is possible that the conclusion of the legal proceedings today will provide some degree of closure, but I appreciate that there is a long, difficult, and painful journey ahead. Conviction and imposition of sentence 1. Gokhan Eyuboglu, you are convicted of the offence of murder. 2. I impose a non-parole period of 14 years, to commence on 31 October 2017 and to expire on 30 October 2031. That will be followed by a parole period of 5 years, to commence on 31 October 2031 and expire on 30 October 2036. (To express my sentence another way, I have imposed a head sentence of 19 years with a non-parole period of 14 years, with a full backdate.) 1. The first date upon which it appears the offender will be eligible for possible release to parole is 30 October 2031. ********** Amendments 17 April 2019 - Coversheet: R v Eyuboglu (No 2) [2019] NSWSC 285 was added, Paragraph 1: At the end of paragraph 1 see R v Eyuboglu (No 2) [2019] NSWSC 285 was added, Paragraph 35: the word "on" was added before the words "at least" The heading style of "Criminal Record" was changed. 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: 17 April 2019