Burak Diler v The Queen
[2019] VSCA 271
•21 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0192
| BURAK DILER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 November 2019 |
| DATE OF JUDGMENT: | 21 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 271 |
| JUDGMENT APPEALED FROM: | DPP v Diler [2019] VCC 1460 (Judge Lawson) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in drug of dependence – Carrying on business of being a firearms dealer without licence – Possessing firearm while prohibited person – Total effective sentence of four years and six months’ imprisonment – Non-parole period of two years – Acting as ‘middleman’ in sale of sawn-off shotgun – No reasonable prospect court would reduce total effective sentence despite apparent error in allocating cumulation between firearms offences – Manifest excess – Serious offences – Prior convictions for drug trafficking and possession of firearm while a prohibited person – History of non-compliance with CCOs – Offending occurred while on bail and subject to CCO – Leave to appeal refused – Criminal Procedure Act 2009 s 280(1)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | David Barrese & Associates |
| For the Respondent | Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA:
On 16 August 2019, the applicant pleaded guilty to one charge of trafficking in a drug of dependence (charge 1), one charge of carrying on the business of being a firearms dealer without a licence (charge 2), and one charge of possessing a firearm while a prohibited person (charge 3), as well as a number of summary charges. The firearms possession and dealing charges related to the applicant being the ‘middleman’ in the sale of an unregistered sawn-off 12-gauge Nikko brand shotgun on 19 May 2017. The shotgun was subsequently used in the ‘Brighton siege’ on 5 June 2017 where one person was killed. In the ensuing investigation, a large number of messages evidencing drug trafficking were found on the applicant’s phone.
On 6 September 2019 the applicant was sentenced in accordance with the following table:
Charge Offence Maximum Sentence Cumulation Indictment H11648910 1. Trafficking in a drug of dependence
[s 71AC(1) Drugs, Poisons and Controlled Substances Act 1958]
15 years’ imprisonment
3 years’ imprisonment Base 2. Carrying on the business of being a firearms dealer without a licence
[s 59(2)(a) Firearms Act 1996]240 penalty units or
4 years’ imprisonment
2 years’ imprisonment 6 months 3. Possession of a firearm while a prohibited person
[s 5(1) Firearms Act 1996]
1200 penalty units or
10 years’ imprisonment
18 months’ imprisonment 12 months Related Summary Offences 2. Possess cartridge ammunition without licence or permit
[s 124(1) Firearms Act 1996]
40 penalty units Fine $500 4. Commit indictable offence (prohibited person possess firearm) whilst on bail [s 30B Bail Act 1977] 30 penalty units or 3 months’ imprisonment 1 month Nil 8. Possess prohibited weapon without exemption or approval (s 5AAA Control of Weapons Act 1990) 240 penalty units or 2 years’ imprisonment 6 months Nil Total Effective Sentence: 4 years and 6 months’ imprisonment Non-Parole Period: 2 years (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 723 days S 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years. Other relevant orders: Forfeiture of items in Schedule and disposal at conclusion of any appeal proceedings.
Grounds of appeal
The applicant applies for leave to appeal against sentence on the following grounds:
1. The individual sentence on count [1], the orders for cumulation on counts [2] and [3] and the total effective sentence and non-parole period are manifestly excessive in that they failed to take into account and/or give adequate weight to a number of mitigating factors put on behalf of the applicant.
2. The learned sentencing judge erred in her assessment of count [1] as constituting an ‘objectively serious example’ of the offence as such a finding was not open to be made beyond reasonable doubt on the evidence.
3. The sentences and/or orders for cumulation on counts [2] and [3] were excessive and infringed the principle of totality and against double punishment.
Circumstances of offending
In around April 2017, the applicant approached George Matte-Hado, a former workmate, and asked whether Matte-Hado would be willing to sell an unregistered sawn-off ‘Nikko’ brand shotgun which Matte-Hado had previously acquired. On 18 May 2017, the applicant exchanged a number of coded text messages regarding the purchase of a firearm and ammunition with Yacqub Khayre. Khayre had been introduced to the applicant by Mist Omerod, after Khayre asked Omerod whether she could get him any guns. Omerod said she could not, but provided the applicant’s name to Khayre because she believed he could source firearms.
Later on 18 May 2017, Diler spoke to Matte-Hado and said that he had a good friend who was interested in buying Matte-Hado’s shotgun.
Diler, Khayre and Matte-Hado exchanged further messages and telephone conversations throughout 19 May 2017 regarding the sale of the shotgun. Khayre was at the time on parole. Shortly after 5.36pm on 19 May 2017, Diler met Khayre at a service station in Greenvale. Diler got into Khayre’s car and they drove a short distance to meet with Matte-Hado at a housing estate nearby where Matte-Hado lived. At some stage while they were in the car Khayre gave Diler $2,000 in cash, as the agreed purchase price of the shotgun.
The applicant then: (1) entered Matte-Hado’s car and exchanged $2,000 in cash for the shotgun and (2) returned to Khayre’s car and handed him the shotgun (charge 2). At that time, the applicant did not hold a firearms dealer’s licence and was not authorised to possess, carry or use a firearm because he was a ‘prohibited person’ under the Firearms Act 1996. The applicant was a prohibited person because he had been convicted on 14 December 2015 of an earlier charge of possessing a firearm while a prohibited person and had been sentenced to 34 days’ imprisonment (charge 3).[1] The applicant was also on bail on unrelated matters (summary charge 4).
[1]Firearms Act 1996 s 3 (definition of ‘prohibited person’ (a)(v)).
Prior to acting as the middleman in the sale of the shotgun, the applicant had agreed to sell to Matte-Hado a quantity of methylamphetamine in return for $300 — to be sourced from the $2,000 Matte-Hado received for the sale. That transaction (uncharged) appears to have been completed later that night in Essendon. The applicant’s profit on that sale appears to be the only financial gain he received from the shotgun sale.
On 5 June 2017, Khayre went to the Buckingham Serviced Apartments in Brighton with the shotgun and one other firearm. He shot and killed the concierge, Kai Hao, and took another person hostage. After later leaving the apartment, he shot multiple times at police, who returned fire. Three police officers were injured and Khayre was killed.
It was not alleged that the applicant, or Matte-Hado, were aware of Khayre’s intended use of the shotgun.
Following the siege, police found the applicant’s messages with Khayre on Khayre’s phone. The applicant’s house was searched under warrant on 9 June 2017 and a .22 calibre bullet cartridge (summary charge 2) and a set of knuckledusters were found (summary charge 8).
The applicant’s phone was also searched. Text messages on the phone dating from 16 March 2017 until 24 May 2017 evidenced that the applicant had been trafficking methylamphetamine and GHB (charge 1). The applicant’s guilty plea to charge 1 was on the basis that the prosecution could not quantify the precise number of people trafficked to or the precise amounts trafficked. However, a table of selected messages found on the applicant’s phone and annexed to the summary of prosecution opening, on which the plea was based, records at least 47 sales to 26 different customers over the 69-day charged period; together with various arrangements by the applicant to purchase drugs for his business. The charged period ended when the applicant was remanded into custody on 24 May 2017 on unrelated summary charges.
At the time he committed the offences at issue here, the applicant was on bail on the unrelated summary charges.
On 16 August 2019, the applicant pleaded guilty to the charges after a contested committal hearing. Counsel for the applicant conceded that this was not an early guilty plea but submitted that it should still attract a substantial utilitarian discount.[2]
[2]Plea hearing T24.19-21.
The applicant’s history and personal circumstances
The applicant was born on 24 January 1992. He was 25 years old at the time of the offending and is now 27 years old. He was born in Australia as the child of Turkish migrants. His family members do not approve of his drug use and criminal behaviour. No other family members have been involved in criminal offending and his parents and two brothers are all gainfully employed. His family supports the applicant’s ongoing rehabilitation and has offered for him to return to live in the family home when he is eventually released. He has also been offered employment upon his release at a business where one of his brothers is currently employed.
The applicant left school in Year 9 because of behavioural issues, and then completed two out of four years of a painting apprenticeship. He then worked as a factory hand and had some employment at Direct Freight, where he met Matte-Hado.
The applicant first began smoking cannabis when he was fourteen or fifteen, and escalated to methylamphetamine use at age eighteen. His methylamphetamine addiction has led to an itinerant lifestyle as his family, while supportive, do not approve of his drug use and the applicant has periodically left home during periods of drug use. Counsel for the applicant noted that the applicant’s criminal offending has been in the context of this severe drug addiction, which included daily ice use.
At the time of the offending, the applicant had a relevant criminal history for firearms and drug trafficking offences, as follows:
(1)August 2014 – Conviction for offences including possessing an unregistered general category handgun; possessing a firearm as a prohibited person; possessing cartridge ammunition without licence or permit; and possessing a prohibited weapon without exemption or approval, resulting in a Community Correction Order (‘CCO’) for 18 months. The applicant’s counsel stated that this matter involved a so-called ‘pen gun’.[3]
(2) December 2015 – Conviction for breaching the CCO imposed on him in August 2014. The applicant’s breaches arose from his conviction during the period of that CCO for trafficking methylamphetamine.[4] He was sentenced to a further CCO for 18 months for this trafficking offence. The offending at issue here occurred during the period of this further CCO.
[3]Plea hearing transcript T29.9.
[4]Date of conviction 11 December 2015.
After the offending in this case, the applicant was convicted of further offences before his plea in this case, as follows:
(1) 23 August 2017 – Convictions for possession of cartridge ammunition without licence or permit, methylamphetamine possession, failure to answer bail, various driving offences and contravention of the CCO imposed on 14 December 2015. The applicant was sentenced to 90 days’ imprisonment.
(2) 12 September 2017 – The applicant received further convictions including possession of a controlled weapon without excuse and was sentenced to 119 days’ imprisonment.
In summary, the applicant committed the offences at issue here while he was both on bail and subject to a CCO. Further, he had prior convictions for both trafficking methylamphetamine and possessing guns and ammunition as a prohibited person or otherwise without lawful approval.
We turn to consider the grounds of appeal. We will first consider grounds 2 and 3, which allege specific error in relation to the individual sentences, and then deal with ground 1 — which contends that the individual sentence on charge 1, the orders for cumulation on the sentences on charges 2 and 3, the total effective sentence and non-parole period are manifestly excessive.
Ground 2: judge’s classification of the cannabis trafficking offence as an ‘objectively serious example’ of the offence
In her reasons for sentence, the sentencing judge referred to the table of text messages annexed to the summary of prosecution opening, and a transcript of those text messages. She noted that they clearly evidenced the ‘business-like nature of the activity’ of drug trafficking by the applicant.[5] The judge referred to all the offending as ‘serious offending’,[6] especially having regard to Diler’s prior criminal history in respect of both firearms and drug trafficking.[7] On this basis, the judge assessed Diler’s moral culpability as high.[8] In that context, the judge stated:
The trafficking charge is objectively a serious example of that charge, having regard to there being evidence of regular engagement throughout the charged period, and the sample of messages demonstrates that you were actively supplying drugs to a number of people.
It is a significant example in my view, of trafficking simpliciter. Notwithstanding that the Crown cannot prove how much profit you made from that, it is obvious that you were conducting the business of supplying drugs.[9]
[5]Sentencing reasons [43].
[6]Ibid [52].
[7]Ibid [52].
[8]Ibid.
[9]Ibid [54]-[55].
The applicant contends that the sentencing judge wrongly classified the applicant’s offending as an objectively serious example of trafficking in methylamphetamine. We do not agree. The evidence showed that, over a two month period, the applicant completed 47 completed transactions in relation to 26 contacts. Thus, his activities were not those of a small-time trafficker, supplying illicit drugs only sporadically. To that extent, albeit that the total quantity of illicit drugs that he supplied could not be determined, his offending could with some justification be described as an objectively serious example of the offence. In any event, we consider that the sentence of three years imprisonment imposed on this charge — 20 per cent of the available maximum of 15 years’ imprisonment — is moderate, having regard to the applicant’s previous conviction for trafficking in methylamphetamine, and the fact that the trafficking occurred while the applicant was both on bail for other offences and subject to a CCO. Leave to appeal on ground 2 is refused.
Ground 3: sentences and cumulation on charges 2 and 3 infringed the principle of totality and involved double punishment
The sentencing judge referred to the seriousness of the firearms offences constituting charges 2 and 3. She classified them as objectively serious examples of those charges ‘which then led to very tragic consequences’.[10] The judge noted the policy reasons for imposing criminal penalties for such offences,[11] and concluded: ‘there is a need for the Court to send a clear message to others who are inclined to engage in this sort of criminal activity, that such offending will be dealt with sternly by the courts’.[12]
[10]Ibid [56].
[11]Ibid [57]-[58].
[12]Ibid [59].
Nevertheless, the sentencing judge recognised that there is a degree of overlap between charges 2 and 3, which related to the same firearm and the same events, although representing ‘different criminal behaviour’, and expressly recognised that there would be ‘a degree of concurrency in the sentence to reflect the degree of overlap’.[13]
[13]Ibid [60].
In formulating her sentence, the judge stated: ‘general deterrence looms large [and] specific deterrence, denunciation and community protection are also powerful sentencing considerations’.[14]
[14]Ibid [62].
Counsel for the applicant does not challenge the sentencing judge’s approach to her sentencing task on charges 2 and 3. Counsel contends, however, that the sentences and orders for cumulation on those charges do not in fact give sufficient weight to the very significant extent of the overlap between the two offences, and consequent need to avoid double punishment in fixing the sentences and the extent of cumulation ordered on the sentences on those charges. Counsel acknowledged that some cumulation of the sentences on both charges was necessary, because the offences ‘were not entirely subsumed in each other’ as count 3 involved the extra element that the applicant was a prohibited person.[15]
[15]Applicant’s written case [25].
The applicant contends that something has clearly gone awry in the fixing of the cumulation periods. He points to the fact that the sentence of two years’ imprisonment on charge 2 — which is 50 percent of the maximum penalty — attracts only six months’ cumulation (or 25 percent of the sentence). Charge 3, on the other hand, attracts 12 months’ cumulation, or two thirds of the 18 month sentence imposed.
We agree that the orders for cumulation appear to be curious and invite scrutiny. The sentence imposed on charge 2 (the dealing offence) — half the available maximum — appears to be stern, notwithstanding that the offence involved the sale of a sawn-off shotgun, which must have been intended by Khayre for some illegal purpose. In those circumstances, cumulation of only six months (or 25 percent) of that sentence is odd.
On the other hand, the individual sentence imposed on charge 3 (being a prohibited person in possession of a firearm) appears to us to be very lenient, particularly given the applicant’s prior convictions for that offence. In this context, ordering 12 months’ cumulation (amounting to two thirds of the sentence imposed) is out of kilter with the six months’ cumulation on the two year sentence imposed on charge 2.
Assuming in the applicant’s favour that the judge erred in her approach to the imposition of the individual sentences on charges 2 and 3, and to the orders for cumulation on the sentences for those charges, we consider that proposed ground 3 must, nevertheless, fail, since we consider that there is no reasonable prospect that this Court would reduce the total effective sentence despite there being an error in the sentence first imposed.[16] In our view, total cumulation of 18 months for the firearm offences when viewed as a whole does not offend principles of totality or double punishment. Viewed together the firearms offences were very serious. They had no relationship to the drug trafficking offence for which the base sentence was fixed. Leave to appeal on ground 3 is refused.
[16]Criminal Procedure Act 2009, s 280(1)(b).
Ground 1: manifest excess
Manifest excess is a difficult ground to make good. In order to succeed, it must be shown that the total effective sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[17] Put another way, manifest excess must be plainly apparent.[18]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[18]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6].
The applicant contends that the total effective sentence is manifestly excessive because, although the sentencing judge referred to the mitigating factors put forward on the plea and said she would take them into account, the total effective sentence does not give adequate weight to, in particular, the following mitigating factors:
(1) The applicant’s plea of guilty. As we have said, however, this factor had only limited utilitarian value, given that the guilty plea followed a contested committal hearing.
(2) The significant period of time the applicant had served on remand at the time he was sentenced, namely 723 days.
(3) The availability of family support, accommodation and employment.
(4) The applicant’s substantial efforts towards rehabilitation while in prison.
Taking these and other mitigating factors relied on by the applicant into account, we are not persuaded that the total effective sentence is wholly outside the range of sentencing options available to the judge. The offending was serious and involved two distinct fields of criminality. First, the applicant trafficked in a drug of dependence for a period of over two months. Second, wholly unrelated to that activity, the applicant was the proponent of the unlawful sale of the sawn-off shotgun, negotiated the price, and physically implemented the illegal sale transaction. This involved him in possessing, albeit for a brief time, a firearm while a prohibited person.
Each aspect of the applicant’s offending fell to be viewed in the context of relevant prior convictions.[19] Moreover, the applicant’s offending was aggravated by the fact that he was both on bail[20] and subject to a CCO[21] at the time he committed these offences. The history of the CCOs imposed upon him, and his continuing offending, demonstrate that the applicant’s prospects of rehabilitation are, at best, only reasonable, as found by the sentencing judge.[22] We agree also with the sentencing judge in her assessment of the applicant’s moral culpability as ‘high’.[23]
[19]As to the relevance of the applicant’s antecedent criminal history, see R v O’Brien and Gloster [1997] 2 VR 714, 718.
[20]R v Gray [1977] VR 225, 229–230; R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J); R v Basso & Frazetto (1999) 108 A Crim R 392, 397–8 [21]–[26] (Chernov JA), 404–5 [57]–[63] (Charles JA); DPP v Galea and Mosut (2000) 112 A Crim R 507; R v Pop (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA); Samuels-Orumnwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
[21]Bieljok v The Queen [2018] VSCA 99, [68] (Weinberg, Beach and Hargrave JJA); DPP v Basic [2017] VSCA 376, [70] (Weinberg, Osborn and Priest JJA).
[22]Sentencing reasons [79].
[23]Ibid [52].
We note that the judge specified a mercifully low non-parole period of only two years, and that this period has elapsed. Counsel for the applicant expressly stated that this period was not challenged.
Leave to appeal on ground 1 is refused.
Conclusion
For the above reasons, the application for leave to appeal is refused.
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