Burak Diler v The Queen - [2019] VSCA 271

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burak Diler v The Queen

Details

AGLC: Burak Diler v The Queen [2019] VSCA 271
Case: [2019] VSCA 271
Decision Date: 21 November 2019

CaseChat Overview and Summary

Burak Diler has appealed against his conviction and sentence for various drug and firearms offences. The offences were committed while he was on bail for other drug offences, and in breach of conditions of a community correction order. The appeal was heard in the High Court of Australia. The legal issues in the case revolve around the sentence imposed by the Court of Appeal, which was a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years. The appellant argued that the sentence was manifestly excessive due to an error in the allocation of cumulation between the firearms offences.

The court considered the nature and seriousness of the offences, the appellant’s criminal history, and the fact that the offending occurred while he was on bail and in breach of a community correction order. The court noted that while there may have been an error in the allocation of cumulation between the firearms offences, this did not provide a reasonable prospect of the total effective sentence being reduced. The court found that the sentence imposed was appropriate given the seriousness of the offences and the appellant’s history of non-compliance with court orders. The court also noted that the appellant had acted as a ‘middleman’ in the sale of a sawn-off shotgun, which was a particularly serious offence.

The High Court held that the appeal should be dismissed and refused leave to appeal under section 280(1)(b) of the Criminal Procedure Act 2009. The court found that the sentence imposed was not manifestly excessive and that there was no reasonable prospect of the total effective sentence being reduced. The court also noted that the appellant had a history of non-compliance with court orders and that the offending occurred while he was on bail for other drug offences. The court concluded that the sentence imposed was appropriate and that there were no grounds for allowing the appeal.

Orders