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
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- AGLC
- Burak Diler v The Queen [2019] VSCA 271
- Case
- [2019] VSCA 271
- Decision Date
CaseChat Overview and Summary
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.
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