Director of Public Prosecutions v Diler
[2019] VCC 1460
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01125
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BURAK DILER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2019 | |
DATE OF SENTENCE: | 6 September 2019 | |
CASE MAY BE CITED AS: | DPP v Diler | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1460 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – trafficking in a drug of dependence – carrying on business of dealing in firearms – prohibited person possessing a firearm – related summary charges: Summary Charge 2, possess cartridge ammunition whilst not being licensed – Summary Charge 4, commit indictable offence whilst on bail – Summary Charge 8, possession of a prohibited controlled weapon (knuckledusters) – plea of guilty entered at late stage – relevant prior criminal history – term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hamill | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms N Karpanagiotidis | David Barrese & Associates |
HER HONOUR:
1 Burak Diler, you have pleaded before me on one charge of trafficking in a drug of dependence, namely methylamphetamine, between 16 March 2017 and 24 May 2017, carrying on the business of dealing in firearms on 19 May 2017 without a licence, being a prohibited person possessing a firearm, namely a sawn-off Nikko 12-gauge shotgun on 19 May 2017.
2 In addition, you pleaded guilty to related summary offences, being Summary Charge 2, possess cartridge ammunition whilst unlicensed on 9 June 2019, Summary Charge 4, commit indictable offence whilst on bail and Summary Charge 8, possess prohibited controlled weapon (namely, knuckledusters) on 9 June 2017.
3 You have further admitted your prior criminal history which spans the period from 19 January 2012 to 14 December 2015. Of relevance, you have prior convictions recorded on 4 August 2014 at Broadmeadows Magistrates' Court for possessing drugs and possession of an unregistered general category handgun, and being a prohibited person possessing a firearm, and possessing cartridge ammunition without licence or permit.
4 You were convicted and placed on an 18-month Community Correction Order in respect to those matters, as well as on other related matters, including possession of drugs, using cannabis, various driving offences and failure to answer bail.
5 You breached that order by non-compliance and on 14 December 2015 at Broadmeadows Magistrates' Court the contravention of the Community Correction Order was proven and an aggregate term of imprisonment of 34 days was imposed in addition to fines for charges that related to possession of drugs.
6 You have relevant subsequent convictions.
7 On 23 August 2017, at Melbourne Magistrates' Court you were convicted of possession of methylamphetamine, fail to answer bail, drive whilst disqualified, possess cartridge ammunition without licence or permit and other driving matters. You were sentenced to an aggregate term of 14 days being time served and fined. Following the recording of the convictions you were dealt with for contravention of the Community Correction Order imposed earlier, on 14 December 2015 and you were sentenced to an aggregate term of 90 days, of which 78 days PSD was declared.
8 At Heidelberg Magistrates' Court on 12 September 2019, you were dealt with in respect to negligently dealing with proceeds of crime, possessing a controlled weapon without excuse, possession of methylamphetamine, and state false name, for which you received an aggregate term of 119 days and you received fines, as well. Pre-sentence detention of 119 days was declared.
9 Mr Diler, the current offending is serious, and that is reflected in the maximum penalties prescribed by law. They are:
(i) in respect to the trafficking drug of dependence charge, 15 years' imprisonment;
(ii) carry on the business of a firearms' dealer, 240 penalty units or 4 years' imprisonment;
(iii) prohibited person possess firearm, 1200 penalty units or 10 years' imprisonment;
(iv) possess cartridge ammunition without licence, 40 penalty units;
(v) commit indictable offence whilst on bail, 30 penalty units or 3 months' imprisonment; and
(vi) possess prohibited weapon (knuckledusters), 240 penalty units or 2 years' imprisonment.
10 I shall proceed to sentence you on the basis of the Summary of Prosecution Opening that was read at the plea hearing.
11 I note that you were aged 25 at the time of the offending, you are now 27.
12 Briefly you have pleaded guilty to firearms offences related to the supply of an unregistered sawn-off Nikko shotgun (Nikko) to Yacqub Khayre (Khayre).
13 The Nikko belonged to your co-accused, George Matte-Hado. You and Matte- Hado knew each other through being former workmates.
14 In effect you acted as a middle man, arranging the sale of the Nikko to Khayre, with the gun changing hands on 19 May 2017 for $2,000 cash.
15 On 5 June 2017, Khayre attended at the Buckingham Serviced Apartments in Brighton. He had two firearms in his possession, one of which was the Nikko.
16 Whilst at the apartments, he shot dead the concierge, Kai Hao, and took hostage an escort that he had arranged to attend the apartment.
17 Khayre later phoned a news outlet and stated, 'This is for the Brighton hostage. This is for IS (meaning Islamic State). This is for al-Qaeda.'
18 Khayre later left the confines of the apartment and discharged multiple shots at police, who returned fire. Three police officers were injured and Khayre was fatally wounded. The incident was commonly referred to as “the Brighton siege”.
19 A subsequent examination of the scene revealed the discovery of the Nikko, which was a sawn-off model 5200 12-gauge double barrel break open shotgun.
20 Five cartridges found at the scene were forensically examined and determined to have been fired from the Nikko.
21 It is not alleged by the prosecution that you or, indeed, Matte-Hado were aware of the use to which Khayre intended to put the Nikko.
22 You have also pleaded guilty to trafficking in drugs, namely methylamphetamine, in the period before and after the firearms' offences, and that is over the period between 16 March 2017 to 24 May 2017.
23 The evidence in relation to the trafficking charge comes from an analysis of your phone that was seized by police. Selected messages are set out in Annexure A of the Crown opening.
24 At the relevant time, you were not the holder of a firearms dealer’s licence and you were not authorised to possess, carry or use cartridge ammunition and you did not have any firearms registered to you in Victoria.
25 You are also classified as 'a prohibited person under the Act', because (amongst other reasons), you had been convicted on 14 December 2015 of being a prohibited person possess firearm, and you were sentenced to 34 days' imprisonment in respect to that charge.
26 It is an offence under the Firearms Act 1996 to carry on the business of a firearms' dealer except with a licence issued under that Act.
27 During the investigations, Matte-Hado told police that he had acquired the sawn-off Nikko from a workmate, in January or February of 2016, and had kept it at his home since that time.
28 He said that he was approached by you in or around April of 2017, asking whether he wanted to sell the Nikko. You told Matte-Hado that you had someone who wanted to buy it, and that you could make a lot of money from the sale.
29 Matte-Hado told police he eventually agreed to the sale.
30 You had been provided with Khayre’s number through a friend, Ms Omerod, who had met Khayre around May 2017. Khayre had asked her whether she could get him any guns. She told him she could not. However, she provided you with his contact details because she believed that you could source the firearms.
31 Thereafter, a number of text messages were exchanged between yourself and Khayre relating to the purchase of a firearm and some ammunition, and arrangements took place in order for the transaction to be completed and they are detailed in paragraphs 21-32 of the Crown Opening.
32 Khayre had been released from prison on 14 December 2016 and was, from that date until the date of his death, on parole.
33 The transaction in respect to the gun was completed on 19 May 2017 at Greenvale. You drove Khayre to meet Matte-Hado at the Greenvale Gardens Housing Estate, Greenvale. You entered Matte-Hado's vehicle and exchanged $2,000 cash for the Nikko. (Charge 2, the business charge, and Charge 3, prohibited person possess firearm).
34 You then returned to Khayre's vehicle and provided him with the Nikko, and all parties then left the area.
35 Matte-Hado later told police he gave you $300 from the purchase price of the Nikko in exchange for you providing him with a quantity of speed. You took his money and said it would take a couple of hours to get the drugs. (This is an uncharged act).
36 A search warrant was executed at your house on 9 June 2017.
37 Police located .22 calibre bullet ammunition in the cupboard in the foyer (Summary Charge 2, possess cartridge ammunition) and a set of knuckledusters on a couch in a bungalow where you slept. (Summary Charge 8, possession of a prohibited weapon).
38 You were not present during the execution of the warrant because you had been in remand. You had been remanded in custody on unrelated matters on 24 May 2017.
39 Your seized mobile phone was subjected to analysis, and that revealed a number of text messages to a number of people over the period charged, namely 16 March 2017 to 24 May 2017 (that is the charged period in Charge 1).
40 You were trafficking on a regular basis methylamphetamine and GHB.
41 Your plea to the charges is put on the basis that the prosecution is unable to quantify the precise number of people trafficked to, or the precise amounts trafficked. However, the prosecution relies on the text messages found on the phone to establish the offending.
42 Annexure A to the opening sets out the summary of a selection of the messages contained on your phone, along with the trafficking conduct represented by those messages, which is the material upon which you are to be sentenced in relation to Charge 1.
43 The table makes reference to at least 47 sales to 26 different contacts during the 69-day charged period, other deals that are prevented only by lack of supply, and several messages which the prosecution rely upon to suggest the business-like nature of the activity.
44 You were formally interviewed by police on 9 June 2017 and, apart from confirming your address, you otherwise exercised your right to silence.
45 You were on bail in relation to other matters involving three different informants at the time of the offending (Summary Offence Charge 4, commit indictable offence whilst on bail).
46 At the time of your offending, you were the subject of an 18-month Community Corrections Order that I have already referred to, that was imposed on 14 December 2015, for various offences (including trafficking in methylamphetamine).
47 Matte-Hado, your co-accused, has pleaded guilty to the offending in relation to the dealing of the Nikko to Khayre, a charge of possession of the firearm along with other charges, and his matter is due to be heard as a plea hearing on 1 October 2019.
48 Your matter resolved prior to trial but after a contested committal. On the 28 February 2019 you were arraigned and pleaded guilty to all charges.
49 You have been in custody since your arrest on 24 May 2017 on unrelated matters. You were remanded on this offending since being charged on 12 June 2017.
50 You have been in continuous custody since 24 May 2017.
51 I have had regard to the other sentences that you have served, and also I have had regard to the principle of totality.
52 This is serious offending, Mr Diler. Having regard to your prior criminal history in respect of both firearms and drug offending, your moral culpability is high.
53 The charges of trafficking and possession of firearms and carrying on the business of dealing in firearms and being a prohibited person possessing a firearm does represent more serious offending on your behalf.
54 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.
55 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.
56 Furthermore, in relation to the offence of carrying on the business of dealing in firearms, objectively this is a serious example of that charge. It is accepted that this was the only occasion when you engaged in the business of dealing with a firearm. You played an integral part in enabling Mr Khayre to obtain possession of a firearm, which then led to very tragic consequences. Your sole motivation was to obtain money.
57 The subsequent conduct of Mr Khayre demonstrates dramatically the good policy reasons why Parliament has provided criminal penalties in respect to this offence and general deterrence is a significant factor in your sentence in respect to this charge. It is equally a significant factor in respect to the prohibited person being in possession offence and the policy behind that was clearly stated when the provisions were introduced in Parliament in 1996. It was said then by the Minister for Police and Emergency Services:
“I feel it is universally accepted in our community that firearms should not be in the hands of those who have demonstrated they cannot meet standards of behaviour approved by the community'. The Firearms Bill is emphatic about this. Accordingly, a person who is classified a prohibited person under the Bill, will not be entitled to hold any license or possess any firearm for a specified period of time.”
58 This case provides a powerful demonstration of the very real risks which are associated with criminals who are in possession of firearms, with the obvious risk being that such firearms can lead to - having them in your possession can lead to very serious consequences. And that was the risk that materialised here, when Khayre used the gun that you provided him.
59 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.
60 I do accept that there is a degree of overlap between Charges 2 and 3. Essentially the two charges relate to the same firearm, namely the Nikko, but they represent different criminal behaviour. There will be a degree of concurrency in the sentence to reflect the degree of overlap.
61 You must be punished in respect to this offending. You are a prohibited person and therefore at law you should not have had anything to do with firearms because of that status.
62 In formulating the appropriate sentence, general deterrence looms large, as well and specific deterrence, denunciation and community protection are also powerful sentencing considerations.
63 In relation to the firearms offences, the Crown does not allege that you knew the precise use to which the firearm was going to be employed. However, as I have already indicated, what happened starkly illustrates the very real risks associated with this sort of offending.
64 Ms Karapanagiotidis set out your personal history and background.
65 Your family is Turkish. Your parents migrated to Australia, following which you were born here. You were raised in the Broadmeadows and Gladstone Park area.
66 Your father is gainfully employed as a truck driver delivering concrete and your mother works in a café. You are the middle child of three sons. Your two brothers are gainfully employed and one works at Overall Panels.
67 Your family does not approve of your drug use and other criminal behaviour. None of the other family members have been involved in criminal offending.
68 You left school in Year 9 because of behavioural issues. You then commenced a painting apprenticeship but only completed two of four years. Thereafter you have done some work as a factory hand over time and your last paid employment was at Direct Freight, where you met your co-accused.
69 You were heavily involved in drug use at the time of the offending and your progress in life has been marred by your severe addiction to drugs. You commenced smoking cannabis at age 15, escalating to ice use at age eighteen. Your ice use has extended to daily use and as a consequence of your drug use, you became heavily involved with negative peers and influences and began your criminal offending.
70 This is the longest time that you have spent in a custodial setting. Your time in custody has been a wake-up call for you. You have demonstrated that you have been drug-free and you now show some insight into your offending behaviour. You now regret your actions and you are committed to dealing with your long-term drug addiction through appropriate treatment and you are anxious to start life again afresh upon your eventual release.
71 You have the opportunity of being able to return home to live with your parents. Further, you have an offer of employment with Overall Panels as a motor vehicle detailer upon your eventual release.
72 A letter written from Anthony Dodson, Managing Director from that business was tendered at the plea hearing.
73 I accept all the matters put in mitigation on your behalf.
74 The plea of guilty although entered at a late stage is one that still does attract a discount in sentence because of its real utility. It does represent an acceptance of wrongdoing on your behalf and is an indication of expression of remorse on your part. You have spared the State the cost and inconvenience of a trial. You have facilitated justice, so your sentence will be discounted accordingly.
75 Your addiction to methylamphetamine at the time of the offending does explain your behaviour in respect to this offending, but in no way excuses your behaviour and it must be condemned.
76 You have now been in custody for a significant period of time. Part of that time was time during which you served the two sentences that have been imposed in respect to the matters dealt with in the Magistrates' Court that related to your subsequent offending.
77 You have been able to demonstrate that you can be more productive and you have utilised your time in custody by completing some employment related activities, and that is evidenced by the certificates that were provided. Significantly, you have also demonstrated through the negative drug screens provided from 26 January 2019 and 23 June 2019, that you are currently drug free.
78 You do retain the support of your family who regularly visit you whilst in custody and they are supportive of you and wanting you to return home upon your eventual release.
79 Given that you have remained drug free whilst being held in custody and have significant support from your family, together with prospect of employment and stable residence, overall, I have made an assessment of your prospects of rehabilitation being reasonable.
80 Ms Karapanagiotidis submitted that you have already served a significant time in custody and that a sentence ought be formulated that would enable your supported release on parole.
81 Ms Hamill, on behalf of the Crown, submitted that a term of imprisonment with a non-parole period to be fixed was appropriate, and she emphasised the serious nature of the offending.
82 There was some discussion during the course of the plea hearing about the sentence imposed relating to two other offenders, namely, Dalrymple and Moore, both of whom were sentenced by Her Honour Judge Gwynn on 5 July 2017 relating to firearms offences. The firearms were also found in the possession of Mr Khayre and I have had regard to those sentencing remarks.
83 It is not strictly speaking a case where parity applies but it does provide some guidance as to the application of the relevant sentencing principles to the circumstances of those two men's case.
84 In formulating the appropriate sentence, I must have regard to just punishment.
85 I will now impose the formal Court orders, so I will ask that you stand, Mr Diler.
86 In respect to charge1 , which is the trafficking charge, you will be convicted and sentenced to 3 years' imprisonment and that is the base sentence.
87 In respect to charge 2, carrying on a business of being a firearms dealer, you will be convicted and sentenced to 2 years' imprisonment.
88 In respect of Charge 3, prohibited person possess firearm, you are convicted and sentenced to 18 months' imprisonment.
89 In respect of Summary Charge 2, possess cartridge ammunition, you are convicted and fined $500.
90 In respect to Summary Charge 4, commit indictable offence whilst on bail, you are convicted and sentenced to 1-month imprisonment. In respect to Summary Charge 8, possess a prohibited weapon without exemption, you are convicted and sentenced to 6 months' imprisonment.
91 Charge 1, three years' imprisonment, base sentence;
92 Charge 2, two years' imprisonment; and
93 Charge 3, 18 months' imprisonment.
94 Summary Charge 4 is one month, that is commit indictable offence on bail.
95 Summary Charge 8, possess prohibited weapon without exemption, six months.
96 I will make the following orders for cumulation: 6 months of the sentence imposed on Charge 2 and 1 year of the sentence imposed on Charge 3 are served cumulatively upon each other and upon the sentence imposed on Charge 1, and that is a total effective sentence of 4 years and 6 months' imprisonment.
97 I direct the minimum term to be served before being eligible for parole is 2 years.
98 I make the disposal order sought and the forfeiture order sought.
99 Pursuant to s.6AAA, but for your plea of guilty, I would have imposed a term of 6 years' imprisonment with a non-parole period of 4 years' imprisonment.
100 Finally, I make the following declaration of pre‑sentence detention. I declare that you have spent 723 days pre‑sentence detention. I direct that that be entered into the records of the court. I believe that covers all the orders.
101 MS HAMILL: Yes, Your Honour.
102 MS KARAPANAGIOTIDIS: Yes, Your Honour.
103 HER HONOUR: Yes. Very well. Thank you. So, Mr Diler can be taken downstairs.
104 (At this stage the accused left the court.)
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