R v Acisulu; R v Kilic

[2022] NSWDC 640

District Court

New South Wales

Medium Neutral Citation:

R v Acisulu; R v Kilic [2022] NSWDC 640

Hearing dates:

17 November 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1    Ozan Acisulu is convicted.

2 This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

(a)  s 154C(1) offence - 2 years and 6 months with a non-parole period of 1 year and 8 months;

(b) s 154C(2) offence (taking into account the matter on the Form 1 – 3 years and 6 months with a non-parole period of 2 years and 4 months;

(c) s 7(1) offence - 2 years with a non-parole period of 1 year and 4 months;

(d)  s 25(2) offence - 2 years.

3    I impose an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 6 months to date from 18 August 2020. The non-parole period will expire on 17 February 2024 and the head sentence will expire on 17 February 2026. Mr Acisulu will be eligible to be released on parole on 17 February 2024.

4    Aydin Kilic is convicted.

5 This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

(a) s 154C(2) offence (taking into account the matter on the Form 1) - 3 years and 6 months with a non-parole period of 1 year and 9 months;

(b) s 7(1) offence (taking into account the matter on the Form 1) - 2 years with a non-parole period of 1 year.

6    I impose an aggregate term of imprisonment of 3 years and 8 months with a non-parole period of 1 years and 10 months to date from 24 March 2022. The non-parole period will expire on 23 January 2024 and the head sentence will expire on 23 November 2025. Mr Kilic will be eligible to be released on parole on 23 January 2024.

Catchwords:

CRIME — Violent offences — Assault with intent to take and drive a motor vehicle – Aggravated assault

CRIME — Firearms offences — Unauthorised use/possession of firearm

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drugs Misuse and Trafficking Act 1985

Firearms Act 1996

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

Bugmy v The Queen (2103) 249 CLR 571

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Hoskins v R [2021] NSWCCA 169

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Ozan Acisulu (Offender)
Aydin Kilic (Offender)

Representation:

Counsel:
P Allport (Acisulu)
I Lloyd KC with D Provera (Kilic)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Astoria Lawyers (Acisulu)
Talty Lawyers (Kilic)

File Number(s):

2020/52047 (Acisulu)
2020/52045 (Kilic)

Publication restriction:

None

JUDGMENT

Introduction

1. Ozan Acisulu appears for sentence after pleading guilty in the Local Court to the following offences:

1. Assault with intent to take and drive a motor vehicle, contrary to s 154C(1)(a), Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment and parliament has prescribed a standard non-parole period of 3 years.

2. Aggravated assault with intent to take and drive a motor vehicle, contrary to s 154C(2), Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment and parliament has prescribed a standard non-parole period of 5 years.

3. Possess unauthorised prohibited firearm without licence, contrary to s 7(1) Firearms Act 1996. The maximum penalty for the offence is 14 years imprisonment and parliament has prescribed a standard non-parole period of 4 years.

4. Supply prohibited drug, MDMA, contrary to s 25(1), Drugs Misuse and Trafficking Act 1985. The maximum penalty for the offence is 15 years imprisonment.

2. Mr Acisulu also asks the Court to take into account the offence of possess ammunition without licence or permit, contrary to s 65(3) Firearms Act 1996 on a Form 1. The maximum penalty for the offence is a fine of $5,500.

3. Aydin Kilic appears for sentence after pleading guilty to the following offences in the Local Court:

1. Aggravated assault with intent to take and drive a motor vehicle, contrary to s 154C(2), Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment and parliament has prescribed a standard non-parole period of 5 years.

2. Possess unauthorised prohibited firearm without a licence, contrary to s 7(1) Firearms Act 1996. The maximum penalty for the offence is 14 years imprisonment and parliament has prescribed a standard non-parole period of 4 years.

4. Mr Kilic also asked the Court to take into account the following offences on a Form 1:

1. Possess ammunition without licence or permit, contrary to s 65(3) Firearms Act 1996. The maximum penalty for the offence is a fine of $5,500.

2. Drive motor vehicle whilst suspended, contrary to s 54(3)(a) Road Transport Act 2013. The maximum penalty for the offence is 6 months imprisonment and/or a fine of $3,300.

Approach to Sentencing

5. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

6. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

7. The offenders entered a plea of guilty in the Local Court and are entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

8. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

Assault with intent to take and drive conveyance – Mr Acisulu

9. At around 4.10pm on 14 February 2020, Goran Begovski drove to his home in Sandringham in a Mercedes AMG vehicle. This property is secured by a high gate, which is opened and closed by use of a remote control.

10. Mr Begovski approached his residence and opened the electronic gate using the remote. He stopped slightly past his driveway as he prepared to reverse in.

11. At the same time, Mr Acisulu and another man were driving along the same street in a small silver Toyota Corolla hatchback which was registered to Mr Acisulu’s mother. They stopped behind Mr Begovski whilst he was preparing to reverse. Mr Begovski waved the Toyota past. Mr Acisulu and the other man drove past the Mercedes.

12. Mr Acisulu and the other man took the next left and parked on an adjoining street. Mr Acisulu got out of the car and retrieved an item from the boot. He then walked back into Mr Begovski’s street.

13. During this time, Mr Begovski had reversed his vehicle into the driveway, turned off the engine and got out of the vehicle, holding his keys. Before the driveway gate had completely closed, Mr Acisulu placed his hand over the sensor, causing it to reopen.

14. Mr Acisulu said to Mr Begovski, “Give me the keys”. Mr Begovski did not respond, so Mr Acisulu repeated “Give me the keys bro, I’m taking the car.” Mr Begovski offered Mr Acisulu a lift, but this offer was refused. Mr Begovksi requested that he be allowed to remove his shopping from the vehicle. Mr Acisulu allowed him to do this.

15. Once Mr Begovski removed his shopping, Mr Acisulu entered the vehicle on the driver’s side but was unable to start the car. Mr Begovski attempted to explain how to start the car. Mr Acisulu told him, “If you call the Police, I’ll fucking kill you.” Once Mr Acisulu was able to start the Mercedes vehicle, he drove out of the driveway and down the street. He pulled up alongside the Toyota and both vehicles drove off.

16. Mr Begovski called the police immediately after the incident. Whilst he was on the phone to police, Mr Acisulu drove the Mercedes back past the house, with the Toyota following close behind.

Assault with intent to take and drive conveyance – Mr Acisulu and Mr Kilic

17. At about 4.45am on 17 February 2020, Sam Fragulis drove from his house to his mother’s house in Rosebery. At about 5.10am, he parked his black Porsche Cayenne outside his mother’s house. Whilst parking, he noticed the Toyota driving erratically along the road and then out of sight.

18. Less than two minutes later, whilst Mr Fragulis was still seated in his car, he observed Mr Kilic and Mr Acisulu walking toward his vehicle. One of the offenders approached the driver’s side of the vehicle. The other approached the front passenger side door, opened it and said to Mr Fragulis, “Give me the keys.” That offender also produced a silver pistol and pointed it at Mr Fragulis. At this time, the offender at the driver’s side door said to Mr Fragulis, “Just give us your keys.”

19. Mr Fragulis immediately exited his vehicle and, with his car keys still in his pocket, ran across the street toward a white taxi.

20. The taxi driver, Katter Assaf, observed the co-offenders walk into the street where Mr Fragulis was parked. Mr Assaf saw that the Porsche vehicle had four doors open and the light was on inside the car, and that one of the offenders walking toward Mr Fragulis, who appeared to be trying to protect himself. Mr Assaf drove away.

21. Mr Fragulis then flagged down a Holden Commodore which had been parked behind the taxi. He entered this vehicle by the front passenger side door. Mr Fragulis told the driver of the vehicle, “These blokes are trying to take my car.” The offender who was holding the pistol ran after the vehicle. The Commodore vehicle then drove once around the block before the driver asked Mr Fragulis to get out of the car on a nearby street.

22. Mr Fragulis called the police, who arrived a short time later. Upon returning to his vehicle, Mr Kilic and Mr Acisulu had left the scene. It appeared that they had rummaged through the centre console, glove box and back seat of the vehicle. The victim noted that some of his clothing and coins had been stolen.

23. After this incident, the Toyota was captured on CCTV driving north. At some point, Mr Acisulu and Mr Kilic drove the Toyota to a carpark of a residential complex in Rosebery. At 6.35am, the Mercedes vehicle was captured on CCTV driving north. Mr Acisulu’s phone records placed his mobile phone within the Rosebery area shortly after the alleged offence.

24. At 7.30am, Georgia Kaparos left her home in Kensington to go for a walk. She noticed the Mercedes belonging to Mr Begovski parked outside her house with the engine running. When she returned from her walk at around 9.19am, the Mercedes was in the same position, with the engine still running.

25. Ms Kaparos approached the vehicle and saw Mr Kilic in the driver’s seat and Mr Acisulu in the passenger seat. They both appeared to be passed out.

26. Ms Kaparos called the police. Police arrived at about 9.25am. They conducted checks on the vehicle and noted it was reported stolen on 14 February 2020.

27. They opened the driver and passenger doors and placed Mr Kilic and Mr Acisulu under arrest. Police observed that both offenders were affected by drugs and unaware of their surrounds.

28. Mr Kilic was searched by police and nothing of interest was located on his person, however seven rounds of ammunition were located inside a bag which Mr Kilic had borrowed from Mr Acisulu for the weekend. The bag also contained Mr Kilic’s driver’s licence. Mr Acisulu was searched and three “Federal 380 Auto” gold and silver bullets and a large clear resealable bag containing 28.5 grams of MDMA were located on his person.

29. Once Mr Kilic and Mr Acisulu were restrained, police began to search the Mercedes vehicle. During this search, a black and silver Sig Sauer pistol and an empty ammunition magazine were located.

30. Mr Kilic and Mr Acisulu were conveyed to Prince of Wales Hospital for medical treatment due to their level of intoxication. Once treated, they were taken to Maroubra Police Station.

31. At 6.55pm, Mr Kilic participated in a recorded interview where he denied knowledge of, and involvement in, the taking of the Mercedes vehicle. Mr Kilic also stated that he had no recollection of how he ended up in the passenger seat of the Mercedes, as he had consumed a cocktail of drugs over the weekend. He stated that he had purchased two packets of cigarettes that weekend.

32. At 9.01pm, Mr Acisulu participated in a recorded interview where he denied knowledge of the circumstances of how the Mercedes was stolen. Mr Acisulu made no comment in relation to the Porsche. Mr Acisulu stated that he had no recollection of how he ended up in the passenger seat of the Mercedes, as he had consumed a cocktail of drugs over the weekend. He admitted to purchasing an ounce of MDMA by collecting $1500 from his friends, before distributing about 7 grams to them over the weekend. He did not provide comment in relation to the ammunition rounds found in his jumper pocket.

33. At 11.13pm, police spoke with Mr Acisulu’s sister at Maroubra Police Station. She stated that the Toyota is driven by her but registered to her mother. She had driven the car on the morning of 14 February 2020, but then Mr Acisulu had taken it and she had not seen it since. She did not know where it was parked. The Toyota car key was seized from the footwell of the Mercedes vehicle.

34. Mr Acisulu was never the holder of a Firearms Licence or Permit in New South Wales.

Sentencing Assessment Report – Mr Kilic

35. The court received a Sentencing Assessment Report (SAR) for Mr Kilic dated 17 November 2022. The report can be summarised as follows.

36. Mr Kilic lives with his parents. He reported a positive and supportive relationship with his parents, and his sister, who lives in an adjacent property. His parents and sister attested to Mr Kilic’s progress and current stability to the author of the report.

37. Mr Kilic is engaged to his partner of nine years. They are expecting a child. Mr Kilic’s partner affirmed his commitment to maintaining a pro-social lifestyle and advised that they are awaiting the outcome of this case before determining their future living arrangements.

38. Other than being unemployed for a brief period at the time of these offences, Mr Kilic has maintained ongoing employment since leaving high school. He currently works as an apprentice carpenter and reported a high degree of job satisfaction. Mr Kilic’s employer is aware of this case and has provided ongoing support.

39. Mr Kilic has a criminal history related to serious violence and possession of illegal firearms.

40. Mr Kilic maintained that he had no memory of commission of the offence due to his level of intoxication. However, he accepted the facts as presented to him by police and took responsibility for placing himself in this position.

41. He identified that he had not remained in his previous alcohol and drug treatment program for a sufficient length of time to address his addiction, describing himself as “weak minded”.

42. Mr Kilic reported that he had no knowledge of the pistol in the vehicle.

43. At the time of offending, Mr Kilic had reconnected with anti-social peers following his loss of full-time employment. He recognised that in doing so, he placed himself at risk of a negative outcome.

44. At the time of the offences, Mr Kilic reported a relapse into chronic use of cocaine and consumption of prescription medication like Xanax. He disclosed a binge pattern of alcohol consumption. Mr Kilic is currently participating in a two-year holistic alcohol and drug treatment program. He has remained abstinent from alcohol and other drugs since committing the offence. His counsellor confirmed that he attends treatment in person twice per week and shows a genuine commitment to addressing his substance use issues. Through the program he has been subject to random chain of custody urine testing and has returned negative results thus far. Mr Kilic’s program also involves cognitive behavioural therapy to promote emotional regulation and address symptoms of anxiety. Mr Kilic expressed his intent to continue treatment.

45. Mr Kilic’s psychologist reported that Mr Kilic has matured since he was last in treatment and appears to have turned his life around. He noted that due to the support provided in his current treatment program, no additional psychological intervention is required.

46. Mr Kilic engaged in intimidating and threatening behaviour in the commission of the offence.

47. Mr Kilic identified how distressing the situation would have been for the victim and others involved in the incident. He expressed deep regret to the author of the report for the trauma he may have caused, as well as the shame and distress he caused his parents and partner.

48. Mr Kilic confirmed that he is willing to perform community service work on weekends.

49. Mr Kilic has previously been supervised on two Intensive Corrections Orders. The first commenced in December 2018 for the offence of reckless grievous bodily harm in company. He was last supervised on a 15 month ICO commencing September 2019 for the offences of possess unauthorised pistol and possess ammunition without licence or permit authority. Supervision was suspended for both ICOs due to his low/medium risk of reoffending. He breached his second ICO by committing the current offences. Mr Kilic was also subject to 60 hours community service from September 2019. Records show that he incurred two written warnings for failure to attend without providing evidence to excuse his absence.

50. Mr Kilic was assessed at a low-medium risk of reoffending and suitable to undertake community service work.

Mr Kilic’s Case on Sentence

51. Mr Kilic tendered the following documents:

1. supplementary psychological report of Istvan Schreiner dated 11 June 2022;

2. letter of Mr Schreiner dated 6 November 2022;

3. letter of Parvez Khodabaccus (Director, Giving Back Australia) dated 1 November 2022;

4. letter of apology of Mr Kilic dated 14 November 2022;

5. letter of Mafalda Sofia Olivera Moura (partner) dated 14 November 2022;

6. letter of Christopher Rogers (Director, First Choice Apprentices) dated 9 November 2022;

7. letter of Stephen Sweeney (TAFE NSW) dated 9 November 2022;

8. confirmation of enrolment at TAFE NSW dated 9 November 2022;

9. apprenticeship confirmation from NSW Education dated 16 December 2021;

10. statement of attainment RTO Safety Training dated 8 January 2020;

11. letter of Mehmet and Norma Kilic (parents) dated 1 November 2022;

12. letter of Yasemin Kilic and Suzan Tomczyk (sisters) dated 15 November 2022; and

13. letter of Derek Tomczyk (brother-in-law) dated 15 November 2022.

52. The following is a precis of the evidence relied upon by Mr Kilic. I will try not to repeat matters referred to in the SAR.

53. Mr Kilic was born in Sydney in 1998. He is the youngest of three children born to his parents’ union. His parents and two sisters reside in Sydney. He has a close relationship with his family.

54. Mr Kilic reported a happy childhood. His family was stable and his upbringing was generally uneventful. Mr Kilic attended school until Year 12. He reported achieving low academic results between Year 7 and Year 10 but placing more effort into study during Years 11 and 12.

55. Mr Kilic played rugby league from a young age. He played competitively from Year 10 and trained daily in his teens. Mr Kilic played at the NSW State level and was invited to join the Sydney Roosters summer training program, however he did not undertake the program due to work commitments and his family’s financial reliance on him.

56. After high school, Mr Kilic commenced a carpentry apprenticeship. He said that whilst he found the “hands on” component of his course easy, he had difficulty with the theory components and discontinued the apprenticeship after eight months. Following this, he undertook labouring jobs, predominantly demolition work.

52. Mr Kilic worked as a waterproofer from 2018 to May 2021. In October 2021, he resumed a carpentry apprenticeship and found the coursework more manageable. He is still working full time. He is about to complete his Certificate III in Carpentry through TAFE and has been doing well in his course. He financially supports his family, as his parents both have significant health issues.

53. He and his fiancé have been together for nine years, although there have been periods of separation due to Mr Kilic’s substance abuse.

54. Mr Kilic was hospitalised briefly for seizures in 2017 and again in 2020.

55. Mr Kilic began drinking alcohol at age 17. Until age 20, he consumed alcohol weekly, mostly on Saturday nights, where he would have up to 18–20 drinks. Mr Kilic has abstained from consuming alcohol since 2018.

56. Mr Kilic also reported experimental drug use since age 17. He initially experimented with MDMA, and then later cocaine. He mainly used drugs at parties or when going out. Mr Kilic reported that as an adolescent, he would take illicit substances to cope with psychological distress that he was experiencing. He reported that he would often use prescription medication, alcohol and illicit substances at the same time if he was feeling down.

57. Mr Kilic participated in drug and alcohol counselling through Mr Schreiner’s practice, attending 12 treatment sessions between August 2018 and October 2021. He has had twice weekly sessions with another drug and alcohol counsellor, Mr Shuv Homsi, since January 2022. He reported that these sessions were beneficial.

58. Mr Kilic also commenced the Get Off Drugs Program with Giving Back Australia in September 2021. He is currently in Phase 3 of the Program. As of November 2022, he has four months of the program left. Mr Khodabaccus, the Director of Giving Back Australia, expressed concern for Mr Kilic’s tendency for self-destructive behaviour and his struggles with maintaining stability. Further, during psychological sessions from the first four weeks of the Get Off Drugs Program, constant mood changes in Mr Kilic were observed and it was recommended that Mr Kilic see his GP for referral to a psychiatrist. Mr Kilic consulted his GP, who prescribed an anti-depressant. In psychometric testing performed during these sessions, Mr Kilic was assessed as having severe depression and extremely severe anxiety and stress.

59. Mr Kilic reported experiencing episodes of anxiety after his arrest in 2018. He was on remand for two months and at this time, he experienced difficulty sleeping, panic attacks and general anxiety. His anxiety subsided upon his release.

60. When Mr Kilic was incarcerated between February 2020 and December 2020, and again between May 2021 and September 2021, he experienced low mood and anxiety.

61. Mr Schreiner opined in his psychological report that Mr Kilic showed no observable signs of emotional difficulty. The results of psychometric testing from May 2022 indicated that Mr Kilic was not experiencing emotional distress or depression.

62. Mr Schreiner diagnosed Mr Kilic with mild intellectual disability affecting his functional academics and health and safety.

63. Mr Kilic reported to Mr Schreiner that he had ceased contact with the co-accused, as well as “the people that he grew up with”. He expressed a wish not to be associated with any criminal activity again. He showed insight into his poor decision-making under the influence of drugs and alcohol.

64. Mr Schreiner suggested that drug and alcohol use and contact with anti-social associates significantly contributed to Mr Kilic’s offending behaviour. He also opined that Mr Kilic’s low intellectual functioning makes him vulnerable to influence and pressure by other people.

65. In his letter to the Court, Mr Kilic expressed remorse for his actions, recognising the impact that they had on other people, particularly the victim. He expressed a wish to continue counselling into the future. His parents, sisters and brother-in-law all stated that Mr Kilic is an attentive and supportive son, brother and uncle, and that he has taken steps to improve himself since his arrest.

Mr Acisulu’s Case on Sentence

71. Mr Acisulu relied upon the psychological report of Chafic Awit dated 13 June 2022.

72. Mr Acisulu was born in Sydney in 1996. He is the eldest of three siblings. He reports that his father was an alcoholic and a gambler, which led to many arguments within the home. His father would be violent to his mother at times during these arguments and, as the eldest child, Mr Acisulu would step in to protect his mother.

73. Mr Acisulu reported significant financial strain during his upbringing. His father reportedly lost significant sums of money through gambling. When Mr Acisulu was in Year 6 of primary school, his parents had saved up enough money to purchase an apartment; however, within a year, his parents had to declare bankruptcy due to his father’s gambling.

74. Mr Acisulu attended school until Year 11. Upon leaving school, he completed two years of a print finishing apprenticeship but did not finish the course. Mr Acisulu then worked as a courier for approximately 18 months, until his first period of incarceration.

75. When Mr Acisulu was around 14, he was sexually abused by a youth worker, after which he began to abuse alcohol and take illicit drugs. Mr Acisulu drank heavily until the age of 18. He smoked cannabis from age 13 and, after the incident with the youth worker, he began to use cannibis daily. He also began taking MDMA every weekend. At age 18, Mr Acisulu began using cocaine and prescription medications like Xanax. During his first period of incarceration, he was introduced to ice and heroin. He was addicted to heroin at the time of his arrest. Mr Acisulu has been abstinent from illicit substances since January 2022. He has put in a request to participate in the suboxone program in prison and is currently on the waitlist for this.

76. In November 2017, Mr Acisulu was imprisoned for two drug supply offences. He was in custody for two years. After his release in November 2019, he worked in demolition for a month. He was arrested for the current offences in February 2020 and has been in custody on remand since then.

77. Prior to his first period of incarceration, Mr Acisulu had been in a relationship for six months. They remained together whilst he was in prison. However, he found out after his release that she had cheated on him. He reported that this upset him greatly and that, in the weeks leading up to the offending behaviour, he went on a number of “drug benders” to overcome his feelings.

78. Mr Acisulu reported that he had anxiety and depression stemming back to childhood and his father’s alcoholism, gambling and abuse. This was exacerbated by the incident with the youth worker.

79. Mr Acisulu stated that this period of incarceration has been the most difficult, due to the COVID-19 isolation periods, limited contact with family, and the inmate tensions that have intensified since the pandemic. He reported to Mr Awit that this experience had been a wake-up call. During his meeting with Mr Awit, Mr Acisulu expressed remorse for his actions.

80. Mr Acisulu stated that he committed the offences to support his addiction. He intended to trade the two vehicles for heroin.

81. Mr Awit opined that Mr Acisulu was experiencing anxiety, depression, and substance use disorder, which at the time of offending impaired his judgment. Mr Awit opined that Mr Acisulu requires ongoing psychological intervention and drug rehabilitation.

82. In his letter to the Court, Mr Acisulu expressed remorse for his offending behaviour, recognising the impact upon the victim and the community. He stated that when he gets out of gaol, he would like to seek counselling for his addiction. He also stated that the consequences of COVID-19 restrictions in custody have motivated him to change once he is released from prison.

Objective Seriousness

Assault with intent to take and drive motor vehicle – Mr Acisulu

83. The offence involved some planning in that Mr Acisulu was driven to the scene by another person. The offence was targeted towards a luxury vehicle of considerable value. The offender’s interaction with the victim was brief. There was a conditional threat of violence but no actual violence used. There was no evidence of any damage to the vehicle, which was recovered. The offence was committed in a suburban neighbourhood and there were not many people around. The offence was committed for financial gain.

Aggravated assault with intent to take and drive motor vehicle

84. The offence was committed in the early hours of the morning on a suburban street where there some other people around. The circumstances of aggravation were that the offenders were in company and armed with a firearm. The offence involved some planning. The offence was targeted towards a luxury vehicle of considerable value. The firearm was pointed at the victim who was in the vehicle. One of the offenders chased after the victim after he ran away. The interaction with the victim was relatively brief. The offence was committed for financial gain. The offenders did not manage to take the motor vehicle because the victim fled, but the attempt was a serious one. The evidence does not permit me to find which one of the offenders held the pistol or if it was loaded at the time of the offence. However, the use of the pistol is a significant aggravating feature of the offence.

Possession of the pistol

85. The pistol was in the possession of the offenders and used to commit a criminal offence. They were both in possession of ammunition but there was no evidence that it could be used in the pistol. The pistol was unloaded at the time it was located by the police.

Supply prohibited drug – Mr Acisulu

86. Mr Acisulu had possession of 28.5g of MDMA secreted on his person. He told the police that he had it in his possession for the purpose of supplying some of it to others. The amount of the drug was more than 22 times the indictable quantity.

87. Mr Acisulu had a deprived upbringing in which he was exposed to alcohol abuse, domestic violence, gambling, abandonment by his father and sexual interference. He started using alcohol and illicit substances at age 14 to deal with the trauma that he had experienced. I am satisfied that his moral culpability for the offences is reduced to some extent: Bugmy v The Queen (2013) 249 CLR 571 and Hoskins v R [2021] NSWCCA 169 at [57]-[61] (Brereton JA).

88. Mr Kilic has a mild intellectual disability and was amenable to being easily led into the offending conduct. I am satisfied that his mental condition reduces his moral culpability for the offences to some extent: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1.

89. I have taken into account the maximum penalty for the offences and the applicable standard non-parole periods.

Deterrence

90. General deterrence is of significance in car-jacking and firearms offences. The penalty imposed must deter others from committing similar offences.

91. I accept that the weight to be afforded to general deterrence in Mr Kilic’s case should be reduced to some extent by reference to his mild intellectual disability.

92. There is also a need for specific deterrence. In Mr Acisulu’s case he has some criminal history arising from long term drug problems. He needs to understand by reference to the penalty imposed that if he continues to commit offences that he will be met with condign punishment. In Mr Kilic’s case he has a prior record of firearms offences and a serious personal violence offence for which he has received Intensive Corrections Orders (ICO). I accept that his mental condition played a causal role in his involvement in these serious offences and that makes him a danger to the community who must be deterred from committing further offences. On the other hand he has demonstrated a willingness and capability to rehabilitate himself from drugs and alcohol and he has not committed any other offences since 17 February 2020.

Aggravating Factors

93. The assault with intent to take and drive offence committed by Mr Acisulu was committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

94. The offenders committed the offences while they were on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. Mr Kilic was on a 15 month ICO at the time of committing these offences. The ICO was revoked and he served the balance of 10 months in full time custody. Mr Acisulu was on parole for an offence of supply a prohibited drug. He served the balance of the parole period of 11 months and 5 days.

Mitigating Factors

95. Mr Acisulu has some prospects of rehabilitation. He is still fairly young and has spent most of his adult life in prison. He is reaching an age where he will hopefully gain some insight into his poor choices. He is at risk of institutionalisation and must be given some chance to reintegrate into the community.

96. Mr Kilic has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Whilst on bail for these offences he has successfully completed a program of residential rehabilitation and is now managing to remain abstinent from drugs whilst in the community. I am satisfied that he has good prospects of rehabilitation.

97. Mr Acisulu demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. He has expressed remorse to Mr Awit and the Court and accepted responsibility for his actions. I am satisfied that he is genuinely contrite. His plea of guilty also indicates remorse.

98. Mr Kilic has demonstrated remorse - Mr Kilic expressed remorse to the authors of the report and to his family: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I am satisfied that he is genuinely contrite. His plea of guilty also indicates remorse.

99. I have taken into account the conditions imposed on prisoners in New South Wales in response to the Covid-19 pandemic and the impact those conditions have had on the offenders. I accept that those conditions will continue for some time into the future.

100. I have had regard to parity. There is nothing in the facts that allows me to differentiate between the roles of the offenders in the 17 February 2020 offence. It is appropriate that they receive the same sentences for the offences in which they are co-offenders. Mr Kilic has a slightly superior subjective case which I will allow for in the accumulation of the sentences and by finding of special circumstances.

101. I have considered s5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

Penalty

Mr Acisulu

102. Ozan Acisulu is convicted.

103. Mr Acisulu has been in custody since his arrest on 18 February 2020. He served the balance of his parole between 17 February 2020 and 21 January 2021 and a concurrent fixed term of 21 days between 17 February 2020 and 8 March 2020, by order of the State Parole Authority. I will backdate the sentence imposed to 18 August 2020 to partially accumulate the sentence imposed on the balance of parole period to take into account his pre-sentence custody.

104. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

1. s 154C(1) offence - 2 years and 6 months with a non-parole period of 1 year and 8 months;

2. s 154C(2) offence (taking into account the matter on the Form 1 – 3 years and 6 months with a non-parole period of 2 years and 4 months;

3. s 7(1) offence - 2 years with a non-parole period of 1 year and 4 months;

4. s 25(2) offence - 2 years.

105. I make a finding of special circumstances. The offender is still relatively young and has spent most of his adult life in custody. He also has drug issues. He is at significant risk of institutionalisation. He will benefit from a longer period of supervision on parole to assist him to reintegrate into the community.

106. I impose an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 6 months to date from 18 August 2020. The non-parole period will expire on 17 February 2024 and the head sentence will expire on 17 February 2026. Mr Acisulu will be eligible to be released on parole on 17 February 2024.

Mr Kilic

107. Aydin Kilic is convicted.

108. Mr Kilic was in custody from 17 February 2020 to 28 December 2020 as a result of the revocation of the ICO and from 3 May 2021 to 14 September 2021 bail refused, being a total of 449 days. I will backdate the sentence imposed to 24 March 2022 to partially accumulate the sentence imposed on the revocation of the ICO period to take into account his pre-sentence custody.

109. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

1. s 154C(2) offence (taking into account the matter on the Form 1) - 3 years and 6 months with a non-parole period of 1 year and 9 months;

2. s 7(1) offence (taking into account the matter on the Form 1) - 2 years with a non-parole period of 1 year.

110. I make a finding of special circumstances. This is the offender’s first time in custody and he has addiction issues and an intellectual disability that justify a longer period of supervision on parole.

111. I impose an aggregate term of imprisonment of 3 years and 8 months with a non-parole period of 1 years and 10 months to date from 24 March 2022. The non-parole period will expire on 23 January 2024 and the head sentence will expire on 23 November 2025. Mr Kilic will be eligible to be released on parole on 23 January 2024.

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Decision last updated: 15 December 2022