R v Dastan - [2024] NSWSC 55

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dastan [2024] NSWSC 55
Hearing dates: 8 December 2023
Date of orders: 23 February 2024
Decision date: 23 February 2024
Jurisdiction: Common Law - Criminal
Before: Harrison CJ at CL
Decision:
(1) For the murder of Craig Anderson on 27 May 2019 at Doonside in the State of New South Wales, sentence Cem Jim Dastan to imprisonment for 21 years commencing on 27 May 2019 and expiring on 26 May 2040 with a non-parole period of 15 years and 6 months expiring on 26 November 2034.
(2) For the offence of participating in a criminal group on 27 May 2019 at Doonside in the State of New South Wales, sentence Cem Jim Dastan to imprisonment for 18 months commencing on 24 August 2022 and expiring on 23 February 2024.
(3) The first date upon which Mr Dastan will become eligible for release on parole is 27 November 2034.

Catchwords:
CRIMINAL LAW – murder – sentence for murder – where offender sought retribution against victim based on false assumption about the victim’s role in an assault on the offender’s brother – considerable planning to obtain a gun and assistance from co-offenders – victim shot four times in his own home – strong need for general deterrence – no contrition or remorse and persistent denial of culpability – reasonable prospects of rehabilitation – impoverished upbringing and strong subjective case

Legislation Cited:
Crimes Act 1900 (NSW) s 93T
Crimes (High Risk) Offenders Act 2006 (NSW) s 25C

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v Fairweather; R v Khoury [2023] NSWSC 814
R v ZZ [2023] NSWSC 506
Thach v R [2018] NSWCCA 252

Category: Sentence
Parties: Rex (Crown)
Cem Jim Dastan (Offender)
Representation:
Counsel:
P Hogan with A Terracini (Crown)
J Ellis (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
George Sten & Co (Offender)

File Number(s): 2019/166539
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: On 27 May 2019, Craig Anderson was fatally shot at Mr Anderson’s home at 5 Meridian Place, Doonside. On 19 June 2023, Mr Dastan was found guilty by a jury of Mr Anderson’s murder following a trial over which I presided. The offence of murder carries a maximum penalty of life imprisonment with a standard non-parole period of 20 years. Mr Dastan was also found guilty of participating in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 5 years. Mr Dastan is now to be sentenced for these offences.
It is uncontroversial that I may not take any fact into account in a way that is adverse to Mr Dastan’s interests unless I am satisfied of that fact beyond reasonable doubt. Mr Dastan bears the onus on the balance of probabilities of proving any matter that he contends is favourable to him.
The Crown case at trial was that…

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 R v Dastan

Details

AGLC: R v Dastan [2024] NSWSC 55
Case: [2024] NSWSC 55
Decision Date: 23 February 2024

CaseChat Overview and Summary

In the case of R v Dastan, the accused, Dastan, stood trial for the murder of the victim, which occurred in his own home. Dastan had sought retribution against the victim, driven by a false belief that the victim was involved in an assault on Dastan’s brother. The incident involved considerable planning, including the acquisition of a firearm and the involvement of co-offenders. The victim was shot four times, resulting in his death.

The court was required to address several legal issues, including the severity of the crime, the level of planning and premeditation, the absence of remorse or contrition, and the prospects for rehabilitation. The court had to weigh these factors against the need for general deterrence, as well as the personal circumstances of the offender, which included an impoverished upbringing.

In reaching its decision, the court noted the significant planning and premeditation involved in the crime, as well as the absence of remorse. Despite acknowledging the reasonable prospects for rehabilitation and the subjective circumstances of the offender, the court ultimately concluded that the need for general deterrence and the severity of the crime warranted a substantial sentence. The court found that the factors in mitigation did not sufficiently outweigh the need for punishment and deterrence.

The court sentenced Dastan to a term of imprisonment, reflecting the gravity of the offence and the need for general deterrence. The specific details of the sentence, including the length and any parole conditions, were outlined in the judgment.

Orders