R v Fazlilar

[2018] NSWSC 1663

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fazlilar [2018] NSWSC 1663
Hearing dates:	14 September 2018
Date of orders:	28 September 2018
Decision date:	28 September 2018
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	See paragraphs [90]-[92].
Catchwords:	SENTENCING – remarks on sentence – murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) – where offender intended to inflict grievous bodily harm by shooting the deceased in the leg – where offender on ice and other drugs – where a lack of planning and impulsivity was involved SENTENCING – remarks on sentence – unauthorised possession of a firearm contrary to s 7 of the Firearms Act 1996 (NSW) – where pistol loaded – where offender had access to other ammunition – where possession of the pistol was not an isolated event – where offender coupled with offender’s use of ice and other drugs – where pistol had been misplaced by the offender at a brothel/strip club
Legislation Cited:	Crimes Act 1900 (NSW), s 19A Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 28, 47, Part 4, Div 1A, Table Firearms Act 1996 (NSW), s 7
Cases Cited:	Ayshow v R [2011] NSWCCA 240 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v R (1998) 194 CLR 610; [1998] HCA 57 R v Atai [2011] NSWSC 1617 R v Bolt [2013] NSWSC 895 R v Clarke [2014] NSWSC 1746 R v Filippou [2013] NSWCCA 92 R v Isaacs (1997) 41 NSWLR 374 R v Perry [2016] NSWSC 1562 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category:	Sentence
Parties:	Regina Hasan Fazlilar
Representation:	Counsel: Mr K Gilson (Crown) Mr M Austin (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Archbold Legal (Offender)
File Number(s):	2015/349430
Publication restriction:	Nil

Judgment

1. On 14 November 2015, Donovan Mileham was shot in the leg at close range in a hotel suite. His body was found two days later. He had bled to death. On 29 May 2018, a jury found Hasan Fazlilar guilty of the murder of Mr Mileham. They also found him guilty of an additional count of unauthorised possession of a pistol which occurred on 13 November 2015. Mr Fazlilar now stands to be sentenced for these offences.

2. The maximum penalty for the offence of murder is life imprisonment: s 19A(1) of the Crimes Act 1900 (NSW). The maximum penalty for an offence of possessing a firearm contrary to s 7(1) of the Firearms Act 1996 (NSW) is 14 years imprisonment. The Table in Part 4, Div 1A of the Crimes(Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) specifies a standard non-parole period of 20 years imprisonment for the offence of murder and a standard non-parole period of four years for unauthorised possession of a pistol. These maximum penalties and standard non-parole periods are guideposts to which I must have regard.

3. In sentencing the offender it is necessary for me first to determine the facts upon which he is to be sentenced. These facts must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378. I may not take facts into account in a way adverse to the interests of the offender unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to the offender are established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. In addition to determining the facts in relation to which the offender is to be sentenced, I am required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: see McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

Facts

5. The Crown case at trial relied upon the evidence of a witness who was present at the scene, Elias Dimarelis. He gave direct evidence of the circumstances of the shooting. His evidence was supported by other evidence in the Crown case including CCTV footage, DNA evidence, fingerprint evidence, telephone records, items found in the offender’s hired car linking him to the crime scene and other physical evidence. Having regard to all of that evidence, I am satisfied that the following facts are consistent with the jury’s verdict.

The Love Machine

6. In November 2015, the premises known as “The Love Machine” on Darlinghurst Road, Kings Cross, operated as a strip club and brothel. The club was owned by Bill Bayeh. Mr Dimarelis was Mr Bayeh’s business partner at the club at that time. Mr Dimarelis was in a relationship with one of the female workers at the club, Rebel-Anne King. The offender was a regular visitor to the club. He had been introduced to Mr Dimarelis by Ms King as a “potential big spender” and a “big client.” The deceased, Mr Mileham, had also been a visitor to the club over the previous months as he was friends with one of the women who worked there.

7. The offender, the deceased, Mr Dimarelis and Ms King were all at that time users of illicit drugs including methylamphetamine, known as “ice”, and cocaine.

Evening of 12-13 November

8. In the afternoon on Thursday, 12 November 2015, the deceased left his home on the Central Coast and travelled to Sydney to socialise. CCTV footage shows that, at 2:40am the following morning, he arrived at The Love Machine.

9. CCTV footage from within the club that night shows the offender, the deceased, Mr Dimarelis and Ms King all present at the club socialising. When the club closed both the deceased and the offender stayed the night. There was no evidence as to how long the offender and the deceased had known each other before this time but it may only have been a few days.

Possession of the firearm: 13 November 2015

10. As Mr Dimarelis was about to go to sleep at around 8:30am on Friday, 13 November 2015, he saw a pistol in one of the brothel bedrooms. He recognised the pistol as he had seen it in the offender’s possession on about four or five previous occasions, both at the club and at the offender’s home. Mr Dimarelis gave evidence at the trial that the offender “always had it on him, either down the front of his pants… or the back of his pants”. Mr Dimarelis could not say if it was loaded on those occasions. During the evening of 13 November 2015 he had seen the pistol poking out of the front of the offender’s pants whilst he was at the club.

11. After seeing the pistol on the bed, at around 8:40am, Mr Dimarelis returned it to the offender. This was captured by CCTV footage taken within The Love Machine which shows him returning the pistol to the offender in a hallway outside another room. The CCTV footage also contained some audio recording (there was evidence that although CCTV cameras had been installed inside The Love Machine, it was not known by its management that sound would also be recorded).

12. After Mr Dimarelis returned the pistol to the offender, the offender put it down the front of his pants. It is not known whether the gun was loaded then or not. Mr Dimarelis gave the following evidence about this at the trial:

“Q:   Were you worried by the fact it was present in the club

A:    It worried me at first but after having seen it many times he never really waved it around or anything like that and I just became accustomed to it.

Q:    What do you mean he never waved it…?

A:    He never really pulled it out or threatened anyone at any time so…

Q:    You became used to it?

A:    Yes.”

13. After Mr Dimarelis gave the offender the pistol he returned to his room and went to sleep.

13 November 2015

14. The offender and the deceased remained at the club for most of Friday, 13 November 2015. During this time, Ms King booked a room at the Fraser Suites in Kent Street Sydney CBD for that night. It was not entirely clear on the evidence at trial why the room at the Fraser Suites was booked. Mr Dimarelis’ evidence was that he thought it was “just to kick on, party somewhere away from the club.”

15. At about 8.30pm, the deceased and Ms King travelled from The Love Machine to the Fraser Suites at which time Ms King paid for the room in cash. CCTV footage taken at the Fraser Suites recorded this. The two of them then went to room 3109. There was a safe in that room. Records show that it was opened and then locked at 8:46pm. The two of them left the Fraser Suites at 8:49pm and went to a bar on George Street where they were joined by a man named John Antony. The three of them then returned to The Love Machine at about 9:50pm where they continued socialising with the offender and Mr Dimarelis.

14 November 2015

16. The deceased, the offender, Mr Dimarelis, Mr Antony and Ms King remained at The Love Machine until the early hours of Saturday, 14 November 2015. During that time Mr Dimarelis saw both the offender and the deceased using “ice”.

17. CCTV footage shows that between 5:20am and 5:50am the offender, the deceased, Ms King, Mr Dimarelis and Mr Antony left The Love Machine.

18. At around 6:05am, the offender and Mr Dimarelis drove a rented white Toyota Corolla into the Cinema Centre Car Park on Kent Street, near the Fraser Suites. The offender had previously rented this vehicle from Bayswater Car Rental. It was fitted with a GPS tracking device by the rental company which recorded the vehicle’s movements. Those records were also in evidence.

The Fraser Suites: 14 November 2015

19. The deceased and Mr Antony entered the Fraser Suites at about 6:00am and proceeded to room 3109. The offender and Mr Dimarelis met with Ms King at the ground floor lift lobby of the Fraser Suites at 6:09am and made their way to room 3109 as well. Records show that the safe in room 3109 was opened and then locked again at 6:18am. CCTV footage shows that Ms King left the Fraser Suites at about 6:30am and did not return.

20. After Ms King left the Fraser Suites, the men drank Chivas Regal and used both cocaine and methylamphetamine. Mr Dimarelis observed the offender and the deceased drinking alcohol and consuming cocaine. He described the mood as “good”, “relaxed”, “completely amicable” and stated that there was “nothing untoward at all”.

21. Records show that the safe in the room was opened again at 11:30am and not locked again after that time. At around this time, Mr Dimarelis was coming out of the bathroom, which was off the bedroom, and heard a beeping sound associated with the opening of the safe. He walked past the deceased and the offender who were talking near the safe. He saw that the safe was open and observed the offender removing his gun from the safe and putting it down his pants. In the safe, near the offender’s hand where the gun was, he also saw two boxes stacked on top of each other. He believed those boxes contained bullets.

22. Shortly thereafter, Mr Dimarelis went to go to sleep in the bedroom. Before he went to sleep, Mr Antony left the Fraser Suites to attend the Royal Prince Alfred Hospital (records show that he arrived there at 1:09pm). He did not return. From that time the only three persons left in the hotel suite were Mr Dimarelis, the offender and the deceased.

23. When Mr Dimarelis awoke a few hours later he decided to leave the apartment. As he walked from the bedroom to the lounge room the offender approached him and thrust the deceased’s mobile telephone towards his face. The screen displayed the words “Police Crime.” A subsequent analysis of the deceased’s mobile telephone confirms that the deceased had the number for “Crime Stoppers” saved under this contact name. The offender then said to Mr Dimarelis something like “what do you think of this?” The deceased was sitting on the couch watching TV at the time.

24. The offender then thrust the mobile telephone in the deceased’s face. The offender was mumbling in a low guttural tone then called the deceased a “dog”. The offender grabbed hold of the deceased’s shirt collar with one hand and started slapping him on the face with the other hand. Mr Dimarelis said “Huss what are you doing? He’s harmless.”

25. The offender then pulled the pistol from the top of his pants and started tapping it on the deceased’s head near his temple. The deceased was in a foetal position on the couch trying to inch away from the offender’s grasp. Mr Dimarelis described what happened next in these terms:

“Donovan was just whimpering at that stage and Fazlilar was mumbling but I couldn’t make out what it was, I wasn’t close enough. I heard “dog” a few times. That is probably the only thing I could make out before he lowered the pistol from his head then started pointing it towards his leg… (the deceased) was in a foetal position and he was trying to get away… he was still in Hasan’s grip… in that split second he lowered the gun to around the leg area and then he fired.”

26. At the point the pistol was fired, the gun was partially obscured from Mr Dimarelis’ sight. He heard the deceased scream as he jumped violently to his right. The deceased was rocking back and forth on the other side of the lounge and was in obvious pain. He said to Mr Dimarelis, “Louie, he shot me.” Mr Dimarelis left almost immediately. CCTV footage shows him leaving the Fraser Suites at 3.58pm.

27. CCTV footage further shows that the offender exited the Fraser Suites eight minutes later, at about 4:06 pm. He was wearing the same clothing as when he entered including his black shoes with white soles. When he left the Fraser Suites he had the hood of his top pulled over his head and his face is not visible in the CCTV footage. The footage then shows the offender walking over to speak to a man outside the Fraser Suites near a delivery van. Police inquiries with the delivery van company located the relevant witness who gave evidence at the trial. He gave evidence that he had known the offender for a number of years but had not seen him for some time. He was working for a delivery company that just happened to have a job in the vicinity at that time. His evidence, which was consistent with what is depicted in the CCTV footage, was that when the offender recognised him he came over and spoke with him briefly. He described the offender as being very hard to understand.

Events following the shooting

28. Mr Dimarelis went straight back to The Love Machine and informed Ms King of what had occurred. At two subsequent meetings between Mr Dimarelis, Ms King and Mr Bayeh, it was decided that the police should not be contacted. These conversations were recorded by way of CCTV footage and played at the trial. No efforts were made by the offender or those at the club to check on the deceased’s welfare or to obtain medical assistance.

29. There is no direct evidence as to where the offender went immediately after the shooting. At that time he lived by himself at a unit in Redfern. CCTV footage captured him at around 1:00am on Monday, 15 November, with a friend Deha Kelekci, attending the car park opposite the Fraser Suites where the offender had left the hire car he had driven to the Fraser Suites early on 14 November. The offender’s vehicle is seen to “tailgate” another vehicle out of the car park without paying.

30. CCTV footage shows that Mr Dimarelis and Ms King visited the offender in his Redfern unit some time before lunch on Sunday 15 November 2015. The evidence of Mr Dimarelis at trial was that the offender said something to the effect of “It’s okay, it was just in the leg, he’ll be fine. He’s stupid not to get out of there” and that “[h]e’s either with the police or he’s in hospital.” Mr Dimarelis also gave evidence that the offender said to him, “[y]ou’ve got nothing to worry about, there’s nothing here… Look, I’ve got nothing here… Normally I keep it here, it’s not here, nothing here.” Mr Dimarelis understood the offender to be referring to the pistol.

31. At around 10:50am on 15 November 2015, Ms King telephoned the Fraser Suites and extended the rental on room 3109.

16 November 2015

32. At about 2:30am on Tuesday, 16 November Ms King left Mr Dimarelis at a hotel near the Fraser Suites and about 2:45am she entered room 3109. CCTV footage shows that she had a large handbag with her when she entered the Fraser Suites. The Crown case was that she had gone to the room to retrieve the weapon. She left and returned to the hotel where she met with Mr Dimarelis. She told him that the body of the deceased was in the room. There was then subsequent contact between her and the offender.

33. At 6:14am on 16 November 2015, Mr Dimarelis telephoned “Triple 000” and reported that he was worried about a friend who he had been partying “pretty hard” at room 3109 of the Fraser Suites. He advised the operator that his friend was all right when he left him but he had not heard from him and could not get through to him on his mobile telephone. At that time, 38 hours and 20 minutes had elapsed since the offender shot the deceased.

34. The deceased’s body was located in the apartment by Fraser Suites employees at about 6:40am on 16 November 2015. The police arrived just before 7:00am.

35. Inside room 3109 police located the offender’s fingerprints on the kitchen table, bathroom door, bedroom door, kitchen tap, red “Winchester” plastic tray and on the outside of a white plastic bag. The fingerprints of the deceased, Ms King and Mr Antony were also located. The deceased’s blood was found on the lounge, chaise, carpet and tiles. No weapon was found in the room but a quantity of .32 calibre ammunition was found in the safe. The table in the room was strewn with the indicia of drinking and drug taking.

36. The police commenced surveillance on the offender’s rental car in Redfern. The offender and Mr Kelekci were pulled over by police while driving that car at around 4:00pm. The police located the shoes that the offender was wearing at the time of the shooting. Blood was found on the tongue of one shoe. It was later found to contain a DNA profile matching that of the deceased. A DNA profile matching the offender was found inside the shoes. A quantity of .38 calibre bullets was located under the rear seat of the car and the offender’s fingerprint was located on the packaging. In addition, a Nokia phone belonging to the offender was located in the vehicle. The offender exercised his right to silence and was released.

37. On 15 November 2015, the deceased’s mobile phone was found in the gutter on Phillip Street, Waterloo. It was inside a white plastic shopping bag. It was handed into police on 18 November 2015.

38. The offender’s flat in Redfern was searched by police on 26 November 2015. They located an electronic key for the Fraser Suites and the remnants of a burnt red t-shirt in the shower area. The CCTV footage shows that the offender was wearing a red t-shirt on the day of the shooting.

39. The firearm was never located.

Post Mortem findings

40. The forensic pathologist gave evidence that the deceased had a single gunshot entry wound on the left upper back of the thigh. The bullet had travelled through skin and soft tissue, passed the medial of the left thigh bone over the left anterior rim of the pelvis, through a portion of the large bowel and through the left internal iliac vein at the level of the lumbosacral spinal column. It was the rupturing of the iliac vein that caused the significant and fatal loss of blood from which the deceased died.

41. There were abrasions detected on the deceased’s forehead and within the mucosa of his upper lips. These injuries were said to be consistent with the deceased being assaulted to the head prior to the shooting.

42. It was the opinion of the forensic pathologist that Mr Mileham would have died within “a matter of minutes.” She also stated that had there been timely provision of medical care he would have had a reasonable chance of survival.

The arrest of the offender

43. The offender was arrested on 28 November 2015 and participated in an electronically recorded interview with police. He denied knowing the deceased, Ms King or Mr Dimarelis. He denied ever being present at the Fraser Suites. He denied it was him in the relevant CCTV footage. He could not explain the presence of his fingerprints inside apartment 3109, the presence of bullets in the hire car or the key in his apartment. He could not account for the presence of the deceased’s blood on the shoe in the Corolla. He denied ever having possessed a firearm.

43. The offender did not give evidence at the trial nor did he run a positive defence. His defence to the charge proceeded on the basis that the Crown could not prove beyond reasonable doubt that he was in the room at the relevant time, although during closing addresses it was conceded that it was open to the jury to so find. The jury was invited to reject the evidence of Mr Dimarelis, who had received a discount for his offer to give evidence against the offender. During the trial it was suggested to Mr Dimarelis that he was in fact the shooter. Mr Dimarelis denied this.

No finding of remorse

45. The offender did not give evidence at the proceedings on sentence and, through his counsel, maintained his innocence. He indicated to his psychiatrist that he proposes to appeal against his conviction.

46. It is well established that every person charged with a criminal offence is entitled to defend his or her charges and no offender is to be penalised for having done so. The relevance of the offender’s decision to maintain his innocence is simply that he cannot be afforded any discount for pleading guilty nor can there be any mitigation of his sentence for displaying genuine remorse. In addition, his attitude has some relevance for his prospects of rehabilitation, which I will address below.

Co-offenders

47. Three other persons were arrested in relation to the assistance they afforded the offender after the shooting. Mr Dimarelis pleaded guilty to being an accessory after the fact to murder and possessing the firearm on Friday, 13 November 2015 (when he gave it to the offender). Ms King and Mr Kelekci both ultimately pleaded guilty to the lesser offence of hindering police contrary to s 315(1) of the Crimes Act. Of these three persons only Mr Dimarelis gave evidence at the trial. No issues of parity apply to these sentence proceedings.

Seriousness of the offences

Murder

48. The murder charge was left to the jury on the basis that if they were satisfied either that the offender intended to inflict grievous bodily harm or to kill the deceased then the requisite mental element for the offence of murder had been established. At the proceedings on sentence both the Crown Prosecutor and Mr Austin submitted that the appropriate finding would be that the offender intended to inflict grievous bodily harm to Mr Mileham when he shot him in the leg. I have assessed the evidence going to this issue and I am satisfied that this is the case.

49. The only eyewitness account of the shooting was Mr Dimarelis who gave evidence that the gun was partially obscured at the time of the shooting but that after the offender initially pointed the gun at the deceased’s head he moved it down and pointed it towards his leg before discharging the single round.

50. The evidence is that the offender and the deceased were getting on well until minutes before the shooting. I am satisfied that this senseless killing occurred when the offender, who had been on an alcohol and drug-taking binge, saw the “Police Crime” (Crime Stoppers) telephone number saved in the deceased’s contacts and formed an irrational and incorrect suspicion that the deceased was some form of police informer and deserved to be punished in some way. This inference can be comfortably drawn given the fact that the offender could be heard uttering the word “dog” just prior to the shooting.

51. There is no evidence that this was a planned shooting nor any suggestion that the offender took the gun out of the safe with an intention to shoot the deceased. Despite this, the evidence clearly establishes that the offender had a loaded pistol in his hand at the time of the shooting. There was no suggestion in the evidence of Mr Dimarelis that the offender paused to load the pistol after seeing the mobile telephone contact and before the shooting. I am satisfied that it was the same pistol that the offender was seen to carry on previous occasions. Given the circumstances of the shooting, it seems likely that Mr Mileham would be alive today had the offender not been in possession of a loaded firearm at the time.

52. I am satisfied that the offender had engaged in “extreme drug use” prior to the shooting. Mr Dimarelis was unable to decipher what the offender was saying prior to the shooting besides the word “dog” and the witness who saw him immediately after leaving the Fraser Suites could barely understand what he was saying. The offender’s thinking was no doubt affected to some extent by his drug use. This evidence supports the finding that the offence was unplanned.

53. Another aspect that is relevant to my assessment of the seriousness of this offence is that, after the shooting, the offender did not call for medical assistance. He left the Fraser Suites eight minutes later. The evidence of the forensic pathologist was that it is likely that Mr Mileham would have died within minutes but if he had received prompt medical treatment he might have survived. At the time Mr Dimarelis left the suite, Mr Mileham was still on the couch. His body was found two days later lying on the floor some distance away on his back with his pants unzipped. There is insufficient evidence for me to make any finding as to whether the offender dragged him to that position or whether the deceased made his way to that position before passing out.

54. There is evidence that the offender told Mr Dimarelis the day after the shooting that Mr Mileham had only been shot in the leg and was probably either at hospital or with police. This fact was relied upon by the offender’s counsel as the basis for a submission that he may not have been aware of the significance of the shooting and that it was open to the Court to find that the offender believed assistance was going to come to the deceased relatively quickly given that a shooting had occurred in a serviced apartment.

55. Although there is insufficient evidence for me to be satisfied beyond reasonable doubt that Mr Mileham had died before the offender left the room, I am satisfied that the offender must have at least realised that he needed medical attention at the time he left. The deceased had called out to Mr Dimarelis that he had been shot and there was blood at the scene which, I am satisfied was there when the offender left the room.

56. I have had regard to all of the above features in assessing the objective seriousness of the offence. It was submitted on behalf of the Crown that I would assess the seriousness of this offence as being slightly below the mid-range. It was submitted on behalf of the offender that I would find the objective seriousness to be below mid-range on the basis that the offender shot the deceased in the leg without an intention to kill. It was suggested that this placed this offence into a different category to many other murders where a firearm is used.

57. Despite the use of a firearm in the killing of Mr Mileham, given the lack of planning and the fact that I am satisfied there was no intention to kill the deceased, I have assessed the seriousness of this offence as falling just below the mid-range of objective seriousness.

Possess Firearm

58. The offence contrary to s 7(1) of the Firearms Act relied upon the evidence of the offender being in possession of the pistol at The Love Machine on 13 November 2015, the day before the shooting. The elements of that offence are possessing or using a pistol or prohibited firearm without a licence or permit.

59. In the decision of Ayshow v R [2011] NSWCCA 240, Johnson J (with whom Bathurst CJ and James J agreed) identified features of this offence which bear upon its objective seriousness. These include whether the pistol is loaded and whether the offender possessed other ammunition. It was held that the fact that a pistol is possessed for one’s own protection is not a matter of significant, if any, mitigation, given the policy underlying the offence. Significantly, the possession of a loaded pistol by a person with poor impulse control and instability in mood was said to give rise to issues of public safety, protection of the community and the need for a significant allowance of personal and general deterrence.

60. In assessing the seriousness of this offence, I have had regard to the fact that the offender’s possession of the pistol was not an isolated event. Mr Dimarelis’ evidence is that he had seen him in possession of it on prior occasions. He is to be sentenced on the basis that he was in possession of the pistol at The Love Machine, whilst other people were around, in circumstances where he was a regular user of ice and other drugs. The evidence is that the offender had in fact misplaced the pistol leaving it in a bedroom in The Love Machine. This presents a significant risk to public safety.

61. It was submitted on behalf of the Crown that the pistol was obviously part of the offender’s “stock in trade”. Although that may well be the case, there was no evidence before the Court as to what that trade was.

62. The Crown urged that I would assess the objective seriousness of this offence as being well above the mid-range. Mr Austin did not directly challenge the making of such a finding but submitted that the sentence for this offence should be served concurrently with the sentence for the murder.

63. I have had regard to all of these factors and have assessed the objective seriousness of being above mid-range for an offence contrary to s 7(1) of the Firearms Act.

Victim Impact Statement

64. A victim impact statement was tendered to the Court pursuant to s 28(3) of the Sentencing Act. It was submitted on behalf of the Crown that the victim impact statement should be taken into account in the manner required by s 3A(g) of the Sentencing Act. That is, that I would have regard to the fact that one of the purposes of sentencing is to recognise the harm done to the victims of the crime and the community. In sentencing the offender I have had regard to the fact that every unlawful taking of a life harms the community in some way.

65. The victim impact statement was prepared by the deceased’s mother, Cynthia Baillache. Ms Baillache read the statement to the Court. At the time she did so, she produced a large photograph of Mr Mileham. She described him as her firstborn son and the older brother of Dustan and Danie. She told of how the crime had left the family completely broken and that they can never heal from the “internal agony”. She described Mr Mileham as having had an open heart for everyone and how he comfortably associated with people from all walks of life. He was a grandson, a nephew, a cousin, a workmate and a loyal friend to many. She stated that they have all lost the opportunity of sharing a future with Mr Mileham - a loving cherished family member and friend.

66. It is clear that Mr Mileham’s senseless death has had a significant impact on those who loved him and has changed forever the lives of many of his family and friends. No sentence that the Court might impose could adequately reflect that loss and no sentence could possibly ease the grief of those who were close to him. On behalf the Court, I extend my condolences to the family and friends of Mr Mileham for their loss.

The offender’s custodial and criminal history

67. The offender’s only prior criminal conviction was an offence of assault occasioning actual bodily harm in company committed on 19 March 2011. He was fined $1,000 and placed on a bond for 12 months in relation to that offence. It was submitted on behalf of the offender that this offence related to an incident when he was a security guard and was a work-related assault. His plea of self-defence had not been successful.

68. The offender has been in custody since his arrest on 28 November 2015. It is his first time in custody. There was no evidence put before the Court that he had received any disciplinary charges whilst in custody.

The offender’s personal circumstances

69. The offender did not give evidence at the proceedings on sentence and the only evidence relied upon by him was a report from Dr Kerri Eagle, forensic psychiatrist, dated 8 September 2018. Dr Eagle was not required for cross-examination. I have taken the following history from her report.

70. The offender was born in Turkey in 1985. He is now 33 years of age. He immigrated to Australia when he was about 17 years old to study a diploma in business management.

71. He described to Dr Eagle a childhood characterised by domestic violence. His parents were both volatile. He went to primary school and was a good student but described that being a child in Turkey was “not safe.” He described the government at that time as being “too religious.” He described there being no freedom of speech and that he was afraid he would be arrested.

72. After he arrived in Australia he studied and worked at a duty-free store for two to three years and then became a security guard.

73. The offender has been married to his wife since he was 20 years old. It is the only serious relationship he has been in. There was evidence at the trial that the offender was living alone at the time of these offences and it appears that he and his wife were separated at that time. She was present to support him for the proceedings on sentence. The offender described having no other support in Australia. His wife told Dr Eagle that the offender had always worked and that, when she first met him, he was studying and inspired her to do the same. She described him as being very dedicated to his job as a security officer. When he was found guilty of the work-place assault, it was a substantial blow to him “mentally and physically”.

74. The offender also told Dr Eagle that he had engaged in drug and alcohol programs in custody.

Psychiatric assessment

75. Dr Eagle diagnosed the offender as having a severe substance use disorder and said that he was in remission in his current custodial environment. He had reported the regular use of cannabis, methamphetamine and cocaine since 2010. His drug use was so severe he had reported hearing voices at times. She noted that he does not display any pervasive traits indicative of any anti-social personality pattern or overt pro-criminal attitudes.

76. As to the risk of the offender’s future violent offending Dr Eagle noted the inherent limitations in any process of risk assessment. She identified that the offender had some historical risk factors for future violence including a history of violence, substance use, unemployment and traumatic experiences. She noted that little is known about his background prior to his migration to Australia. His substance use disorder is likely to be the most significant factor associated with the index offence. Dr Eagle opined that the offender has used illicit substances instead of healthier coping mechanisms in the past.

77. Dr Eagle’s opinion was that if he was able to address his substance abuse by engaging in a substance use rehabilitation programs, and access psychological interventions to improve his coping skills, his prospects of rehabilitation are optimistic.

Future prospects

78. The report of Dr Eagle and the evidence of the circumstances of these offences indicate that the underlying feature of the offender’s criminal activity is his excessive drug use. His criminal history discloses no suggestion of the offender being predisposed to involvement in serious violent conduct when not abusing drugs.

79. There was no evidence before the Court as to what the offender’s means of support were at the time of the shooting. He was said to have been unable to obtain employment since his criminal conviction in 2011. The evidence at trial disclosed that he rented an apartment alone in Redfern, regularly hired a car and was known as a big spender at The Love Machine. Although it is to be inferred that he was supporting himself somehow, I am not able to make a finding on the evidence before me as to what that basis was. I note that the offender has only one prior criminal conviction.

80. It would appear that after the offender lost his job he was unable to obtain further employment due to his criminal record. He lost this stability and commenced abusing drugs which continued up until the time of his offending.

81. Given the offender’s lack of contrition, there is a question as to how to assess the offender’s prospects of rehabilitation and risk of further offending. Whilst Dr Eagle was guarded with respect to his prospects of rehabilitation and future dangerousness, I am satisfied that there are potentially some prospects of rehabilitation.

82. I propose to sentence the offender on the basis that his prospects of rehabilitation are reasonably good should he be able to abstain from further illicit drug use on his release from custody.

Other cases

83. I was provided with a number of other cases which, it was submitted, would assist in the judicial task I am to perform. Both counsel referred to the decision of Grove J in R v Atai [2011] NSWSC 1617 in which the offender was sentenced to an 18 year non-parole period with a balance of six years for murder. Mr Austin distinguished that case on the basis that Mr Atai had used a firearm to shoot into a house in circumstances where he was a stranger to the men socialising inside and was not particularly concerned with who he killed. That sentence concerned a murder based on reckless indifference to human life. I did not find that decision to be of direct relevance.

84. The Crown drew my attention to the decisions in R v Perry [2016] NSWSC 1562, R v Bolt [2013] NSWSC 895. R v Clarke [2014] NSWSC 1746 and R v Filippou [2013] NSWCCA 92. The common factor in these matters was that there was no pre-meditation or planning involved in the murders. Although I have had regard to the general sentencing principles derived from those decisions, I have not found them to be of particular assistance given their differing facts and subjective features.

Other relevant factors

85. I have already indicated that in sentencing the offender I have had regard to the need to recognise the harm done to secondary victims and the community when a life is taken. I have also had regard to all of the other purposes of sentencing set out in s 3A of the Sentencing Act, in particular, the need for general deterrence.

86. With respect to the firearm offence, Mr Austin submitted, with reference to Pearce v R (1998) 194 CLR 610, that there was continuous possession of the firearm which culminated in its use and that ultimately, I would not accumulate the sentences in those circumstances. I accept that there is some degree of overlap between the two offences. However, the offences occurred on different dates and I am satisfied that there needs to be a degree of accumulation as between the two sentences. I propose to accumulate the sentences to the extent of 18 months.

87. It was not submitted that I would find that there were special circumstances to justify increasing the parole period of the sentence I am to impose. Counsel accepted that the sentence would be a lengthy one which would allow for a considerable period on parole in any event. Despite this, I propose to vary the statutory ratio slightly in relation to the murder sentence in order to maintain the statutory ratio of the effective sentence I propose to impose.

88. It is necessary to give credit for the period the offender has been in custody since his arrest and so the sentence will be backdated: s 47(3) of the Sentencing Act.

89. As the offender is convicted of a “serious violence offence”, it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence: s 25C. I ask the offender’s solicitor to undertake that task on the Court’s behalf.

Conviction and sentence

90. Hassan Fazlilar, for the offence of unauthorised possession of a pistol contrary to s 7(1) of the Firearms Act, you are convicted and sentenced to imprisonment for six years with a non-parole period of four years and six months. That sentence is to date from 28 November 2015. The non-parole period will expire on 27 May 2017.

90. Hassan Fazlilar, for the offence of murder you are convicted and sentenced to imprisonment for a term of 24 years and six months with a non-parole period of 18 years. That sentence is to date from 28 May 2017. The non-parole period will expire on 27 May 2035.

91. The total sentence is one of 26 years with a non-parole period of nineteen-and-a-half years to commence on 28 November 2015 and which will expire on 27 November 2041. You will become eligible for release on parole on 27 May 2035.

Decision last updated: 01 November 2018