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R v Fazlilar

R v Fazlilar

Case [2018] NSWSC 1663 28 September 2018

Sentencing

Mens Rea & Intention

Unauthorised Possession of a Firearm

Criminal Law

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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

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.
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…

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 Fazlilar

Details

AGLC: R v Fazlilar [2018] NSWSC 1663
Case: [2018] NSWSC 1663
Decision Date: 28 September 2018

CaseChat Overview and Summary

The case of R v Fazlilar involved the appellant, Fazlilar, who was charged with the murder of a man he shot in the leg, contrary to section 18(1)(a) of the Crimes Act 1900 (NSW), as well as the unauthorised possession of a firearm under section 7 of the Firearms Act 1996 (NSW). The appellant, under the influence of ice and other drugs, shot the deceased in an impulsive act of violence, which ultimately led to the deceased’s death. The circumstances of the offence and the appellant’s state of mind at the time were central to the court’s considerations in determining an appropriate sentence.

The legal issues before the court were whether the sentence should reflect the impulsive nature of the crime and the appellant’s drug-influenced state, and whether the unauthorised possession of the firearm warranted a separate and concurrent sentence. The court had to balance the severity of the murder charge with the appellant’s lack of planning and impulsivity, as well as his repeated unauthorised possession of the firearm in light of his drug use and the circumstances of the offence.

The court acknowledged the significant impact of the appellant’s drug use on his actions and decision-making capabilities. Despite this, it recognised that the appellant's actions, though impulsive, resulted in the death of another human being, necessitating a severe punishment. The court found that the appellant’s actions warranted a lengthy custodial sentence, reflecting both the gravity of the murder charge and the repeated unauthorised possession of the firearm. The court imposed a sentence of imprisonment, with a non-parole period set to reflect the need for deterrence and to protect the community.

The final orders included a sentence of imprisonment for the murder charge with a non-parole period and a concurrent sentence for the unauthorised possession of the firearm. The court's decision underscored the gravity of the offences, the appellant's drug use, and the need to balance these factors in determining an appropriate punishment.

Orders