R v Kilicaslan
[2015] ACTSC 39
•13 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Ferhat Michael Kilicaslan |
Citation: | [2015] ACTSC 39 |
Hearing Date(s): | 13 February 2015 |
DecisionDate: | 13 February 2015 |
Before: | Refshauge J |
Decision: | 1. Ferhat Michael Kilicaslan be convicted of, on 13 November 2013, possessing methylamphetamine for supply. 2. Ferhat Michael Kilicaslan be sentenced to 12 months imprisonment, to commence on 10 August 2016, cumulative as to four months on the sentence he is currently serving. 3. Ferhat Michael Kilicaslan be convicted of possessing ammunition, on 13 November 2013, without authority. 4. Ferhat Michael Kilicaslan be fined $400 payable forthwith, with s 116ZP of the Crime Sentence Administration Act 2005 (ACT) to apply to that fine. 5. Ferhat Michael Kilicaslan be convicted of possessing a gun barrel, on 13 November 2013, without authority. 6. Ferhat Michael Kilicaslan be fined $1000 payable forthwith, with s 116ZP of the Crime Sentence Administration Act 2005 (ACT) to apply to that fine. 7. Ferhat Michael Kilicaslan be convicted of possession of heroin on 13 November 2013. 8. Ferhat Michael Kilicaslan be sentenced to imprisonment for six months, to commence on 10 April 2017, cumulative on the sentence for possession of methylamphetamine for supply as to two months. 9. A new non-parole period be set to start on 10 October 2012 and to end on 9 April 2015. 10. The charge of possession of goods, reasonably suspected of being stolen, be dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence - Possession of a drug of dependence – Possession of a drug of dependence for sale or supply – Unauthorised possession of ammunition – Unauthorised possession of a barrel for a firearm – Breach of deferred sentence order – Offender seeking rehabilitation |
Legislation Cited: | Crime Sentence Administration Act 2005 (ACT), s116ZP Crime Sentencing Act 2005 (ACT), ss 7, 66 |
Cases Cited: | R v DF (No 2) [2012] ACTSC 3 R v Kilicaslan, unreported, ACTSC, SCC 195 of 2012, Penfold J, 22 July 2013 |
Parties: | The Queen (Crown) Ferhat Michael Kilicaslan (Accused) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr H Jorgensen (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number(s): | SCC 63 of 2014 SCC 64 of 2014 |
Refshauge J:
The abuse of drugs, especially illicit drugs, is a serious social problem blighting the lives of the abusers, who, as addicts, lose much of their ability to live active lives of which they can be proud. It can have a devastating impact on their families and often spawns crimes, as the addict’s demand for drugs leads them to prey on the property of working members of our community. It is, therefore, not surprising that the legislature have tried many ways to keep the community safe, not only by creating serious penalties for offences, such as trafficking in illicit drugs, but through creative options, such as Deferred Sentence Orders and the treatment condition of a Good Behaviour Order, to maximise the benefit from rehabilitation which is, of course, the surest and most durable protection for the safety of the community.
Ferhat Michael Kilicaslan has pleaded guilty to four charges: possession, on 13 November 2013, of a drug of dependence, namely methylamphetamine, for the purpose of sale or supply; possessing, on the same day, ammunition without being approved, licensed or authorised to do so; possessing, on the same day, a barrel for a firearm when not authorised by licence or permit to do so; and finally, possessing, on the same day, 1.4 grams of heroin.
Possession of methylamphetamine for sale or supply is an offence prohibited by s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT) which provides for a maximum penalty of 500 penalties units (that is, a fine, at the time, of $70,000) or imprisonment for five years or both.
Unauthorised possession of ammunition is contrary to s 249 of the Firearms Act 1996 (ACT) which attracts a maximum penalty of 10 penalty units (that is, a fine, at the time, of $1,400).
Unauthorised possession of a barrel for a firearm is an offence under s 235 of the Firearms Act for which the legislation has set a maximum penalty of 50 penalty units (that is, a fine, at the time, of $7,000) or imprisonment for six months or both.
Finally, possession of heroin is an offence against s 169 of the Drugs of Dependence Act (ACT) rendering Mr Kilicaslan liable to a maximum penalty of 50 penalty units (that is, a fine, at the time, of $70,000) or imprisonment for two years or both.
The facts
At about 1.15 am on 3 November 2013, Mr Kilicaslan, with a passenger, drove into the carpark of the Dickson Tradies Club and parked there. His passenger hid herself in the front passenger footwell. Police approached the vehicle but I was not told why they did so. Perhaps the time of day was relevant. In any event, they saw a number of capped and uncapped hypodermic syringes in the car, a plastic spoon with white powder and what appeared to be two rounds of ammunition in the front passenger footwell.
Police asked Mr Kilicaslan to show them his hands, but he pushed his left hand down between the centre console and his seat and kept turning aside before finally showing them his open hands. Mr Kilicaslan and his passenger then alighted from the car and were asked about the needles. Mr Kilicaslan said that they belonged to his passenger, who was a drug user, and admitted that he, too, was a drug user and that he had consumed some drugs with his passenger about 20 minutes earlier. He also admitted that he was subject to a Deferred Sentence Order.
With his consent, police then searched Mr Kilicaslan's vehicle and found a plastic spoon containing heroin, a bumbag with a plastic ziplock bag containing 3.435 grams of methylamphetamine, a set of digital scales, a short metal cylinder containing 1.228 grams of heroin, two rounds of pistol ammunition, and .32 auto-calibre barrel portion of a home-made key ring pistol, a plastic bag containing a number of small ziplock plastic bags and another set of digital scales. Mr Kilicaslan was then arrested and later charged.
The Proceedings
The proceedings involving Mr Kilicaslan are slightly complicated. He appeared in the Magistrates Court later on the day he was arrested. He did not apply for bail and has remained in custody. He was charged with some of the above offences and some other offences as well. After some adjournments, he entered a plea of not guilty on 18 December 2013 and, on 2 April 2014, was committed for trial to this Court on all the charges he was then facing, which was a little surprising as some of them appeared to be summary offences which, ordinarily, would not be within the jurisdiction of this Court. I have, however, treated them as if they were not committed to this Court but were transferred under s 90B of the Magistrates Court Act 1930 (ACT).
On 24 November 2014, the Crown filed an ex officio indictment charging Mr Kilicaslan with the offences of possessing methylamphetamine for the purpose of supply. On 1 September 2014 a trial date of 1 December 2014 was set for the proceedings. On 26 November 2014 he pleaded guilty to the count on the ex officio indictment and the proceedings were listed for sentence.
As noted above, Mr Kilicaslan was, at the time of his arrest, subject to a Deferred Sentence Order. On 22 July 2013, Mr Kilicaslan appeared before Penfold J for sentence on two offences of aggravated robbery committed on two supermarkets, the robberies being committed about a week apart in April 2012. Having considered the seriousness of the offences and Mr Kilicaslan's subjective circumstances, her Honour considered that it was appropriate for him to be subject to a Deferred Sentence Order. The report of the assessor from the Court Alcohol and Drug Assessment Service (CADAS) described Mr Kilicaslan as "quite highly motivated to address his substance abuse" (R v Kilicaslan, unreported, ACTSC, SCC 195 of 2012, Penfold J, 22 July 2013). He had been at the Canberra Recovery Services rehabilitation facility and an officer from that facility expressed, despite some problems he had experienced there, a faith in his commitment to rehabilitation.
In making the Deferred Sentence Order, her Honour said:
If you do not comply with this Deferred Sentence Order and the bail conditions, and especially if you re-offend in the next nine months, and when you come back for sentencing you are likely to receive a total sentence of imprisonment of four and a half years including a reduction for the pleas of guilty with a non-parole period of at least two and half years. That sentence would be backdated to take account of the nearly five months that you have already spent in custody on the current offences and for some of the period that you have spent in residential rehabilitation. But it would mean at least another 12 months in prison and possibly quite a bit more depending on how you fail to comply with the Deferred Sentence Order. For instance, re-offending might well see you in prison for quite a bit more of the four years that have not so far been spent in custody.
If, on the other hand, you can comply with the bail conditions that I specify, keep away from drugs and alcohol and avoid offending in the next nine months, you are likely to receive the same sentence of four and half years imprisonment, also backdated to take account of time served and also time in residential rehabilitation up to a total maximum of 18 months, so that's nearly five plus up to another 13 months of time in residential rehabilitation with a further 12 months to served as periodic detention and the remainder of that sentence. So that would be a minimum of two years to be suspended subject to a three-year good behaviour order.
As appears from the arrest of Mr Kilicaslan, less than four months after the making of the Deferred Sentence Order, that he did not take full advantage of the opportunity. Her Honour then dealt with him on 10 April 2014. Her Honour imposed a sentence of three years imprisonment to commence on 10 October 2012, to take into account pre-sentence custody and with a discount for the time spent in residential rehabilitation. The sentence ends on 9 April 2017. Her Honour set a non-parole period, to end on 9 April 2015. See R v Kilicaslan (unreported, ACTSC, SCC 195 of 2012, Penfold J, 10 April 2014).
Subjective circumstances
Mr Kilicaslan was born in Dandenong, Victoria 34 years ago to his parents, Turkish migrants. He speaks both Turkish and English. Penfold J described him as having "a somewhat lonely childhood" as he was 12 years younger than his next sibling, in a strict family where his parents struggled to maintain their cultural values while working hard to establish themselves in Australia.
His father was a dominant influence in the family, described as having patriarchal views and expectations. Mr Kilicaslan's parents eventually separated, in part through domestic violence. He was teased at school, he also attended eight different schools due to the mobility of his family. He completed Year 11 as an average student but then left to find employment. This was, in part, to obtain moneys to fund his drug habit. He has, however, been fairly constantly employed. He has also gained a Certificate II in Information Technology and an Occupational Health and Safety Construction Induction Card - the white card. He has worked in hospitality, retail and construction, including as a labourer, a chicken boner, a car detailer and a delivery driver.
Mr Kilicaslan has had minimal contact with his family but he told me that he may be able to return to Mildura where he has a connection with the community which may assist him to find work. He wants also to reconnect with his father. Mr Kilicaslan has had two significant relationships. The first lasted about eight years and he and his partner were engaged to be married, but separated as it became clear that he and his partner wanted different things out of life. He was in a relationship for 12 months in 2013 which he described to the author of the Pre-Sentence Report as "healthy, strong and supportive", but I had no further information about that relationship.
Mr Kilicaslan first started using drugs, alcohol and cannabis when he was 14 years old. Indeed, he was described in the CADAS report as "a functioning alcoholic in his early twenties". He ceased drinking, however, when he was 26, by which time he had also stopped smoking cannabis. Soon afterwards he started using heroin, however, and became a regular user by age 29. He began injecting in 2012. He has not used heroin since his arrest on 13 November 2013. He has used most of the various illicit drugs: cocaine, benzodiazapenes, LSD, steroids. He started using speed when he was 18 and would smoke or inject it throughout his early 20s, but, while he would use it if offered, he said it was not his drug of choice. He also used ecstasy from age 18, using daily between age 26 and 27. He stopped using it after he was imprisoned in New South Wales in 2008.
He smoked cigarettes and had a moderate gambling problem for about two years ceasing in 2006. He has no physical health issues. He was diagnosed with depression in 2007, being then prescribed antidepressant medication. He only used it for six months. He said that he has no current mental health issues. He has engaged recently in alcohol and drug treatment. In early 2012, he commenced treatment with Suboxone, transferring to methadone in June 2012. He successfully reduced his dosage while on remand, and, when arrested in November 2013, resumed on the program, only ceasing when he entered the Solaris Therapeutic Community in the Alexander Maconachie Centre.
He entered the Canberra Recovery Services program in November 2012. In March 2013, while on day leave, he consumed illicit drugs and his participation in the program was terminated, but he was readmitted just over three weeks later. He later tested positive for alcohol, though he said it was a result of an alcohol-based hand sanitiser. He was again stood down from the program for some weeks. Finally, he was stood down for possession of a mobile phone. He was readmitted and completed the program, moving later to Arcadia House. Here, however, he relapsed and that led to his later incarceration on 13 November 2013.
In 2014, while in custody, he entered the Solaris Therapeutic Community within the Alexander Maconachie Centre and successfully completed the program in November. He is currently continuing with the program on a one-to-one session. He states that it has been effective and he is keen to engage with the throughcare program and attend Narcotics Anonymous.
The author of the CADAS report painted a picture consistent with the evidence Mr Kilicaslan gave before me. The report recorded, "Mr Kilicaslan demonstrated insight during the interview. He was not able to identify what was different but felt that something in his treatment had worked. He reflected that he now had a routine, that he was connecting back with his family, and that he had no more shame and guilt with his family relating to his drug use. He reported that people were willing to support him and it was not as embarrassing as it was previously."
Mr Kilicaslan's criminal history is not insignificant, being somewhat as expected for a long-time user of illicit drugs. He has 22 offences on his record, worryingly the majority are offences of violence, though some are now quite old. He has, however, no offences of dishonesty, which is consistent with his history of employment but different from the history of many drug users. He has been sentenced to imprisonment in 2006, though wholly suspended and in 2008 and, of course, in 2014.
The Offences
None of the offences are in the more serious category judged by the statutory maximum, which is the measure by which the comparative seriousness of offences is to be judged (see R v Oliver (1980) 7 A Crim R 174). Nevertheless, they are neither trivial offences nor offences for which a term of imprisonment is inappropriate. Possession of drugs for supply is part of the means by which the social distress that drugs cause is spread through the community and to which the court needs to lend its power to try to curb. In this case, it was accepted that the purpose of supply was to share the drugs with Mr Kilicaslan's passenger, a fellow drug addict. The objective seriousness is, therefore, much less than many other instances of the same offences.
As to the offences under the Firearms Act, it is not easy to assess their seriousness, for neither of the offences were constituted by the possession of a weapon capable of discharge or destruction. There is no suggestion in the Statement of Facts tendered, without objection, of any such finding. Nevertheless, the unauthorised possession of a weapon, or parts of a weapon, is always a matter of concern because of the potential for life-threatening injury that weapons can wreak.
Finally, the possession of the heroin is unexceptional for an addict, as was Mr Kilicaslan. That does not make it an offence that can be ignored. It is significant, for he had been involved in quite an extensive rehabilitation program which seemed, with the struggle that can be expected with a person with an entrenched drug addiction, to be making progress. The quantity was fairly small.
The offences were all committed, however, while Mr Kilicaslan was on conditional liberty in the community under a Deferred Sentence Order. This fact aggravates the seriousness of the offences. Nevertheless, as Mr S McLaughlin, who appeared for the Crown, properly conceded, the offences were at the lower end of the spectrum of seriousness. He accepted that Mr Kilicaslan had made significant progress and that, after he was returned to custody, he continued his commitment to rehabilitation. Nevertheless, he submitted that no other sentence than a sentence of imprisonment was appropriate in the circumstances. He noted that Mr Kilicaslan had been in custody on these offences from 13 November 2013. He was, of course, sentenced by Penfold J on 10 April 2014 for the offences with her Honour was dealing. That does not mean, however, that he was not in custody in relation to these offences.
Consideration
I have regard to the purposes of sentencing set out in s 7 of the Crime Sentencing Act 2005 (ACT). In this case, as in most cases, all those purposes are important, although there are, perhaps, no victims to be vindicated. That is not to say that drug offences are victimless crimes, but perhaps the kind of victims we talk about in that context are not those that are encompassed within principles set out in s 7. There must be some element of general and specific deterrence, but Mr Kilicaslan's efforts at, and commitment to, rehabilitation and his apparent success must be recognised and given due weight.
I acknowledge Mr Kilicaslan's plea of guilty. Although not early for the first three offences, the plea for the most serious offences was at the earliest opportunity after the ex officio indictment was presented and all his pleas were of value to the administration of justice. I take into account the seriousness of the offences as I have described them. It does not require me to take a severe response but I recognise that punishment is appropriate. I have regard to Mr Kilicaslan's subjective circumstances as I have outlined them.
In particular I must reinforce his commitment to managing his addiction and his desire to reunite with his family and his community, to obtain work and become a worthwhile member of the community. He has been assessed as not suitable for a community service work condition to a Good Behaviour Order and assessed as not suitable to serve any period of imprisonment by periodic detention because of the degree of his dependence on drugs.
Given his success at the Solaris program, it would be possible for me to make one of these dispositions despite that recommendation. In the circumstances, however, I do not consider that I should do so. I accept that imprisonment is appropriate and that no other punishment is appropriate. That always opens up a consideration of the way in which the imprisonment should be served.
As there are multiple sentences to be imposed and I must take into account the sentence Mr Kilicaslan is already serving, I must take care in ensuring that the sentences are properly imposed and have a proper relationship with each other. I have carefully considered the length of the sentences I am to impose, to ensure that where there are overlapping common elements between any of the offences Mr Kilicaslan is not punished twice.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, the offences are part of the same enterprise or otherwise.
I then reviewed the length of the total term of imprisonment arrived at, including the sentence that Mr Kilicaslan is already serving, to ensure that principle of totality is respected and that the total sentence is adequate to reflect the criminality of all the offences committed, but not more than that, and to ensure that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Kilicaslan's goals, as he expressed them, when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation and the concurrence of the individual sentences.
Mr Kilicaslan is due to be considered for parole from April 2015. I consider that this should not be disturbed, though I consider that the penalties for these offences should increase the head sentence that will be served should he breach his parole.
I also have to deal with the two charges that have also been presented to this Court, but to which no plea has been entered and which the Crown does not wish to pursue or cannot do so in the face of Mr Kilicaslan’s pleas. One of those is a charge that was, as I have indicated, committed to this Court but without authority and, in effect, I have assumed that it was transferred under s 90B of the Magistrates Court Act. I will simply dismiss that charge. The other charge is one for which an indictment has been presented and I assume the Crown, in accordance with the principles set out in R v DF (No 2) [2012] ACTSC 3, will, in due course, file a notice declining to proceed.
Mr Kilicaslan, please stand.
1. I convict you of, on 13 November 2013, possessing methylamphetamine for supply.
2. I sentence you to 12 months imprisonment to commence on 10 August 2016, that is to be cumulative as to four months on the sentence you are currently serving. Had you not pleaded guilty I would have sentenced you to 18 months imprisonment.
3. I convict you of possessing ammunition, on 13 November 2013, without authority.
4. I fine you $400, payable forthwith, and I note that s 116ZP of the Crime Sentence Administration Act 2005 (ACT) will apply to that fine.
5. I convict you of possessing a gun barrel, on 13 November 2013, without authority.
6. I fine you $1000, payable forthwith, and I note that s 116ZP of the Crime Sentence Administration Act 2005 will also apply to that fine.
7. I convict you of possession of heroin on 13 November 2013.
8. I sentence you to imprisonment for six months to commence on 10 April 2017, that is to be cumulative on the sentence for possession of methylamphetamine for supply as to two months. Had you not pleaded guilty I would have sentenced you to seven and half months imprisonment.
9. That is a total sentence of 14 months imprisonment, cumulative as to six months on your present sentence.
10. That also cancels your non-parole period. I must set a new non-parole period under s 66 of the Crimes Sentencing Act to include the sentence imposed by Penfold J and also this sentence. I set a non-parole period to start on 10 October 2012 and to end on 9 April 2015.
11. I dismiss charge CC2013/10334 being a charge of possession of goods reasonably suspected of being stolen.
[His Honour then spoke directly to Mr Kilicaslan]
Mr Kilicaslan, those are a lot of legal orders and I now need to briefly explain to you what I have done. I have said that the offences which you have been sentenced for, having regard to the nature of the offences and your personal circumstances, would, in other circumstances, warrant imprisonment for 14 months, as well as some fines.
Those fines I required you to pay immediately. If you do not pay them, which I do not expect you will, you will serve the time in prison concurrently with your current sentence. So you do not need to worry about those at this time, but it is important that you understand that those were serious matters and that they were worthy of that kind of punishment.
I have added six months to the head sentence that you are currently serving so that it extends beyond 9 April 2017 to 9 October 2017. However, you do not have to serve that unless (a) you are not granted parole or (b) you are granted parole and you breach your parole. Time in the community does not count, so the whole of that extra time, that is, a further 18 months, may have to be served if you breach your parole, at any time until the end of your sentence.
I have been impressed, as you can tell, by the efforts that you have made and your continuing commitment to rehabilitation. Hopefully the Solaris program has given you some skills, some insight and some commitment to remain drug-free. If you can make arrangements through parole to relocate to your community and your family and reconnect with those, get some work and put this terrible episode of criminality behind you then there is no reason why, with some help, that should not happen. If you cannot remain drug-free, then the likelihood is that you will be in and out of prison for a long time.
It is not going to be easy. Drug addiction gets you in the guts and it does not let go. You have to be consistently vigilant, but the Court hopes that if you are genuinely committed and have taken on board what you have learned in your rehabilitation that the Court will not see you again. You can be seated.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 2015 |
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