R v Kilicaslan - [2015] ACTSC 39

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 Drugs of Dependence Act 1989 (ACT), ss 164(2)(c), 169 Firearms Act 1996 (ACT), ss 235, 249 Magistrates Court Act 1930 (ACT), s 90B
Cases Cited:	R v DF (No 2) [2012] ACTSC 3 R v Kilicaslan, unreported, ACTSC, SCC 195 of 2012, Penfold J, 22 July 2013 R v Kilicaslan, unreported, ACTSC, SCC 195 of 2012, Penfold J, 10 April 2014. R v Oliver (1980) 7 A Crim R 174
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…

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 Kilicaslan

Details

AGLC: R v Kilicaslan [2015] ACTSC 39
Case: [2015] ACTSC 39
Decision Date: 13 February 2015

CaseChat Overview and Summary

The defendant, Ferhat Michael Kilicaslan, was brought before the court on multiple charges related to drug possession and the unauthorised possession of firearms and ammunition. The case, R v Kilicaslan, was heard in the ACT Supreme Court, which was tasked with determining the defendant’s guilt and sentencing him accordingly. The key charges against Kilicaslan included possession of methylamphetamine for supply, possession of ammunition and a gun barrel without authority, and possession of heroin. The court was also required to consider the breach of a deferred sentence order and the defendant’s potential for rehabilitation.

The court needed to resolve several legal issues, including the appropriate sentence for each offence and whether the sentences should be served concurrently or cumulatively. The defence argued that Kilicaslan was seeking rehabilitation and had shown remorse, which could potentially mitigate the severity of the sentence. The prosecution, however, argued for a sentence that reflected the seriousness of the offences and the risk posed to the community by the defendant's illegal activities.

In delivering the judgment, the court considered the nature and circumstances of each offence, the defendant’s criminal history, and the principles of sentencing. The court found Kilicaslan guilty on all counts except for the charge related to possession of goods reasonably suspected of being stolen. The court imposed a total sentence of 18 months imprisonment, with specific terms for the non-parole period. Additionally, the court ordered fines for the unauthorised possession of ammunition and the gun barrel. The court noted the defendant’s willingness to rehabilitate and his lack of a prior criminal record, which influenced the decision to set a new non-parole period.

The final orders of the court were that Ferhat Michael Kilicaslan be convicted and sentenced as detailed in the orders section of the judgment. The court dismissed the charge regarding the possession of goods reasonably suspected of being stolen, reflecting the evidence presented during the trial.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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