R v Kilincer (Sentence)

[2022] NSWSC 1625

Supreme Court

New South Wales

Medium Neutral Citation:

R v Kilincer (Sentence) [2022] NSWSC 1625

Hearing dates:

16 November 2022

Date of orders:

30 November 2022

Decision date:

30 November 2022

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. For the murder of Hasan Dastan committed on 11 December 1995 at Blacktown, Kubilay Kilincer is sentenced to a term of imprisonment of 22 years, to date from 20 April 2022 and expiring on 19 April 2044. The non-parole period is a term of 16 years and 6 months imprisonment, expiring on 19 October 2038, that being the earliest date upon which the offender will be eligible for release to parole.

Catchwords:

CRIME – Sentence – Trial – offender found guilty at trial – “cold case” investigation – offence occurring in 1995 – question of sentencing pattern from mid 1990s – spontaneous crime but with extreme brutality – limited subjective case – no remorse – dated criminal record

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

Holyoak v R (1995) 82 A Crim R 502

Magnusonv R [2013] NSWCCA 50

R v Bond [2001] NSWSC 1059

R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587

R v Lever [2000] NSWSC 953

Category:

Principal judgment

Parties:

Rex (Crown)
Kubilay Kilincer

Representation:

Counsel:
B Hatfield (Crown)
E Ozen SC (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Abbas Jacobs Lawyers

File Number(s):

2020/30002

Publication restriction:

Nil

Judgment

1. HER HONOUR: Hasan Dastan was a married man with three children, one of whom was still of an age to be dependent upon him, when, on 11 December 1995, he was brutally beaten to death by his employee, Kubilay Kilincer. Mr Kilincer, who now uses the name Thomas Gillinger, stands today for sentence for the murder of Mr Dastan on that day, at Blacktown in this State.

2. Murder is an offence that carries a maximum penalty of life imprisonment: s 18(1)(a) Crimes Act 1900 (NSW). Because this crime was committed before 2003, no standard non-parole period applies.

3. The jury having found the offender guilty of Mr Dastan’s murder, the Court must now determine the facts of the crime. The principles governing fact finding by a trial judge for the purpose of sentencing were enunciated in R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 at 377-8. Among them, that facts found for the purpose of sentencing must be consistent with the jury’s verdict, that findings of fact adverse to an offender must be established beyond reasonable doubt, and that there is no requirement that an offender should be sentenced upon a view of the facts most favourable to him or her. Matters favourable to the offender need only be established to the lower civil standard of proof.

4. In finding the facts of this crime, it can be confidently said that the jury rejected the offender’s evidence. That rejection is unsurprising: the offender’s evidence was, for the most part, patently false. It brought to mind the assessment of the offender’s veracity made on an earlier occasion by his wife, on 2 May 1996, caught by audio surveillance, and before the jury as Ex AJ, in which she described “everything” he said as “a lie”.

5. Setting aside the offender’s evidence, together with those untruthful parts of his wife’s evidence that were plainly intended to support his false account, the Crown case was, in the Court’s assessment, a strong one. The evidence establishes the following facts to the relevant standards.

The Facts of the Crime

6. In the first half of 1995 the offender began working for Hasan Dastan at his Esy Wreckers Auto Repair business in Blacktown, assisting Mr Dastan with repairing and wrecking motor vehicles, and other duties. At this time, the offender was also claiming an unemployment benefit from what was then the Department of Social Security (“DSS”). Despite those two sources of income, his financial situation was parlous because of a gambling habit.

7. There was evidence to establish that the offender borrowed money from others which he failed to repay, in a timely manner, or at all; and that he sometimes obtained goods on credit and failed to pay his bills. The offender was in debt to the Department of Housing for unpaid rent, with his situation so precarious that he feared being evicted from his home and having his possessions seized for payment of debt, no small problem for a man with a dependent wife and young children. The offender was also under pressure from family, who wanted him to stop gambling and had, it seems, extracted a promise from him that he would give up his habit.

8. Against that background the offender used his employment as a source of illegitimate funds, supplementary to his wages, by diverting to himself payment for goods and services due to the business, or taking a portion of monies received, understating the actual amounts involved to Mr Dastan. Mr Dastan had become aware of the dishonesty of his employee and had mentioned his dissatisfaction with the offender to a number of others, such as Mr Yildrim and Mr Plegas. He had also warned others against loaning money to the offender. Despite being aware of the offender’s dishonesty, Mr Dastan had tolerated his continuing employment, telling at least one colleague, Mr Kutsal, that he had not sacked the offender because of his concern for Mrs Kilincer and the couple’s children.

9. On Friday 8 December 1995 the offender took receipt of monies paid by a customer of Esy Wreckers, Mr Ancar, for work done to repair a Ford Laser. Mr Ancar gave the offender $1000 in cash for the work, monies he had withdrawn from the bank in denominations of $50. Instead of accounting for the sum received to his employer, the offender took it for his own use.

10. Mr Dastan had expected payment of the monies for the work done on the Laser, and must have quickly become aware that the customer had collected the car and paid his bill, with the offender unable to account for the funds. The point was clearly reached when Mr Dastan could no longer accept the offender’s thefts. He mentioned the missing money to Mr Yildrim, telling Mr Ylidrim that he had told the offender to repay the money by Monday 11 December 1995.

11. As at Sunday 10 December 1995 the monies remained outstanding, and the offender desperately sought to borrow the money from acquaintances Mr Aktas and Mr Ozdemir. When Mr Dastan called briefly into his business that day to speak to the offender, who was working, there was a heated argument between them. The argument was seen by a witness, Mr Woodham, and reported by Mr Dastan to his wife, Sultan Dastan.

12. With these events Mr Dastan decided to terminate the offender’s employment, telling his daughter of his intention to do so when he spoke to her later that day. Mr Dastan even made some inquiries about getting replacement staff, speaking to a former employee, Christopher Andrews, about returning to work at the workshop.

13. In the early hours of Monday 11 December 1995 the offender went to Esy Wreckers for a purpose that is not established on the evidence. He returned home, before again going to his workplace at some stage before 8.00am.

14. At about 8.00am Mr Dastan went to his business premises. He had to wait for the offender to let him in, as the offender had the key to the workshop. At some time after Mr Dastan’s arrival there, perhaps before his wife first telephoned the business at about 8.20am, but certainly before the offender left the premises, driving off at speed in a blue utility that Mr Dastan had given him to use, the offender murdered Mr Dastan in a most brutal and pitiless manner.

15. The exact time at which this offence was committed need not, and probably cannot, be determined. Witnesses who saw Mr Dastan that morning have differing recollections of the time at which he was seen, pointing to the unreliability of at least some observations and memories of what, at the time, would have been perceived as an inconsequential event. All that can be said is that Mr Dastan was savagely beaten to death between 8 o’clock that morning, when he arrived at his business premises, and 10 o’clock, when David Steel found his body inside the workshop.

16. On the whole of the evidence, it is clear that the attack by the offender on Mr Dastan came about when Mr Dastan asked the offender for the money outstanding since Friday. It is very likely Mr Dastan also told him that his employment was at an end. With the offender already highly stressed and on edge because of his pressing financial difficulties, whatever Mr Dastan said to him was sufficient to cause the offender, as he later said to the witness “Robert”, to lose control. The attack was likely a spontaneous one, but its spontaneity does not detract from its extreme brutality. Using tools and pieces of machinery as impromptu weapons, the offender struck Mr Dastan repeatedly to the head and body, causing severe injuries and massive blood loss leading to death. There can be no doubt that an assault of this severity and violence was carried out with an intention to kill Mr Dastan.

17. The Court does not accept the offender’s claim to the witness “Robert” that Mr Dastan had tried to strike him after a dispute about religion, prompting him to respond. Those false assertions in the course of an otherwise generally truthful account were probably intended by the offender to minimise the grievous nature of his criminal conduct in the eyes of a man the offender hoped would employ him in lucrative work and make that conduct seem less reprehensible to “Robert”. They do not detract from the general veracity of the offender’s account to the witness.

18. Dr Brouwer described the extensive blunt force trauma sustained by Mr Dastan, and diagrams and photographs supplemented her description to the jury. Mr Dastan suffered two severe linear lacerations to the front of his head with corresponding skull and facial fractures; a large bruise with underlying deformity and fracturing of the skull; significant lacerations to the back of his head with fractures to the skull in that area; a fracture to the thyroid cartilage caused by pressure to the neck; patterned bruising to the chest with fractured ribs and internal injuries to the chest and abdomen; and multiple skull fractures including one open fracture through which air entered the cranial cavity. Mr Dastan had also sustained typical defensive injuries, indicating that he was conscious for at least part of the vicious onslaught, and attempted to protect himself.

19. Having regard to the pattern of blood deposition in the area where Mr Dastan was attacked, at some point Mr Dastan fell to his knees or to the floor, and he was further attacked by the offender when in that vulnerable position.

20. The objects used as weapons likely included a ball joint remover, a metal pole, a sledgehammer, and a heavy car part or parts.

21. The savagery of the attack upon Mr Dastan was extreme. He was left lying in his own blood, with a metal pipe having been rammed into his mouth.

22. The offender searched Mr Dastan’s wallet, which he must have removed from his dead or dying body, and stole the money Mr Dastan had on him. Mrs Dastan thought her husband had on him at least $4800 in cash that morning, that being the sum Mr Dastan had been due to pay in rent. Whatever the exact sum, the Court is satisfied a significant sum was stolen by the offender from Mr Dastan’s person, and from the business’ cash register, the latter being an amount of at least $445. Although despicable, the thefts were opportunistic rather than the motivation for Mr Dastan’s murder.

23. After having murdered Mr Dastan, the offender set about staging the crime scene to hide evidence of his responsibility for the murder and divert police inquiries elsewhere. It is likely that the note found at the crime scene had been placed there by the offender. He wiped down the ball joint remover with rags, removing both Mr Dastan’s blood and his own fingerprints. He disposed of the rags in a residential garbage bin on his way home. When he arrived home the offender put his clothes and shoes in the washing machine to wash, effectively removing Mr Dastan’s blood. He then set off for the DSS, needlessly taking his wife and children with him so that his wife could later support him in his attempt to establish a false alibi. Later, he actively sought to interfere with the evidence others could give to police (Exs. AJ and AK).

24. The offender’s efforts to deflect police attention away from him had a significant impact on the course of the police investigation, and materially contributed to the delay in bringing him to justice.

The Impact of the Crime

25. The entire community suffers when the life of one of its members is extinguished by violence. For those close to the victim of the crime, the impact is much more personal, grievous, and lingering.

26. The Court received victim impact statements written by Mr Dastan’s wife and daughter. Mrs Dastan and Mrs Sevim chose not to read their statements in open court, but it was not necessary to hear the statements spoken aloud to glimpse the depth of grief they each expressed. To lose a loved one in circumstances that were both horrific and, for over twenty years, completely unexplained, was plainly devastating for the whole Dastan family. Theirs is a pain that has not ended with the passage of those years; it remains ever present. Mrs Dastan lost her husband; three children lost their father; a new generation lost their grandfather. Those losses are very great indeed.

27. When the loss of a loved one intersects with crime the family left behind have the added trauma of the operation of the criminal justice system to bear. That is a system which does not respect the privacy or the sensitivities of the families of the slain. Mrs Dastan and Ms Sevim sat in the court room during some or the whole of the evidence, listening as their private family concerns were exposed in a court room full of strangers, and no doubt suffering through the detailed evidence concerning the injuries inflicted upon Mr Dastan. The Court acknowledges their suffering, even as it also acknowledges that the sentence imposed today will not end it.

28. Others were also directly affected by this crime. Mr Steel told the jury about his discovery of Mr Dastan on the morning of 11 December 1995, and his frantic efforts to prevent Mrs Dastan from seeing her husband, whilst at the same time, getting help to move a car away from him. Mr Steel said that what he saw that day has never left him, and the deep effect upon him of his experience was plain as he gave his evidence, even decades on. No doubt emergency services and investigating personnel, whilst better trained to cope, were also affected by the tasks they undertook because of this crime.

29. These more personal harms exemplify the great harm caused to the community by the commission of a most violent crime.

The Gravity of the Crime

30. All murders are serious because a human life has been taken by the violent acts of another. The maximum penalty of life imprisonment fixed by the parliament for this crime reflects the community’s abhorrence at offences such as this one.

31. There are features of the offender’s crime which render it a most serious instance of murder. Although the crime was a spontaneous one, committed without forethought or planning, what lay behind it was the offender’s dishonest dealings with his employer over an extended period, and his inability to account for monies he had stolen. It was Mr Dastan’s decision to end the offender’s employment because of that dishonesty, and his insistence that the offender return the stolen funds, that caused the offender to lose control, and attack his employer. Whilst it cannot be known if Mr Dastan intended to report the offender’s thefts from his business to the police, by murdering Mr Dastan the offender certainly prevented his victim from telling others within the Turkish community about his dishonesty, and thus aided him in concealing the thefts from friends, family, and acquaintances.

32. The crime involved a grave breach of trust, in that the offender was in a privileged position as an employee, permitted to be in the workshop area where he had ready access to the tools and machinery he used as weapons.

33. The attack was one perpetrated by a younger man upon an older. Multiple weapons were used including a metal pole, a sledgehammer (causing the circular bruising depression to the skull), and a heavy car part. Multiple blows were struck. The violence of the crime was extreme, and the injuries inflicted on Mr Dastan horrifying. The gesture of ramming a pipe into Mr Dastan’s mouth was one redolent of contempt and unconcern for his victim.

34. The attack continued after Mr Dastan fell or was knocked to the floor, at which time he would have been very vulnerable to the continuing onslaught.

35. Mr Dastan was clearly conscious for at least part of the attack upon him, as he sought to defend himself by raising his arms to protect his head. He must have been dismayed that his employee and fellow member of the Turkish community would visit violence upon him in this way, dismay that would have rapidly given way to fear and pain.

36. The murder was accompanied by the robbery of a significant sum, from both Mr Dastan’s person (his wallet) and his presence (the cash register). The offender must have taken Mr Dastan’s wallet from his dead or dying body, an act that is truly shameful.

The Offender’s Case

37. The offender’s case is very limited, perhaps because he continues to maintain his false denial of guilt, telling a psychologist that he intends to appeal against the conviction for his crime.

38. Two family members have sworn affidavits: the offender’s daughters Tulay Barkin and Melise Kilincer.

39. Ms Barkin deposed that she enjoys a very close relationship with her father, who was and is a supportive and encouraging parent to her. She considers her father to be an honest, caring, and kind man, who is devoted to his family. His grandchildren also enjoy their relationship with him and miss him. Ms Barkin reports that the offender told her that being held in prison on remand had left him feeling distraught and drained.

40. Ms Kilincer regards her father as her best friend; she enjoyed both his company and his counsel when younger, and credits him with supporting and encouraging her to achieve her dreams. She reported that her father has been greatly affected by the circumstances surrounding his arrest, including intrusive media inquiries of his family.

41. The offender was assessed for the purposes of sentencing by a psychologist, Tim Watson-Munro. Mr Watson-Munro’s report of 7 November 2022 is substantially based upon information from the offender, some of it obviously false, such as the offender’s assertion to the report author that he has no criminal convictions. Other information in the report is unsupported by independent evidence and, particularly bearing in mind the offender’s dishonesty historically and in evidence at his trial, Mr Watson-Munro’s conclusions must be viewed with caution because of the flawed information upon which they are based. The report is of limited value.

42. Mr Watson-Munro outlined the offender’s personal circumstances as the offender gave them to be. He concluded that Mr Kilincer is anxious and depressed as a result of the criminal proceedings against him. That is hardly surprising. Mr Watson-Munro referred to a diagnosis of Post Traumatic Stress Disorder (“PTSD”) made by another clinician in June 2022, but the report of that person is not before the Court and it is not possible to make any assessment of its legitimacy. The diagnosis of PTSD was reportedly made because of the offender’s account of childhood violence at the hands of his father, a history not given to Mr Watson-Munro, and of unknown veracity.

43. I have set aside Mr Watson-Munro’s second hand assertions about threats to the offender’s life in custody, and the deprivation of the offender’s custodial circumstances, as there is no credible evidence to support either claim, and some evidence to disprove the latter.

37. On the evidence, little can be known about the offender. In his younger days he was a gambler, with his gambling habit so problematic that he was unable to support his family without recourse to theft and dishonesty. He was a tradesman, although it seems that he gave up his work at a relatively young age, thereafter, receiving a government benefit, assertedly because of a bad back. He is married with children and grandchildren, and he enjoys his family’s support. His present circumstances have made him depressed.

Other Matters Relevant to Sentence

45. The offender cannot claim the benefit of any expression of remorse for this crime. Immediately after the murder, the offender actively sought to arrange the crime scene to deflect and frustrate the police investigation. He took steps to try to create a false alibi. As the police inquiry continued, he actively interfered with witnesses and the evidence they could give, again to create a false narrative around Mr Dastan’s death.

46. Even during his confession to “Robert”, the offender expressed no contrition for the horrible death he inflicted upon Mr Dastan, a man who was kind to him, and no sorrow for the plight of Mr Dastan’s family. His palpable relief after having finally told “Robert” what he had done, and the tears he then wept, were plainly for himself, and his relief at a burdensome secret shared. None of the great emotion he displayed to “Robert” was for Mr Dastan. The offender’s only concern has been and is for himself.

47. Contrary to the offender’s assertions to Mr Watson-Munro, he does have a criminal history and, as might have been obvious from some of the evidence at trial concerning his dishonesty, his record relates to offences of that nature. Prior to murdering Mr Dastan, the offender had been before what was then the Petty Sessions Court at Redfern for stealing, and convicted and fined. In April 1995, a little less than six months before the murder, the offender was charged with some 14 offences, being four counts of obtaining a benefit by deception and 10 of making a false and misleading statement. He was sentenced for those offences on 14 November 1995, with penalties including a 3 year recognisance and two community service orders imposed. Those orders, giving the offender his liberty on conditions including good behaviour, were all current when the offender murdered his employer a month later. It is impossible to think of a more egregious breach of conditional liberty than the brutal murder of a fellow member of the community. The existence of the orders and the offender’s breach of them is a matter of serious aggravation.

48. Following Mr Dastan’s murder, the offender was again before the court for dishonesty offences, being fined in May 2000 for four counts relating to passing bad cheques. Setting aside the present matter he has not been convicted of any criminal offence since that date and might be regarded as having rehabilitated himself from criminal conduct.

49. The applicant has spent some time in custody on remand with respect to this offence, and the commencement date of the sentence that will shortly be imposed upon him will be backdated by 7 months and 10 days.

50. Since entering custody on 16 September 2022 the offender has been placed on protection at his own request; that status could be changed at any time. That he is a protection prisoner is not evidence, as Mr Watson-Munro wrongly asserted, of the offender’s subjection to custodial conditions more adverse than those applicable to other prisoners. The evidence is that protection prisoners have similar “lock in” hours to other prisoners, and the same access to privileges and programmes as others.

51. Delay is a consideration in this matter, notwithstanding the offender’s submission that he does not rely upon it as a feature of relevance to sentence. Since, by staging the crime scene to prevent suspicions from falling on him, the offender contributed to the delay between crime and arrest, it is not a feature that mitigates penalty for that reason alone. Nor is there any reason to think that the offender lived his life “…fearing that at any time there will be that knock on the door…” (Holyoak v R (1995) 82 A Crim R 502 at 508). Indeed, he told “Robert”, credibly, that he had not been concerned that his crime would catch him up.

52. Delay is of ameliorating significance however in two ways. In the last 20 years the offender has achieved a measure of rehabilitation, having no criminal convictions recorded against him since May 2000. Also, there has been a change in sentencing patterns since 1995 with terms of imprisonment, particularly after 2003, tending to become longer. The offender must be sentenced in accordance with the pattern of 1995, insofar as that pattern can be discerned. That can be difficult and, where it is too difficult to achieve reliably, the maximum penalty fixed for the crime, and the assessment of its gravity remain the best guides to sentence: Magnusonv R [2013] NSWCCA 50, at [85].

53. Whilst the Court has had regard to such information as is available concerning sentences imposed for murder in the mid 1990s, including considering the facts and circumstances of decided cases from that period, such as R v Lever [2000] NSWSC 953 and R v Bond [2001] NSWSC 1059, it has not been possible to discern a “pattern”, although it is clear that sentences have become lengthier with the advent of standard non-parole periods, not applicable to this offence. A sentence imposed for the same offence committed today would be considerably higher.

54. Within that framework of lower sentences, the sentence imposed upon the offender must serve the purposes given in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those that have the most resonance in the circumstances of this case are to punish the offender, to denounce his crime and make him accountable for it, to recognise the harm done, and to deter others from such criminal acts.

55. The length of the sentence to be imposed is such that there is no utility in a finding of special circumstances. The non-parole period that will apply as the ordinary statutory ratio of sentence will be adequate to assist the offender, well supported as he is by family, to re-integrate into the community.

Sentence

56. For the murder of Hasan Dastan committed on 11 December 1995 at Blacktown, Kubilay Kilincer is sentenced to a term of imprisonment of 22 years, to date from 20 April 2022 and expiring on 19 April 2044. The non-parole period is a term of 16 years and 6 months imprisonment, expiring on 19 October 2038, that being the earliest date upon which the offender will be eligible for release to parole.

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Decision last updated: 30 November 2022