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

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.
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.
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.
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…

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.

Keep reading for free

Create a free CaseChat account to read R v Kilincer (Sentence) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1625
Decision Date: 30 November 2022

CaseChat Overview and Summary

The defendant, Kilincer, was convicted in the Supreme Court of Victoria for a crime that occurred in 1995. The case was reopened as a "cold case" after years of investigation, and Kilincer was found guilty of the offence at trial. The court was required to determine the appropriate sentence for the crime, which was a spontaneous act of extreme brutality with no remorse shown by the offender. The sentencing process involved considering the pattern of sentences from the mid-1990s and Kilincer's dated criminal record.

The legal issues before the court included the appropriate sentencing approach for a crime of this nature, the relevance of the "cold case" investigation in determining the sentence, and the weight to be given to the offender's lack of remorse and criminal history. The court had to balance the need for deterrence and denunciation with the possibility of rehabilitation, while also considering the principle of parity in sentencing.

In delivering the sentence, the court noted the extreme brutality of the crime and the lack of remorse shown by the offender. The court also considered the sentencing patterns from the mid-1990s and Kilincer's criminal history. The court found that the appropriate sentence should reflect the seriousness of the crime and the need for deterrence and denunciation, while also considering the possibility of rehabilitation. The court ultimately sentenced Kilincer to a term of imprisonment, taking into account all relevant factors.

Orders