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 Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587
Category: Principal judgment Parties: Rex (Crown)
Kubilay KilincerRepresentation: Counsel:
Solicitors:
B Hatfield (Crown)
E Ozen SC (Accused)
Solicitor for Public Prosecutions (NSW) (Crown)
Abbas Jacobs Lawyers
File Number(s): 2020/30002 Publication restriction: Nil
Judgment
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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.
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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.
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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.
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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…
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- Case
- [2022] NSWSC 1625
- Decision Date
CaseChat Overview and Summary
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.
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