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Supreme Court 28 September 2018

R v Fazlilar

[2018] NSWSC 1663

HomicideDrugsFirearms & weapons
SENTENCING REMARKS ON SENTENCE WHERE OFFENDER ON ICE AND OTHER DRUGS REMARKS ON SENTENCE WHERE PISTOL LOADED

Citation: R v Fazlilar [2018] NSWSC 1663
Court: Supreme Court of NSW
Date: 28 September 2018
Judge: N Adams J

Background

In the early hours of 14 November 2015, a group of associates gathered in a hotel suite at the Fraser Suites in Sydney's CBD following an extended period of socialising and drug use at a Kings Cross strip club and brothel. The group had been consuming methylamphetamine (ice), cocaine and alcohol over an extended period spanning two days. The offender, a regular patron of the club, had been carrying a loaded pistol on his person throughout that period.

A shooting took place in the hotel room at close range. The victim was shot in the leg and his body was discovered two days later. He had bled to death. A jury convicted the offender of murder on 29 May 2018, having also found him guilty of a separate count of unauthorised possession of a pistol on 13 November 2015, the day before the shooting.

The sentencing remarks dealt with the appropriate penalties for both offences, including the proper factual basis for sentencing, the weight to be given to the standard non-parole periods, and whether the sentences should be partially accumulated.

  • What facts, consistent with the jury's verdict, should form the basis for sentencing?
  • What is the objective seriousness of the murder, given that the offender intended to inflict grievous bodily harm (shooting the deceased in the leg) rather than to kill?
  • What weight should be given to the standard non-parole period of 20 years for murder?
  • How should the offender's drug use, lack of planning, and impulsivity bear on the sentence?
  • To what extent should the sentences for murder and the firearm offence be accumulated (that is, served consecutively rather than concurrently)?

Decision

Adams J determined the sentencing facts on the established standard: adverse facts must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities, following The Queen v Olbrich. The court was satisfied that the offender intended to inflict grievous bodily harm by shooting the deceased in the leg, rather than forming an intention to kill. The shooting was impulsive and lacked planning. The offender was affected by ice and other drugs at the time.

On objective seriousness, the court treated the murder as warranting significant punishment notwithstanding the absence of a specific intent to kill. The standard non-parole period of 20 years served as a guidepost in the manner required by Muldrock v The Queen. The offender's drug-affected state and impulsivity were taken into account, but these factors did not substantially reduce the gravity of the offending.

On the firearm offence, the court noted that possession of the pistol was not an isolated event. The offender had carried the loaded weapon on multiple occasions at the club and elsewhere, and this was coupled with his use of ice and other drugs. The court acknowledged some overlap between the two offences, accepting the submission based on Pearce v R that the possession had culminated in the shooting, but nonetheless determined that a degree of accumulation was warranted given that the offences occurred on different dates.

The court accumulated the sentences to the extent of 18 months. It also varied the statutory ratio slightly in relation to the murder sentence to maintain the appropriate ratio across the effective total sentence. The offender received credit for time already served in custody, and the sentence was backdated accordingly under s 47(3) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • For unauthorised possession of a pistol (s 7(1) Firearms Act 1996): convicted and sentenced to 6 years imprisonment with a non-parole period of 4 years and 6 months, commencing 28 November 2015; non-parole period expiring 27 May 2017.
  • For murder: convicted and sentenced to 24 years and 6 months imprisonment with a non-parole period of 18 years, commencing 28 May 2017; non-parole period expiring 27 May 2035.
  • Total effective sentence: 26 years with a non-parole period of 19 and a half years, commencing 28 November 2015, expiring 27 November 2041; eligible for parole from 27 May 2035.

Key Takeaways

  • Murder carrying an intent to inflict grievous bodily harm, rather than an intent to kill, remains a very serious offence attracting a substantial non-parole period, even where impulsivity and drug intoxication are established mitigating features.
  • Under Muldrock v The Queen, the standard non-parole period for murder (20 years) functions as a guidepost to be considered alongside all other relevant sentencing factors, rather than as a fixed benchmark.
  • Where a firearm offence and a murder arise from related conduct, some overlap between sentences may be appropriate under Pearce v R, but accumulation remains available where the offences occurred on separate dates and reflect distinct criminality.
  • Repeated, habitual carrying of a loaded firearm while drug-affected aggravates the objective seriousness of an unauthorised possession offence, even where the weapon was not openly brandished or used as a direct threat on prior occasions.
  • A conviction for a "serious violence offence" within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW) triggers a statutory obligation for the sentencing court to warn the offender of the Act's potential application.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A
- Firearms Act 1996 (NSW), s 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 28, 47, Part 4 Div 1A (standard non-parole period table)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- R v Isaacs (1997) 41 NSWLR 374
- Ayshow v R [2011] NSWCCA 240
- R v Atai [2011] NSWSC 1617
- R v Bolt [2013] NSWSC 895
- R v Clarke [2014] NSWSC 1746
- R v Filippou [2013] NSWCCA 92
- R v Perry [2016] NSWSC 1562