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District Court 15 December 2022

R v Acisulu; R v Kilic

[2022] NSWDC 640

Assault & violenceDrugsTheft & propertyFirearms & weapons

Citation: R v Acisulu; R v Kilic [2022] NSWDC 640
Court: District Court of New South Wales
Date: 15 December 2022
Judge(s): Scotting DCJ

Background

Two men, referred to here as the first offender and the second offender, appeared before the District Court for sentencing after pleading guilty in the Local Court to a series of serious offences committed in February 2020. The offences arose from two separate carjacking incidents in Sydney's inner south, as well as the discovery of a prohibited firearm, ammunition, and a quantity of MDMA when police located the men asleep in a stolen vehicle days later.

The first incident, on 14 February 2020, involved the first offender demanding the keys to a Mercedes AMG from the vehicle's owner in a residential driveway in Sandringham. The second incident, in the early hours of 17 February 2020, involved both offenders approaching a man seated in a Porsche Cayenne in Rosebery, with one of them producing a silver pistol and pointing it at the victim before the victim fled.

Police arrested both men on 17 February 2020 after a member of the public found them passed out in the stolen Mercedes in Kensington. A search of the vehicle and the men's persons uncovered a prohibited firearm, ammunition, and the MDMA.

  • The appropriate sentences for the first offender on charges of assault with intent to take and drive a motor vehicle (two counts, one being the aggravated form), possession of an unauthorised prohibited firearm, and supply of a prohibited drug (MDMA)
  • The appropriate sentences for the second offender on charges of aggravated assault with intent to take and drive a motor vehicle and possession of an unauthorised prohibited firearm
  • Whether special circumstances existed for either offender to justify a variation of the standard ratio between non-parole period and head sentence
  • How to account for each offender's pre-sentence custody, and the proper application of aggregate sentencing under the Crimes (Sentencing Procedure) Act 1999
  • The treatment of Form 1 offences (possession of ammunition without licence, and in the second offender's case also driving whilst suspended) in calculating the appropriate sentences

Decision

Scotting DCJ sentenced both offenders by imposing aggregate terms of imprisonment under s 53A of the Crimes (Sentencing Procedure) Act 1999. Each offender received a 25% discount on sentence reflecting their guilty pleas entered in the Local Court. The judge applied the standard sentencing framework, finding facts adverse to the offenders beyond reasonable doubt and findings favourable to them on the balance of probabilities, consistent with R v Olbrich.

In relation to the first offender, the court identified a pattern of deliberate, planned offending escalating from the first carjacking to the armed aggravated carjacking days later. The presence of the loaded prohibited firearm, the MDMA supply quantity, and the threatening conduct toward victims all elevated the objective seriousness of the offences. His criminal antecedents and the fact that he had spent much of his adult life in custody were taken into account, alongside his drug dependency.

For the second offender, the court acknowledged that he was a first-time custodial offender and took into account his drug addiction and intellectual disability. These factors supported a finding of special circumstances for both men, as each required a longer period of supervision on parole to assist with reintegration and address underlying issues.

The court backdated and structured the sentences to account for each offender's pre-sentence custody, including periods spent on remand and, for the second offender, time served following revocation of an intensive correction order.

Orders Made

First offender (Ozan Acisulu) convicted:
- Aggregate term of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 6 months
- Sentence backdated to 18 August 2020
- Non-parole period expires 17 February 2024; head sentence expires 17 February 2026
- Eligible for parole release on 17 February 2024

Second offender (Aydin Kilic) convicted:
- Aggregate term of 3 years and 8 months imprisonment, with a non-parole period of 1 year and 10 months
- Sentence backdated to 24 March 2022
- Non-parole period expires 23 January 2024; head sentence expires 23 November 2025
- Eligible for parole release on 23 January 2024

Key Takeaways

  • The District Court applied aggregate sentencing under s 53A of the Crimes (Sentencing Procedure) Act 1999, setting out the hypothetical individual sentences before arriving at a single combined term, a process that allows the court to apply the totality principle across multiple offences.
  • A 25% sentencing discount applied to both offenders as a result of guilty pleas entered at the Local Court level, in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances were found for both offenders, permitting a greater proportion of the sentence to be served on parole than the standard ratio would otherwise allow, on the basis of factors including drug dependency, intellectual disability, risk of institutionalisation, and the need for extended community supervision.
  • Form 1 offences (possession of ammunition without licence, and driving whilst suspended) were taken into account in fixing the sentences on the substantive charges, consistent with the principles in the guideline judgment Attorney General's Application No 1 of 2022.
  • Pre-sentence custody was carefully accounted for through backdating, including the period following revocation of the second offender's intensive correction order, reflecting the requirement that time already served be given full credit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 154C(1)(a) and 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25D(2)(a), 53A
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 65(3)
- Road Transport Act 2013 (NSW), s 54(3)(a)

Cases:
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 (guideline judgment on Form 1 offences)
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Hoskins v R [2021] NSWCCA 169
- R v Olbrich (1999) 199 CLR 270