Citation: R v Kilincer (Sentence) [2022] NSWSC 1625
Court: Supreme Court of New South Wales
Date: 30 November 2022
Judge: Wilson J
Background
The offender, Kubilay Kilincer (also known as Thomas Gillinger), was employed at a motor vehicle wrecking and repair business in Blacktown owned by Hasan Dastan. By late 1995, the offender was in severe financial difficulty due to a gambling habit, unpaid debts, and pressure from family. He had been supplementing his wages by diverting customer payments away from the business.
In early December 1995, the offender took $1,000 in cash from a customer without accounting for it to Mr Dastan. Mr Dastan became aware of the theft and demanded repayment by Monday, 11 December 1995. He also decided to terminate the offender's employment. On the morning of 11 December 1995, at the business premises, the offender beat Mr Dastan to death using tools and pieces of machinery as improvised weapons.
The case remained unresolved for many years. The offender was ultimately found guilty of murder by a jury. The sentencing proceedings took place in November 2022, nearly 27 years after the offence.
Legal Issues
- What facts of the offence were established to the requisite standard of proof for sentencing purposes, given the jury's verdict and the offender's largely rejected evidence?
- What was the appropriate objective gravity of the offence, including the offender's intention and the spontaneity of the attack?
- What weight should be given to the offender's subjective circumstances, including his limited rehabilitation, absence of remorse, and dated criminal record?
- What sentencing pattern applied to a murder committed in 1995, given that sentencing for murder has become heavier since 2003 when standard non-parole periods were introduced?
- How should the significant delay between the offence and sentencing be treated?
Decision
Factual findings at sentencing
Wilson J found that the attack arose when Mr Dastan confronted the offender about the missing money and indicated his employment was at an end. Already under extreme financial stress, the offender lost control and attacked Mr Dastan with tools and machinery, striking him repeatedly to the head and body. The resulting injuries were catastrophic: multiple skull fractures, fractured ribs, internal injuries, and a fractured thyroid cartilage, among other severe trauma. Mr Dastan sustained defensive injuries, indicating he was conscious during at least part of the assault. The Court found beyond reasonable doubt that the assault was carried out with an intention to kill.
Objective seriousness
Although the attack was likely spontaneous rather than premeditated, Wilson J found that its spontaneity did not diminish its extreme brutality or its objective seriousness. The offender's claim that Mr Dastan had initiated a dispute about religion was rejected as a self-serving fabrication. The offence was assessed as serious within the range of murders.
Subjective circumstances and delay
The offender's subjective case was limited. He expressed no remorse, and his evidence at trial was largely false. His criminal record, while dated, included prior offending. However, the Court acknowledged that in the 20 years preceding sentencing, the offender had achieved a degree of rehabilitation, with no convictions since May 2000. The delay since 1995 was not attributed to any failure by authorities; rather, the offender had concealed his crime and harboured no apparent concern that it would catch up with him.
Sentencing pattern from 1995
The Court was required to sentence the offender in accordance with the sentencing pattern of the mid-1990s, not by contemporary standards. Wilson J found it was not possible to identify a clear pattern from the available cases of that era, but confirmed that sentences have become materially longer since 2003. Applying the principles in Magnuson v R, the maximum penalty and the gravity of the offence served as the best guides where a reliable pattern could not be discerned. The Court noted that a sentence imposed today for the same crime would be considerably higher.
Orders Made
- The offender was sentenced to 22 years imprisonment for the murder of Hasan Dastan, commencing 20 April 2022 and expiring 19 April 2044.
- A non-parole period of 16 years and 6 months was set, expiring 19 October 2038, being the earliest date upon which the offender is eligible for release to parole.
Key Takeaways
- Where a murder was committed before 2003, no standard non-parole period applies, and the sentencing court must apply the sentencing pattern of the period in which the offence occurred, even if that pattern is difficult to discern with precision.
- The Supreme Court confirmed that where a reliable mid-1990s sentencing pattern cannot be identified from decided cases, the maximum penalty and the objective gravity of the offence remain the most reliable guides to sentence, consistent with Magnuson v R [2013] NSWCCA 50.
- Spontaneity of an attack does not reduce its objective seriousness where the violence was of extreme brutality, carried out with an intention to kill.
- Delay between offence and sentence can carry ameliorating significance in two respects: evidence of rehabilitation in the intervening years, and the obligation to sentence according to the lower tariff applicable at the time of the offence rather than at the time of sentencing.
- Fact-finding at sentence must be consistent with the jury's verdict; findings adverse to the offender must be established beyond reasonable doubt, while matters favourable to the offender need only be established on the balance of probabilities, per R v Isaacs (1997) 41 NSWLR 374.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- Holyoak v R (1995) 82 A Crim R 502
- Magnuson v 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