R v Dastan

[2024] NSWSC 55

Supreme Court of NSW|2023-12-08|Before: Harrison CJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-12-08

Before

Harrison CJ

Catchwords

[2013] HCA 37 R v Fairweather

Source

Original judgment source is linked above.

Catchwords

[2013] HCA 37 R v Fairweather

Judgment (15 paragraphs)

[1]

REMARKS ON SENTENCE

HIS HONOUR: On 27 May 2019, Craig Anderson was fatally shot at Mr Anderson's home at 5 Meridian Place, Doonside. On 19 June 2023, Mr Dastan was found guilty by a jury of Mr Anderson's murder following a trial over which I presided. The offence of murder carries a maximum penalty of life imprisonment with a standard non-parole period of 20 years. Mr Dastan was also found guilty of participating in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 5 years. Mr Dastan is now to be sentenced for these offences.
It is uncontroversial that I may not take any fact into account in a way that is adverse to Mr Dastan's interests unless I am satisfied of that fact beyond reasonable doubt. Mr Dastan bears the onus on the balance of probabilities of proving any matter that he contends is favourable to him.
The Crown case at trial was that Mr Dastan was the offender who shot Mr Anderson. Mr Dastan gave evidence at the trial that he did not do so. Mr Dastan nominated another person as the offender who shot Mr Anderson. The resolution of that issue is one of the matters with which these reasons must deal.
I pause to observe in that context that I have already sentenced three of Mr Dastan's co-accused. I sentenced Sean Fairweather and Andrew Khoury on 14 June 2023: see R v Fairweather; R v Khoury [2023] NSWSC 814. For the purposes of those proceedings, I described the background facts in my remarks on sentence. I concluded that "Mr Anderson was shot four times by Mr Dastan as he retreated into the front door of his house at Doonside in the early evening of 27 May 2019". I expressed a similar view when sentencing another co-accused: see R v ZZ [2023] NSWSC 506. It will be apparent that Mr Dastan was not a party to those proceedings and is accordingly not bound by the findings made by me in respect of his co-accused. It remains for the Crown in these proceedings to satisfy me beyond reasonable doubt that Mr Dastan was the shooter, notwithstanding my finding on that issue in different proceedings.

[2]

Facts

The Crown case against Mr Dastan proceeded upon at least the following facts.
Mr Anderson was shot four times near the front door of his house at Doonside in the early evening of 27 May 2019. Mr Dastan had earlier become obsessed with avenging an assault upon his brother at Mr Anderson's premises the day before. Although the evidence established that Mr Anderson was not personally involved in the assault, it is clear that Mr Dastan had formed the belief that he was responsible and that he was deserving of punishment for what had occurred. Two independent witnesses heard someone ask Mr Anderson in the moments before he was killed what had happened to his brother. I am satisfied beyond reasonable doubt that it was Mr Dastan who spoke those words. The evidence also satisfies me beyond reasonable doubt that the death of Mr Anderson was the result of an act of revenge performed by Mr Dastan.
For example, commencing at about 8pm on 26 May 2019, Mr Dastan sent a series of text messages or their equivalent to one of his co-accused. These messages coincided with a significant amount of similar electronic correspondence with several other people. The burden of Mr Dastan's messages was that his younger brother Joshkun had been assaulted at Doonside and that he wanted to find out who was responsible. It is evident that Mr Dastan was extremely upset at what he was learning had occurred, and that he was hopeful of recruiting two of his co-accused, among others, to assist him with his plan for revenge.
Mr Dastan sent a message to one of his co-accused at 8.02pm on 26 May 2019 saying, "Yo my bro got jumped. I need gat pls". He said, "I just found out 30 min ago he got jumped…I'm frothing". Mr Dastan tells him, "If Gotti awake. Game over. I'm going tonight". I am satisfied that references to Gotti are references to his co-accused ZZ who Mr Dastan was trying to contact in order to have him accompany Mr Dastan to Doonside. Mr Dastan then wrote to another co-accused, "Tomo night if this cunt wakes up. I'm going straight away. Big damage…Hopefully were [sic, we're] on tomo." Mr Dastan tells him, "Yea the guy that sells eye. Names ando. Try locate that." Mr Dastan continues, "Try find me another clip for glock. Or extension clip." The co-accused did not comply with those requests.
The following afternoon, one of Mr Dastan's co-accused drove his Toyota Hilux to ZZ's home in Blacktown and took him to the doctor. ZZ had an unloaded 9mm Glock semiautomatic pistol with him at that time, which he placed under a seat in that vehicle before attending the doctor's surgery. The co-accused became aware that ZZ was in possession of the gun at that time. ZZ had earlier sent messages to him in which he said, "we need more bulut" and "we have dram", which was a reference to drama.
The co-accused then drove ZZ to Mr Dastan's home in Kemps Creek. They were greeted by Mr Dastan who opened the door when they arrived. Mr Dastan was then rambling, saying things like "I'm going to get them…go sort these cunts out." The co-accused described Mr Dastan's references to his brother and what he was going to do about it as "a broken record."
Mr Dastan was later driven on a circuitous route to Mr Anderson's house at Doonside. Mr Dastan and ZZ walked from the car to Mr Anderson's place. Mr Peckham, who gave evidence at the trial of what he saw and heard, was at that time on the veranda getting something from a toolbox. Mr Anderson was nearby in the front yard. Mr Peckham said that he heard Mr Dastan say to Mr Anderson, "Ando. Ando, what happened to my fucking brother yesterday?" Mr Anderson replied, "I didn't have nothing to do with it. I told them to stop it." Mr Dastan said, "Fucking bullshit."
Mr Anderson then turned around and started to run up the stairs to his front door. Mr Dastan took a gun from his pocket and shot Mr Anderson once. Mr Anderson got halfway up the stairs and Mr Dastan shot him again. Mr Anderson reached the front door, followed by Mr Dastan and ZZ, where Mr Dastan fired two further shots. Mr Dastan and ZZ then returned to the car and were driven to Kemps Creek.

[3]

Jury verdict - basis of liability

The Crown contended that Mr Dastan and his several co-offenders were guilty of murder having acted pursuant to a joint criminal enterprise or an extended joint criminal enterprise. Mr Dastan's liability could therefore have been based upon a jury finding that: 1. (1) Mr Dastan shot Mr Anderson, or 2. (2) Mr Dastan was a party to an agreement with ZZ and others to either kill Mr Anderson or to cause him really serious injury and Mr Dastan agreed that ZZ would shoot Mr Anderson, or 3. (3) Mr Dastan was a party to an agreement with others to commit some other crime, such as assault or intimidation, and in participating in that joint criminal enterprise Mr Dastan foresaw the possibility that one of the others (ZZ) might deliberately shoot Mr Anderson with the requisite intention.
Any one of these possibilities would be entirely consistent with the jury's verdict.
Mr Dastan has always denied that he shot Mr Anderson. He gave evidence to that effect. It was submitted on his behalf, consistently with his evidence at the trial, that it was ZZ who shot Mr Anderson. Mr Dastan's testimony is the primary evidentiary basis for that contention. Mr Dastan also submits that it is supported by the fact that no gunshot residue was detected on him and his fingerprints were not located on the gun. That is to be compared with ZZ, whose fingerprints were found on the gun, an uncontroversial fact having regard to his handling of the weapon earlier during the course of the day, and that gunshot residue was also found on him. The latter fact is circumstantial support for Mr Dastan's submission but is not conclusive, and must be considered having regard to all of the evidence.
I am satisfied beyond reasonable doubt that it was Mr Dastan who fired the shots that killed Mr Anderson. There is evidence, which the jury were entitled to accept, that Mr Dastan was wearing gloves when he fired the gun. The anterior events, graphically illustrated in the several text messages exchanged by Mr Dastan and various other people, convincingly demonstrate his steadily increasing level of anger and frustration based upon a (mistaken) understanding that his brother, for whom he had a particular affection and a protective instinct, had been recently assaulted by Mr Anderson. The words heard by Mr Peckham that preceded the shooting could only logically have been spoken by Mr Dastan. They are consistent with a retributive intention and preceded the shooting by mere seconds.
Mr Dastan also gave the following evidence during his cross-examination: "HIS HONOUR: Just out of interest, Mr Dastan. When you wrote to [your co-accused] the two sentences, 'Yo my bro got jumped. I need gat pse,' what was the connection between those two sentences? A. My brother got jumped. I need gat please. Q. Yes. What's the connection between those two sentences? A. So my brother got jumped and I am asking for a gun. HIS HONOUR: Yes. CROWN PROSECUTOR: And the reason that you were asking for a gun is because your brother had been jumped, wasn't it? A. Yes. Q. And the reason that you were asking for a gun was because you wanted revenge for your brother who had been jumped? A. No."
Mr Dastan challenged Mr Anderson at Doonside in the moments before he was shot concerning the question of whether Mr Anderson had assaulted his brother. That exchange was immediately followed by shots that killed Mr Anderson. I do not accept Mr Dastan's denial of the proposition that he was asking for a gun because he wanted revenge for what he thought had been done to his brother. I consider that the evidence supports a finding beyond reasonable doubt that Mr Dastan wanted revenge and was asking for a gun to enable him to get it. It is not possible, having regard to all of the evidence, rationally to understand Mr Dastan's response, "So my brother got jumped and I am asking for a gun", in any other way. I find, consistently with the jury's verdict, that Mr Dastan fired the gun that killed Mr Anderson.
Mr Dastan also submitted that the offence was not premeditated or planned and that he did not intend to kill the victim. I consider that the jury's verdict is consistent with a conclusion that Mr Dastan planned to go to Mr Anderson's Doonside premises with a gun and to confront him there. The evidence establishes that Mr Dastan had driven by the premises as on a reconnaissance shortly before the shooting and that he gave directions to Baris Baris as they drove there on the night. He told Baris Baris where to park and instructed him to remain with the car.
I also find that Mr Dastan shot Mr Anderson with the intention of killing him. More than one shot was fired. Mr Dastan then pursued Mr Anderson after firing the first shot before firing three more times. I am unable in those circumstances to conclude that in shooting Mr Anderson Mr Dastan intended only to wound him by inflicting non-life threatening injuries.

[4]

Objective seriousness

The Crown submitted that in the assessment of the objective seriousness of the offence, the following matters were significant. The attack on Mr Anderson had an element of extra-judicial punishment, with Mr Dastan in effect taking the law into his own hands in relation to what was in fact a trivial matter. Mr Dastan made arrangements to seek retribution on his brother's behalf before he had confirmation of whether or not Mr Anderson actually had anything to do with the assault upon his brother, based merely upon the unestablished assumption that he had. Mr Dastan was motivated by anger and his desire for revenge. Moreover, the killing was not spontaneous, but on the contrary fomented over a period of at least 24 hours. That involved the sourcing and acquisition of a gun and ammunition, arranging for a car and a driver and the recruiting of ZZ to accompany him. The Crown contends that Mr Dastan intended to kill Mr Anderson. The Crown submitted that this murder fell within a high range of objective seriousness.
Mr Dastan submitted that, on the assumption that I found that he intended to kill Mr Anderson, the murder fell into the mid-range of objective seriousness. In support of that submission, counsel for Mr Dastan contended that Mr Dastan's emotional state at the time is relevant to this issue. By analogy with the concept of provocation, although not amounting to a defence, Mr Dastan argued that his anger and loss of self-control, believing that his younger brother had been assaulted and may have been critically endangered by reason of his epilepsy and susceptibility to seizures, provides an ameliorating circumstance that explains, even though it does not excuse, what he did. I consider that this submission has some merit.
In many respects, the murder of Mr Anderson was an unusual crime. There was no history of enmity between the two men. Mr Dastan was unreasonably quick to anger in so-called defence of his brother, without any real understanding of what had actually occurred or what, if any, involvement Mr Anderson might have had. Moreover, the response was definitively disproportionate, even assuming that Mr Anderson had assaulted Mr Dastan's brother in the way he believed. In a similar vein, that disproportion was manifest in the acquisition and use of a firearm, particularly taking account of the fact that Mr Dastan's brother was on any view of the assault not seriously harmed by what occurred. Mr Dastan assumed the role of avenging a perceived injustice in a wholly misguided fashion, with unnecessary and tragic consequences for Mr Anderson and for himself. I also observe that Mr Anderson was murdered at his home.
I consider that the murder of Mr Anderson in such circumstances falls to be assessed as objectively slightly above the mid-range of seriousness for offences of this kind.

[7]

Subjective circumstances

Mr Dastan's letter is a very brittle document, tracing what can only be described as an extremely unfortunate childhood and impoverished family circumstances. His father was violent and abusive. His grandfather was murdered when he was a boy. He was bullied at school. A football scholarship to Patrician Brothers College at Blacktown did not provide Mr Dastan with any long term advantages as he left school early and became disaffected with rugby league, at which he excelled, as the result of pressure from his father, who he seemed always unable to please. His younger brother descended into drug use, for which it would seem he considers himself responsible. Mr Dastan was originally medicated for depression and other serious mental health issues but also later turned to illicit drugs himself.
Mr Dastan relies on the report of Dr Xia, psychiatrist, who assessed Mr Dastan on 16 October 2023. Dr Xia noted that Mr Dastan has a history of adverse childhood experiences. Mr Dastan grew up having to take responsibility for his younger brother due to his father being in and out of gaol and battling drug and alcohol addiction, whilst his mother was absent and suffering from depression.
Ertan Dastan, Mr Dastan's uncle, said that he was "exposed to a lot of domestic violence, neglect, abandonment, trauma and tragedies from a very young age". It was submitted that I should in these circumstances take into account Mr Dastan's traumatic background during his formative years in a way that reduces his moral culpability pursuant to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Mr Dastan worked in retail and hospitality until he obtained his forklift and truck licence. He worked in the construction industry and, at the time of the offences, was working as a diesel mechanic.
Mr Dastan started using drugs when he was 17. At the time of offending, he was using drugs. Dr Xia diagnosed him with Substance Use Disorder. He is currently on an opioid substitution programme. It was not submitted that the self-induced intoxication mitigates the offending but that Mr Dastan might have been more prone to impulsivity and less capable of thinking reasonably. Mr Dastan also reported regular episodes of binge drinking, including in the months prior to entering custody.
In February 2023, Associate Professor Robertson diagnosed Mr Dastan with chronic schizophrenia and substance abuse disorder, complex posttraumatic stress disorder and an underlying personality disorder with Cluster B traits including prominent narcissistic, antisocial and borderline features. Dr Xia disagrees with these diagnoses of schizophrenia and PTSD.
Mr Dastan submitted that his personality disorder reduces his moral culpability in that it affected his interpersonal functioning and impulse control.
Mr Dastan has completed various courses whilst on remand, including drug and alcohol programs, Certificate 2 and 4 in business and sweeper and cooking courses. He is currently working at the gaol in ground maintenance and he has been offered employment at the reception after his sentence.
Mr Dastan submitted that, provided he addresses his use of illicit drugs and mental health issues, he has reasonable prospects of rehabilitation.

[14]

Sentence

The Crown submitted that Mr Dastan's criminality very significantly exceeds that of both Baris Baris and ZZ. His actions were the direct cause of Mr Anderson's death. I have already concluded that Mr Dastan intended to kill Mr Anderson. The Crown submitted that even if his actions were to be understood as evincing an intention only to cause really serious injury, they nevertheless involved such a grave risk of death that there is little difference in the criminality of the two states of mind.
In contrast to the contribution of Baris Baris and ZZ, Mr Dastan was the moving party in the organisation, planning and execution of the events that culminated in Mr Anderson's death. But for Mr Dastan's ill-founded concern to avenge the assault upon his brother, it is certain that Mr Anderson would not have been killed.
I acknowledge that there is a difference between the moral culpability of Mr Dastan and that of his co-offenders. I am not, however, persuaded that the difference is so great that a significantly different starting point for his sentence is warranted. Mr Dastan recruited his co-offenders in the joint criminal enterprise which became the source of their liability. Mr Dastan's plans were to involve these men for different roles at different times. It is not possible in the circumstances of this particular case logically to distinguish Mr Dastan's criminality from theirs by reference only to the fact that he pulled the trigger or by attributing, or so as to attribute, undue emphasis or significance to that fact.
There is no doubt that Mr Dastan committed a terrible and cowardly crime. Mr Anderson was at the time of his confrontation simply going about his business in the assumed security of his home and in the company of family and friends. He had no cause to expect what occurred. Mr Dastan's crime was marked by an irrational obsession and a stark disregard for human life. It was ominously self-indulgent and cannot be permitted to inspire others to act in the same way.
It is however appropriate to take account of Mr Dastan's traumatic childhood and mental health issues in the assessment of what in these awful circumstances is an appropriate sentence.
I make the following orders: 1. Cem Jim Dastan, for the murder of Craig Anderson on 27 May 2019 at Doonside in the State of New South Wales, I sentence you to imprisonment for 21 years commencing on 27 May 2019 and expiring on 26 May 2040 with a non-parole period of 15 years and 6 months expiring on 26 November 2034. 2. Cem Jim Dastan, for the offence of participating in a criminal group on 27 May 2019 at Doonside in the State of New South Wales I sentence you to imprisonment for 18 months commencing on 24 August 2022 and expiring on 23 February 2024. 3. The first date upon which you will become eligible for release on parole is 27 November 2034.
Finally, in compliance with s 25C of the Crimes (High Risk) Offenders Act 2006 (NSW), I note that the provisions of that Act have potential application to Mr Dastan. His solicitor may be expected to provide him with further information about that.

R v Dastan

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