NSWNSWSC

R v Fazlilar

[2018] NSWSC 1663

Supreme Court of NSW|2018-09-14|Before: Adams J, Gleeson CJ, Callinan JJ, McHugh J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-09-14

Before

Adams J, Gleeson CJ, Callinan JJ, McHugh J

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

Judgment

On 14 November 2015, Donovan Mileham was shot in the leg at close range in a hotel suite. His body was found two days later. He had bled to death. On 29 May 2018, a jury found Hasan Fazlilar guilty of the murder of Mr Mileham. They also found him guilty of an additional count of unauthorised possession of a pistol which occurred on 13 November 2015. Mr Fazlilar now stands to be sentenced for these offences.
The maximum penalty for the offence of murder is life imprisonment: s 19A(1) of the Crimes Act 1900 (NSW). The maximum penalty for an offence of possessing a firearm contrary to s 7(1) of the Firearms Act 1996 (NSW) is 14 years imprisonment. The Table in Part 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") specifies a standard non-parole period of 20 years imprisonment for the offence of murder and a standard non-parole period of four years for unauthorised possession of a pistol. These maximum penalties and standard non-parole periods are guideposts to which I must have regard.
In sentencing the offender it is necessary for me first to determine the facts upon which he is to be sentenced. These facts must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378. I may not take facts into account in a way adverse to the interests of the offender unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to the offender are established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
In addition to determining the facts in relation to which the offender is to be sentenced, I am required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: see McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

[8]

The Fraser Suites: 14 November 2015

The deceased and Mr Antony entered the Fraser Suites at about 6:00am and proceeded to room 3109. The offender and Mr Dimarelis met with Ms King at the ground floor lift lobby of the Fraser Suites at 6:09am and made their way to room 3109 as well. Records show that the safe in room 3109 was opened and then locked again at 6:18am. CCTV footage shows that Ms King left the Fraser Suites at about 6:30am and did not return.
After Ms King left the Fraser Suites, the men drank Chivas Regal and used both cocaine and methylamphetamine. Mr Dimarelis observed the offender and the deceased drinking alcohol and consuming cocaine. He described the mood as "good", "relaxed", "completely amicable" and stated that there was "nothing untoward at all".
Records show that the safe in the room was opened again at 11:30am and not locked again after that time. At around this time, Mr Dimarelis was coming out of the bathroom, which was off the bedroom, and heard a beeping sound associated with the opening of the safe. He walked past the deceased and the offender who were talking near the safe. He saw that the safe was open and observed the offender removing his gun from the safe and putting it down his pants. In the safe, near the offender's hand where the gun was, he also saw two boxes stacked on top of each other. He believed those boxes contained bullets.
Shortly thereafter, Mr Dimarelis went to go to sleep in the bedroom. Before he went to sleep, Mr Antony left the Fraser Suites to attend the Royal Prince Alfred Hospital (records show that he arrived there at 1:09pm). He did not return. From that time the only three persons left in the hotel suite were Mr Dimarelis, the offender and the deceased.
When Mr Dimarelis awoke a few hours later he decided to leave the apartment. As he walked from the bedroom to the lounge room the offender approached him and thrust the deceased's mobile telephone towards his face. The screen displayed the words "Police Crime." A subsequent analysis of the deceased's mobile telephone confirms that the deceased had the number for "Crime Stoppers" saved under this contact name. The offender then said to Mr Dimarelis something like "what do you think of this?" The deceased was sitting on the couch watching TV at the time.
The offender then thrust the mobile telephone in the deceased's face. The offender was mumbling in a low guttural tone then called the deceased a "dog". The offender grabbed hold of the deceased's shirt collar with one hand and started slapping him on the face with the other hand. Mr Dimarelis said "Huss what are you doing? He's harmless."
The offender then pulled the pistol from the top of his pants and started tapping it on the deceased's head near his temple. The deceased was in a foetal position on the couch trying to inch away from the offender's grasp. Mr Dimarelis described what happened next in these terms: "Donovan was just whimpering at that stage and Fazlilar was mumbling but I couldn't make out what it was, I wasn't close enough. I heard "dog" a few times. That is probably the only thing I could make out before he lowered the pistol from his head then started pointing it towards his leg… (the deceased) was in a foetal position and he was trying to get away… he was still in Hasan's grip… in that split second he lowered the gun to around the leg area and then he fired."
At the point the pistol was fired, the gun was partially obscured from Mr Dimarelis' sight. He heard the deceased scream as he jumped violently to his right. The deceased was rocking back and forth on the other side of the lounge and was in obvious pain. He said to Mr Dimarelis, "Louie, he shot me." Mr Dimarelis left almost immediately. CCTV footage shows him leaving the Fraser Suites at 3.58pm.
CCTV footage further shows that the offender exited the Fraser Suites eight minutes later, at about 4:06 pm. He was wearing the same clothing as when he entered including his black shoes with white soles. When he left the Fraser Suites he had the hood of his top pulled over his head and his face is not visible in the CCTV footage. The footage then shows the offender walking over to speak to a man outside the Fraser Suites near a delivery van. Police inquiries with the delivery van company located the relevant witness who gave evidence at the trial. He gave evidence that he had known the offender for a number of years but had not seen him for some time. He was working for a delivery company that just happened to have a job in the vicinity at that time. His evidence, which was consistent with what is depicted in the CCTV footage, was that when the offender recognised him he came over and spoke with him briefly. He described the offender as being very hard to understand.

[10]

16 November 2015

At about 2:30am on Tuesday, 16 November Ms King left Mr Dimarelis at a hotel near the Fraser Suites and about 2:45am she entered room 3109. CCTV footage shows that she had a large handbag with her when she entered the Fraser Suites. The Crown case was that she had gone to the room to retrieve the weapon. She left and returned to the hotel where she met with Mr Dimarelis. She told him that the body of the deceased was in the room. There was then subsequent contact between her and the offender.
At 6:14am on 16 November 2015, Mr Dimarelis telephoned "Triple 000" and reported that he was worried about a friend who he had been partying "pretty hard" at room 3109 of the Fraser Suites. He advised the operator that his friend was all right when he left him but he had not heard from him and could not get through to him on his mobile telephone. At that time, 38 hours and 20 minutes had elapsed since the offender shot the deceased.
The deceased's body was located in the apartment by Fraser Suites employees at about 6:40am on 16 November 2015. The police arrived just before 7:00am.
Inside room 3109 police located the offender's fingerprints on the kitchen table, bathroom door, bedroom door, kitchen tap, red "Winchester" plastic tray and on the outside of a white plastic bag. The fingerprints of the deceased, Ms King and Mr Antony were also located. The deceased's blood was found on the lounge, chaise, carpet and tiles. No weapon was found in the room but a quantity of .32 calibre ammunition was found in the safe. The table in the room was strewn with the indicia of drinking and drug taking.
The police commenced surveillance on the offender's rental car in Redfern. The offender and Mr Kelekci were pulled over by police while driving that car at around 4:00pm. The police located the shoes that the offender was wearing at the time of the shooting. Blood was found on the tongue of one shoe. It was later found to contain a DNA profile matching that of the deceased. A DNA profile matching the offender was found inside the shoes. A quantity of .38 calibre bullets was located under the rear seat of the car and the offender's fingerprint was located on the packaging. In addition, a Nokia phone belonging to the offender was located in the vehicle. The offender exercised his right to silence and was released.
On 15 November 2015, the deceased's mobile phone was found in the gutter on Phillip Street, Waterloo. It was inside a white plastic shopping bag. It was handed into police on 18 November 2015.
The offender's flat in Redfern was searched by police on 26 November 2015. They located an electronic key for the Fraser Suites and the remnants of a burnt red t-shirt in the shower area. The CCTV footage shows that the offender was wearing a red t-shirt on the day of the shooting.
The firearm was never located.

[15]

Murder

The murder charge was left to the jury on the basis that if they were satisfied either that the offender intended to inflict grievous bodily harm or to kill the deceased then the requisite mental element for the offence of murder had been established. At the proceedings on sentence both the Crown Prosecutor and Mr Austin submitted that the appropriate finding would be that the offender intended to inflict grievous bodily harm to Mr Mileham when he shot him in the leg. I have assessed the evidence going to this issue and I am satisfied that this is the case.
The only eyewitness account of the shooting was Mr Dimarelis who gave evidence that the gun was partially obscured at the time of the shooting but that after the offender initially pointed the gun at the deceased's head he moved it down and pointed it towards his leg before discharging the single round.
The evidence is that the offender and the deceased were getting on well until minutes before the shooting. I am satisfied that this senseless killing occurred when the offender, who had been on an alcohol and drug-taking binge, saw the "Police Crime" (Crime Stoppers) telephone number saved in the deceased's contacts and formed an irrational and incorrect suspicion that the deceased was some form of police informer and deserved to be punished in some way. This inference can be comfortably drawn given the fact that the offender could be heard uttering the word "dog" just prior to the shooting.
There is no evidence that this was a planned shooting nor any suggestion that the offender took the gun out of the safe with an intention to shoot the deceased. Despite this, the evidence clearly establishes that the offender had a loaded pistol in his hand at the time of the shooting. There was no suggestion in the evidence of Mr Dimarelis that the offender paused to load the pistol after seeing the mobile telephone contact and before the shooting. I am satisfied that it was the same pistol that the offender was seen to carry on previous occasions. Given the circumstances of the shooting, it seems likely that Mr Mileham would be alive today had the offender not been in possession of a loaded firearm at the time.
I am satisfied that the offender had engaged in "extreme drug use" prior to the shooting. Mr Dimarelis was unable to decipher what the offender was saying prior to the shooting besides the word "dog" and the witness who saw him immediately after leaving the Fraser Suites could barely understand what he was saying. The offender's thinking was no doubt affected to some extent by his drug use. This evidence supports the finding that the offence was unplanned.
Another aspect that is relevant to my assessment of the seriousness of this offence is that, after the shooting, the offender did not call for medical assistance. He left the Fraser Suites eight minutes later. The evidence of the forensic pathologist was that it is likely that Mr Mileham would have died within minutes but if he had received prompt medical treatment he might have survived. At the time Mr Dimarelis left the suite, Mr Mileham was still on the couch. His body was found two days later lying on the floor some distance away on his back with his pants unzipped. There is insufficient evidence for me to make any finding as to whether the offender dragged him to that position or whether the deceased made his way to that position before passing out.
There is evidence that the offender told Mr Dimarelis the day after the shooting that Mr Mileham had only been shot in the leg and was probably either at hospital or with police. This fact was relied upon by the offender's counsel as the basis for a submission that he may not have been aware of the significance of the shooting and that it was open to the Court to find that the offender believed assistance was going to come to the deceased relatively quickly given that a shooting had occurred in a serviced apartment.
Although there is insufficient evidence for me to be satisfied beyond reasonable doubt that Mr Mileham had died before the offender left the room, I am satisfied that the offender must have at least realised that he needed medical attention at the time he left. The deceased had called out to Mr Dimarelis that he had been shot and there was blood at the scene which, I am satisfied was there when the offender left the room.
I have had regard to all of the above features in assessing the objective seriousness of the offence. It was submitted on behalf of the Crown that I would assess the seriousness of this offence as being slightly below the mid-range. It was submitted on behalf of the offender that I would find the objective seriousness to be below mid-range on the basis that the offender shot the deceased in the leg without an intention to kill. It was suggested that this placed this offence into a different category to many other murders where a firearm is used.
Despite the use of a firearm in the killing of Mr Mileham, given the lack of planning and the fact that I am satisfied there was no intention to kill the deceased, I have assessed the seriousness of this offence as falling just below the mid-range of objective seriousness.

[16]

Possess Firearm

The offence contrary to s 7(1) of the Firearms Act relied upon the evidence of the offender being in possession of the pistol at The Love Machine on 13 November 2015, the day before the shooting. The elements of that offence are possessing or using a pistol or prohibited firearm without a licence or permit.
In the decision of Ayshow v R [2011] NSWCCA 240, Johnson J (with whom Bathurst CJ and James J agreed) identified features of this offence which bear upon its objective seriousness. These include whether the pistol is loaded and whether the offender possessed other ammunition. It was held that the fact that a pistol is possessed for one's own protection is not a matter of significant, if any, mitigation, given the policy underlying the offence. Significantly, the possession of a loaded pistol by a person with poor impulse control and instability in mood was said to give rise to issues of public safety, protection of the community and the need for a significant allowance of personal and general deterrence.
In assessing the seriousness of this offence, I have had regard to the fact that the offender's possession of the pistol was not an isolated event. Mr Dimarelis' evidence is that he had seen him in possession of it on prior occasions. He is to be sentenced on the basis that he was in possession of the pistol at The Love Machine, whilst other people were around, in circumstances where he was a regular user of ice and other drugs. The evidence is that the offender had in fact misplaced the pistol leaving it in a bedroom in The Love Machine. This presents a significant risk to public safety.
It was submitted on behalf of the Crown that the pistol was obviously part of the offender's "stock in trade". Although that may well be the case, there was no evidence before the Court as to what that trade was.
The Crown urged that I would assess the objective seriousness of this offence as being well above the mid-range. Mr Austin did not directly challenge the making of such a finding but submitted that the sentence for this offence should be served concurrently with the sentence for the murder.
I have had regard to all of these factors and have assessed the objective seriousness of being above mid-range for an offence contrary to s 7(1) of the Firearms Act.

R v Fazlilar - [2018] NSWSC 1663 - NSWSC 2018 case summary — Zoe

R v Fazlilar

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Judgment (24 paragraphs)

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