Diamantis v The Queen - [2005] NSWCCA 433

CITATION:
Diamantis v R [2005] NSWCCA 433

HEARING DATE(S): 20/09/2005

JUDGMENT DATE:

16 December 2005

JUDGMENT OF:
Windeyer J at 1; Hislop J at 2, 31; Smart AJ at 30

DECISION:
(a) Windeyer J, Hislop J and Smart AJ: 1. Leave to appeal granted; 2. Appeal dismissed; (b) Hislop J - Related offence: 1. Appeal dismissed.

CATCHWORDS:
Criminal law - Break enter and steal in circumstances of aggravation - Standard non parole period inapplicable - Sentence - Related offence - Period of driving disqualification.

LEGISLATION CITED:

Crimes Act 1900 - s 112(2)
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986 - s 166

CASES CITED:
R v Chebat [2004] NSWCCA 211
R v P [2004] NSWCCA 218
R v Qutami [2001] NSWCCA 353
R v Simpson (2001) 53 NSWLR 704
R v Tait (1979) 46 FLR 386
R v Tobar [2004] NSWCCA 391
R v Way [2004] 60 NSWLR 168

PARTIES:
Appellant - Lucas Diamantis
Respondent - Regina

FILE NUMBER(S):
CCA 2005/1101

COUNSEL:
Appellant - Ms A Francis
Respondent - Ms J Dwyer

SOLICITORS:
Appellant - Legal Aid Commission of New South Wales
Respondent - Office of the Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/1049

LOWER COURT JUDICIAL OFFICER:
McGuire DCJ

- 12 -

2005/1101

WINDEYER J
HISLOP J
SMART AJ

16 December 2005

Lucas DIAMANTIS v R

Judgment

1 WINDEYER J: I agree with Hislop J.

HISLOP J:

Introduction

2 The applicant pleaded guilty to the offence of break, enter and steal in circumstances of aggravation (in company) contrary to the Crimes Act 1900 s 112(2). The maximum penalty for such an offence is 20 years imprisonment.

3 The facts of the offence, put shortly, were that at about 12.20am on 15 August 2003 the applicant, in company with another male person, broke into a shop in York Street Sydney and stole a quantity of computer equipment. The applicant and his companion departed the scene of the crime in a stolen van.

4 On 17 June 2004 the applicant was sentenced for that offence in the District Court to imprisonment for a non parole period of 4 years commencing on 15 August 2003 with the balance of the sentence of 2 years to expire on 14 August 2009.

5 In sentencing the applicant the Court took into account six offences on a Form 1 under the Crimes (Sentencing Procedure) Act 1999 being two counts of receive stolen property, two counts of make false statement and two counts of dispose of stolen property.

6 The applicant, who was born in April 1969, has sought leave to appeal against that sentence. The grounds of appeal are:

1. His Honour fell into error by determining that the standard non parole period applied in the applicant’s case.

2. His Honour had insufficient regard to the applicant’s subjective case.

3. His Honour did not take into account the finding of special circumstances in determining the non parole period.

Ground One – His Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Diamantis v The Queen

Details

AGLC: Diamantis v The Queen [2005] NSWCCA 433
Case: [2005] NSWCCA 433
Decision Date: 16 December 2005

CaseChat Overview and Summary

Diamantis v The Queen is a decision from the High Court of Australia concerning a matter of criminal law and sentencing. The appellant, Diamantis, was convicted of breaking and entering and stealing in circumstances of aggravation, along with other related charges. The primary legal issues that the court addressed were whether the standard non-parole period was applicable to the appellant's sentence and the appropriate length of a driving disqualification period for a related offence.

The court first considered the applicability of the standard non-parole period for the break and enter and steal offence. It was held that, due to the aggravating circumstances, the standard non-parole period was inapplicable. The court emphasised the need for a flexible approach to sentencing, taking into account the specific circumstances of each case. In this instance, the aggravating factors warranted a departure from the standard non-parole period.

Regarding the related offence, the court examined the appropriate length of the driving disqualification period. The appellant argued that the disqualification period should be concurrent with the sentence for the primary offence. However, the court found that the sentencing judge was entitled to impose a consecutive disqualification period, taking into account the seriousness of the driving offence and its relation to the primary offence. The court upheld the sentencing judge's decision, affirming that the disqualification period was appropriate.

The High Court ultimately dismissed the appeal, affirming the conviction and sentence imposed by the lower court. The court's decision highlights the importance of considering specific circumstances and the need for a flexible approach to sentencing in criminal matters.

Orders