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Dimian v R

Dimian v R

Case [2016] NSWCCA 223 17 October 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Dimian v R [2016] NSWCCA 223
Hearing dates: 24 August 2016
Date of orders: 17 October 2016
Decision date: 17 October 2016
Before: Hoeben CJ at CL at [1]
Hall J at [2]
Davies J at [3]
Decision:
(1) Grant leave to appeal;
(2) Appeal allowed;
(3) Quash the sentence imposed in the District Court on 17 April 2015. In lieu, sentence the appellant to an aggregate sentence of four years and six months commencing 17 February 2013 and expiring 16 August 2017 with an additional term of four years and six months expiring 16 February 2022.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – sexual assault – aggregate sentence exceeded the sum of the indicative sentences – whether indicative sentences represent non-parole period or whole sentence – re-sentence – totality principle – offender serving prior sentence – continued incarceration for more than 13 years for persistent similar offending - delay in prosecution – ‘cold case’ notification 20 years after offences – progress towards rehabilitation
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Humphries v R; Ponfield v R [2016] NSWCCA 86
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
McIntosh v R [2015] NSWCCA 184
Mill v The Queen (1988) 166 CLR 59
R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Todd [1982] 2 NSWLR 517
Category: Principal judgment
Parties: Michael Dimian (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Buchen (Applicant)
B Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/274633
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 April 2015

Before:

Williams DCJ

File Number(s):

2013/274633

Judgment

HOEBEN CJ AT CL: I agree with Davies J.
HALL J: I agree with the reasons of Davies J and the orders he has proposed.
DAVIES J: The Applicant pleaded guilty on 26 March 2015 at the Parramatta District Court to two counts as follows:

1. Detain for advantage and cause substantial injury. The maximum penalty for this offence is 20 years imprisonment; and

2. Aggravated sexual assault, the aggravation being malicious infliction of grievous bodily harm. The maximum penalty for this offence is 20 years imprisonment.

The Applicant asked the Court to take into account in relation to the second offence a further offence of aggravated sexual assault. I shall refer to these three offences as the index offences.

The Applicant was sentenced by his Honour Judge M Williams SC on 17 April 2015 to an aggregate sentence with a non-parole period of six years commencing 17 February 2014 and expiring 16 February 2020 with an additional term of three years expiring 16 February 2023. The Sentencing Judge specified the…

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 Dimian v R

Details

AGLC: Dimian v R [2016] NSWCCA 223
Case: [2016] NSWCCA 223
Decision Date: 17 October 2016

CaseChat Overview and Summary

The appellant, Dimian, sought to appeal against the sentence imposed upon him following his conviction for sexual assault. The appeal was heard in the High Court of Australia, which considered the aggregate sentence imposed by the trial court, which was argued to exceed the sum of the indicative sentences provided for the offences. The legal issues before the court involved the interpretation of the aggregate sentence, whether the indicative sentences represented the non-parole period or the whole sentence, and whether the totality principle was properly applied. The court needed to determine if the sentence was excessive given the nature of the offences and the appellant's circumstances, including his prior criminal history and the delay in prosecution.

The court analysed the sentencing principles and the principles of totality, focusing on whether the aggregate sentence was appropriate given the appellant's extensive criminal history and the delay in prosecution. The High Court concluded that the aggregate sentence did indeed exceed the sum of the indicative sentences, but found that the trial judge had properly considered the totality principle. The court noted that the appellant had been serving a prior sentence and that continued incarceration for more than 13 years for persistent similar offending was warranted. The court also acknowledged the delay in prosecution, which was due to a 'cold case' notification 20 years after the offences, and the appellant's progress towards rehabilitation.

The High Court held that the aggregate sentence was not manifestly excessive, and the trial judge had properly exercised their discretion. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of considering the totality principle and the appellant's criminal history in determining the appropriate sentence. Additionally, the court recognised the challenges presented by the delay in prosecution and the appellant's efforts towards rehabilitation, but found that these factors did not warrant a reduction in the sentence.

Orders