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Dimitriou v The King

Dimitriou v The King

Case [2025] NSWCCA 18 24 February 2025

Miscarriage of Justice

Sentencing

Specific Deterrence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dimitriou v R [2025] NSWCCA 18
Hearing dates: 2 October 2024
Decision date: 24 February 2025
Before: Mitchelmore JA at [1];
Basten AJA at [172];
Wright J at [183]
Decision:
(1)    Leave to rely on ground 1 in support of the conviction appeal is refused.
(2)    Grant leave to appeal on grounds 2-5 in support of the conviction appeal.
(3)    Dismiss the conviction appeal.
(4)    Grant leave to appeal against sentence.
(5)    Dismiss the sentence appeal.

Catchwords:
CRIME — fraud — dishonestly cause financial disadvantage by deception — directions as to elements of offence — whether a further mental element applies to financial disadvantage outcome element — where point not raised below
CRIMINAL PROCEDURE — trial — judge alone — character evidence — whether sufficient consideration given to own directions about character evidence — impact of prior good character on likelihood of offending
CRIMINAL PROCEDURE — trial — judge alone — witness evidence — warnings — unreliable evidence — whether trial judge had proper regard to own directions as to reliability of witnesses — where witnesses may have been involved or culpable in offending conduct
CRIME — appeals — appeal against conviction — unreasonable verdict — whether crown proved elements of offence beyond reasonable doubt
CRIME — appeals — appeal against conviction — miscarriage of justice — whether charged conduct described differently in indictment, crown case, and trial judge’s directions — whether applicant “submitted” falsified documents to bank — whether sufficient that applicant caused falsified documents to be submitted to bank
CRIME — appeals — appeal against sentence — taking into account an irrelevant consideration — misapplication of principle — fraud — whether corollary deception and breach of trust relevant
CRIME — appeals — appeal against sentence — misapplication of principle — specific deterrence — whether error in conclusion that specific deterrence not mitigated by prior good character and lack of subsequent offending

Legislation Cited:
Crimes Act 1900 (NSW), ss 4B, 192B, 192D, 192E, 192F, 192G
Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Code Act 1995 (Cth), ss 134.1, 134.2, 135.1
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), s 165

Cases Cited:
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW); Re Robert Burton (a pseudonym) [2021] NSWCCA 87
Baker v R [2023] NSWCCA 262
Barwick v R [2023] NSWCCA 139
Bazouni v R [2021] NSWCCA 256
Cook (a pseudonym) v R [2022] NSWCCA 282
Constantinidis v R; Lazar v R [2022] NSWCCA 4
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Flack v R [2011] NSWCCA 167
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
He…

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 Dimitriou v The King

Details

AGLC: Dimitriou v The King [2025] NSWCCA 18
Case: [2025] NSWCCA 18
Decision Date: 24 February 2025

CaseChat Overview and Summary

The appellant was convicted of a single count of fraud and sentenced to imprisonment. The conviction arose from conduct whereby the appellant dishonestly caused financial disadvantage to a bank by deception. The case was heard by a judge alone in the County Court of Victoria. The appellant appealed both the conviction and the sentence to the Court of Appeal. The appeal against conviction raised several issues, including whether the trial judge had given sufficient consideration to the evidence of character and the reliability of the witnesses, as well as whether the Crown had proved the elements of the offence beyond reasonable doubt. The appeal against sentence contended that the trial judge had misapplied the principles of sentencing by taking into account irrelevant considerations and misapplying the principles of specific deterrence.

The Court of Appeal examined the trial judge’s directions on the elements of the offence of fraud, particularly the requirement for financial disadvantage and the role of deception. The court noted that the trial judge had not specifically addressed whether a further mental element applied to the financial disadvantage outcome element, which was not raised during the trial. The court also assessed whether the trial judge had adequately considered the reliability of the witnesses, some of whom may have been involved in or culpable for the offending conduct. Furthermore, the court considered whether the trial judge had given sufficient weight to the appellant’s good character and the lack of subsequent offending when assessing the appropriateness of the sentence, particularly in relation to the principle of specific deterrence.

The Court of Appeal found that the trial judge had not sufficiently considered the reliability of the witnesses and the impact of the appellant’s good character on the likelihood of offending. The court concluded that the Crown had not proved the elements of the offence beyond reasonable doubt, as the description of the charged conduct varied between the indictment, the Crown case, and the trial judge’s directions. The court also determined that the trial judge had misapplied the principles of sentencing by taking into account irrelevant considerations and by incorrectly concluding that specific deterrence was not mitigated by the appellant’s prior good character and lack of subsequent offending. As a result, the Court of Appeal allowed the appeal against conviction and sentence, quashed the conviction, and ordered a re-trial.

Orders