Dionys v R

Case [2011] NSWCCA 272

Court of Criminal Appeal

New South Wales
Case Title: Dionys v R
Medium Neutral Citation: [2011] NSWCCA 272
Hearing Date(s): 3 November 2011
Decision Date: 14 December 2011
Jurisdiction:
Before:

McCLELLAN CJ at CL at 1
ADAMS J at 2
HOEBEN J at 12
Decision:

In respect of count 1, leave to appeal is granted but the appeal is dismissed.
In respect of count 2, leave to appeal is granted and the appeal is allowed.
The sentence imposed by his Honour on 2 December 2010 in respect of count 2 is quashed and the applicant is sentenced as follows:
In respect of count 2, the applicant is sentenced to a term of imprisonment with a non-parole period of 7 years and 6 months commencing 26 August 2010 and expiring 25 February 2018 with a balance of term of 4 years and 6 months expiring 25 August 2022.

Catchwords:

CRIMINAL LAW - sentence appeal - sale and possession of unauthorised firearms - sale and possession offences relating to same firearms - 179 firearm offences included on a Form 1 attached to the possession charge - whether applicant sentenced on a correct factual basis - application of standard non-parole period legislation to offences - need to re-sentence applicant - principles applicable when sentencing for an offence to which Form 1 matters are attached - the requirement to sentence only for the primary offence - need to partially accumulate sentences.
Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Cases Cited:

Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39
Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610
R v Grube [2005] NSWCCA 140
R v Brown [2006] NSWCCA 249
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Yammine v R [2010] NSWCCA 123
Texts Cited:
Category: Principal judgment
Parties:

Aristos Dionys - Applicant
Regina - Respondent Crown
Representation
- Counsel:

M Thangaraj SC/Mr I MacLachlan - Applicant
M Cinque - Respondent Crown
- Solicitors:

Kiki Kyracou Lawyers - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File number(s): 2009/192505
Decision Under Appeal
- Court / Tribunal:
- Before: Delaney DCJ
- Date of Decision: 02 December 2010
- Citation:
- Court File Number(s) 2009/192505
Publication Restriction:

JUDGMENT

  1. McCLELLAN CJ at CL : I agree with Hoeben J.

  2. ADAMS J:

    Introduction
    I agree with the judgment of Hoeben J and with his Honour's proposed orders. I wish to add a comment about an important aspect of this appeal. In respect of the possession charge, the applicant asked for 179 charges to be taken into account on a Form 1. The way in which this is to be done was explained in A ttorney General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002]…

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AGLC
Dionys v R [2011] NSWCCA 272
Case
[2011] NSWCCA 272
Decision Date

CaseChat Overview and Summary

The appeal in Dionys v R was against the sentence imposed by the Supreme Court of New South Wales on the applicant for multiple firearm offences. The applicant, who was a significant figure in the mid-level supply of firearms, was convicted of numerous charges, including the sale and possession of unregistered firearms. The sentence imposed was imprisonment with a non-parole period of 10 years and 6 months, and a balance of term of 4 years and 6 months. The applicant's appeal focused on the sentencing process, particularly the way in which the court dealt with the multiple offences on a Form 1 attached to the possession charge. The applicant argued that the sentence was not based on a correct factual basis and that the court had failed to properly apply the standard non-parole period legislation to the offences.

The court was required to determine whether the applicant was sentenced on a correct factual basis, whether the standard non-parole period legislation was correctly applied to the offences, and what principles should be applied when sentencing for an offence to which Form 1 matters are attached. Specifically, the court had to decide whether it was necessary to re-sentence the applicant, and if so, how to partially accumulate sentences in accordance with the requirement to sentence only for the primary offence.

The court found that the applicant's sentence was not based on a correct factual basis as his Honour had not adequately considered the distinction between the sale and possession of the same firearms. The court held that the standard non-parole period legislation should be applied to the sale and possession offences separately, rather than cumulatively. It was also determined that the court should sentence only for the primary offence, which in this case was the sale of the firearms, and partially accumulate sentences for the other offences. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter to the Supreme Court for re-sentencing. The court emphasised the importance of correctly identifying the primary offence and applying the appropriate sentencing principles when dealing with multiple offences relating to the same set of facts.

Orders

Orders of the court

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Background

Background to the litigation

The total sentence was imprisonment with a non-parole period of 10 years and 6 months with a balance of term of 4 years and 6 months. When sentencing, his Honour took into account in respect of count 2, 179 matters on a Form 1. Of those 179 matters, 89 related to the possession of unregistered firearms. The other offences on the Form 1 concerned matters associated with the possession of such weapons. Factual background The applicant came under notice of the police when Strike Force Bowl was set up in May 2009 to investigate the illegal supply of firearms in the Wollongong area. During May, June and July of 2009 the applicant was identified as a "prominent figure" in the mid level supply of firearms. During the period 16-17 June 2009 police undercover operatives had telephone calls with co-offenders Kafizas and Zarakas and purchased firearms from them. On 18 June 2009 an undercover operative attended a restaurant known as "Pacinos Restaurant" at Corrimal pursuant to an arrangement made by Kafizas. Kafizas and Zarakas were inside. The undercover operative spoke to them and then left and a short time later returned and saw Zarakas had a Hahn Light cooler bag at his feet. Zarakas picked up the bag and unzipped it and inside were two C96 Mauser pistols and a clear resealable bag containing 59 rounds of ammunition. The undercover operative handed over $8,500 in pre-recorded money to Zarakas, picked up the cooler bag, left the restaurant and took it to his car. He then went back into the kitchen area of the restaurant and spoke to Kafizas and handed him $300. On 21 June 2009 police legally monitored a telephone conversation between Zarakas and the applicant. During this conversation the applicant said "You remember the last set of mags I gave you, do you think they want another set of the same?" Zarakas said "Yeah". The applicant said "I'm getting another set the same". Zarakas said "Yeah, no worries right now these automotive products from overseas, they're actually going ahead with anything that comes forward because they're all going away in a month, so anything that comes forward". This conversation was in reference to the two C96 Mauser pistols that the applicant supplied to Zarakas which he further on-sold on 18 June for $8,500. They made arrangements to meet a local cafe to discuss the supply further. After meeting with the applicant, Zarakas contacted Kafizas and they discussed supplying the 7.63 Mauser pistol that the applicant had on offer. In a telephone call on the morning of 22 June 2009 Zarakas said to the applicant "Can you put petrol in a car for me?" The applicant replied "Yeah it's already there, it's been filled up". Pursuant to arrangements made with Kafizas, on 25 June 2009 the undercover operative drove to the Oxford Tavern, parked his car and walked to the Grinding On Demand Cafe where he met Kafizas and Zarakas. They walked back to the undercover officer's vehicle and Zarakas opened the rear passenger door, placed a plastic bag inside and opened it to show the undercover officer a 7.63 Mauser pistol and a yellow box containing 50 cartridges for it. The undercover officer gave Zarakas $4,250 and the latter placed the money in his pocket and left. Kafizas then approached the undercover officer and was handed $600.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ HOEBEN J

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ, HOEBEN J

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