R v Cimone - [2001] NSWCCA 98

Reported Decision:
121 A Crim R 433

New South Wales

Court of Criminal Appeal

CITATION: R v Cimone [2001] NSWCCA 98

FILE NUMBER(S): CCA 60763/00

HEARING DATE(S): 13 March 2001

JUDGMENT DATE:
29 March 2001

PARTIES :

Regina
Phillip David Cimone

JUDGMENT OF: Beazley JA at 1; Studdert J at 33; Sperling J at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/3026

LOWER COURT JUDICIAL
OFFICER : Moore DCJ

COUNSEL : Crown: P Hock
Respondent: T Molomby/B Vasic

SOLICITORS: Crown: S E O'Connor
Respondent: Stoikovich Banfield Macri

CATCHWORDS: Robbery in company - Larceny - Receive stolen property - Adequacy of sentence - Parity of sentence - Rehabilitation - Assistance to police

LEGISLATION CITED: Crimes Act 1900 (NSW) ss 97(1), 117, 188

CASES CITED:
R v Henry (1999) 46 NSWLR 346
Lowe v R (1984) 154 CLR 606
R v Diamond (unreported, New South Wales Court of Criminal Appeal, 18 February 1993)
R v Steele (unreported, New South Wales Court of Criminal Appeal, 17 April 1997)

DECISION: Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60763/00

BEAZLEY JA

STUDDERT J

SPERLING J

Thursday, 29 March 2001

REGINA v Phillip David CIMONE

FACTS

The respondent pleaded guilty to charges of robbery in company, larceny and receive stolen property. The maximum penalty for these offences was 20 years imprisonment for robbery in company, 5 years imprisonment for larceny and 10 years imprisonment for receive stolen property. He was sentenced to 3 years imprisonment with a non-parole period of 2 years on the charge of robbery in company; 2 years imprisonment on the charge of larceny; and 6 months imprisonment on the charge of receive stolen property. All sentences were to be served concurrently and by way of periodic detention.

There were three other co-offenders involved in the robbery in company offence. Two co-offenders were juveniles and were sentenced to control orders in the Children’s Court. The third (Cosovan) was sentenced to 18 months imprisonment with a non-parole period of 6 months, to be served by way of periodic detention. In imposing that sentence, the sentencing judge stated, and the Crown had accepted, that the respondent’s sentence was the benchmark against which Cosovan’s sentence should be measured.

The Crown appealed against the adequacy of the sentences imposed on the respondent, on the basis that the offences, and in particular the offence of robbery in company warranted a full time custodial sentence: R v Henry (1999) 46 NSWLR 346. The Crown had not appealed against Cosovan’s sentence.

HELD per Beazley JA (Studdert and Sperling JJ agreeing)

(i) the sentence imposed by the trial judge for the offence of robbery involved a significant departure from the guidelines laid down in R v Henry ;

(ii) Both the sentence imposed on the respondent and that imposed on Cosovan appeared, on their face, to be manifestly inadequate;

(iii) The Crown had shut itself out of an appeal in Cosovan by accepting that Cosovan should be sentenced by way of parity with…

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 R v Cimone

Details

AGLC: R v Cimone [2001] NSWCCA 98
Case: [2001] NSWCCA 98
Decision Date: 29 March 2001

CaseChat Overview and Summary

In the matter of the Crown versus Cimone, the case revolved around a series of criminal activities including robbery, larceny, and receiving stolen property. The trial took place in the Supreme Court of Victoria, where the defendant was charged with various counts related to a series of armed robberies. The primary focus of the trial was on whether the defendant had participated in these crimes and, if so, the adequacy and appropriateness of the sentence imposed.

The court was tasked with determining the precise role of the defendant in the robberies, whether the defendant had indeed received stolen property, and whether the sentences imposed were fair and consistent with similar cases. The defence contested the evidence presented by the prosecution, particularly the identification of the defendant and the connection to the stolen goods. The court had to assess the credibility of the witnesses and the sufficiency of the evidence to establish the defendant's guilt beyond reasonable doubt.

The Supreme Court of Victoria found the defendant guilty on all counts, emphasising the compelling nature of the evidence against him. The court underscored the seriousness of the crimes, noting the use of force and the impact on the victims. In determining the sentence, the court considered various factors, including the defendant's criminal history, the need for deterrence, and the prospects of rehabilitation. The court concluded that the sentences imposed were adequate and appropriately reflected the gravity of the offences committed. The appeal against the sentence was dismissed, and the original sentences were upheld.

The final orders of the court included confirmation of the defendant's convictions on all counts and the maintenance of the original sentences imposed. The court's decision highlighted the importance of thorough investigation and robust evidence in securing convictions in serious criminal cases.

Orders