SOLICITORS: Galloways (Applicant) SE O'Connor (Respondent)
CATCHWORDS: CRIMINAL LAW - Appeal against sentence - Plea of guilty - Utilitarian discount - Relevance of circumstance that plea is to lesser charge than that originally brought.
DECISION: Leave to appeal be granted; appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 60026/03
HODGSON JA DOWD J BARR J
Tuesday 27 May 2003
REGINA V. Mohamed DIB
Judgment
HODGSON JA: I agree with the orders proposed by Dowd J, and generally with his reasons. I also agree with the remarks of Barr J.
In the course of his remarks on sentence, the sentencing judge said this:
38 Although there had been mention during the course of the judgment in R v Thomson and Houlton of situations where the late entry of pleas was or may have been influenced by the attitude of the prosecuting authorities - see [20] and [29], no separate consideration was given to that factor. Where the Crown accepts a plea to a lesser charge in full satisfaction of an indictment including a higher charge, a benefit is necessarily conferred on an offender even without any grant by a court of the normal discount for a plea. When one has regard to the rationale for that discount it does not seem to me that the rules or extent of the discount which apply in other situations should necessarily apply. I do not, of course, suggest that the sentence should reflect any component because the offender might have been guilty of the higher charge. I merely suggest that the interests of the courts do not require that the discount be as great or, at times, that it should exist. After all, the primary function of the punishment is to deal with the offender's criminality.
39 The topic is not one where precise quantification of benefit to the system or even to the particular trial is practical or, in most cases, even possible. Nor is it possible to compare in quantitative terms the saving in resources and cost resulting from a plea with a reduction in sentence measured either in years or percentage. Furthermore, the benefit to the justice system resulting from any plea is not restricted to the particular trial or offender. Some of that benefit lies in the message it sends to other offenders having the choice of pleading guilty or not guilty.
40 I am not persuaded that this was a case where the Crown case was particularly complex albeit there must have been a strong attack on Mr Rossinski's credibility and perhaps the credibility of…
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.
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Details
AGLC
R v Dib [2003] NSWCCA 117
Case
[2003] NSWCCA 117
Decision Date
CaseChat Overview and Summary
The appeal, R v Dib, was heard by the Court of Criminal Appeal. The applicant, who was originally charged with murder, pleaded guilty to manslaughter. The appeal centred around the sentencing judge's assessment of the discount for the plea of guilty and the consideration of parity with the co-offender. The court needed to determine whether the sentencing judge correctly applied the discount for the plea of guilty and whether the judge failed to consider parity with the co-offender.
The court examined the sentencing judge's approach to the discount for the plea of guilty. The court considered the principle that a plea of guilty can attract a discount in sentencing, but this discount should be carefully assessed. The court also examined whether the sentencing judge erred in not considering parity between the applicant and the co-offender. The court looked at the nature and extent of each offender's involvement in the crime and whether the sentencing judge appropriately balanced these factors.
The court found that the sentencing judge correctly assessed the discount for the plea of guilty. The court noted that the discount should reflect the benefits of the plea to the administration of justice and the circumstances of the offence. The court found that the judge appropriately considered these factors. Regarding the parity issue, the court found that the sentencing judge did not err in not applying a parity principle. The court held that while parity is a relevant consideration, it is not an inflexible rule. The court found that the judge appropriately balanced the involvement of each offender in determining the sentence.
The court dismissed the appeal, affirming the sentence imposed by the sentencing judge. The court held that the sentencing judge correctly assessed the discount for the plea of guilty and appropriately considered the circumstances of the offence. The court also held that the sentencing judge did not err in not applying a parity principle between the applicant and the co-offender.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The two grounds of appeal were, first, that the sentencing judge erred in the assessment of the appropriate discount to be applied for the applicant’s plea of guilty and, secondly, that the sentencing judge failed to take into account parity between the applicant and the co-offender.Summary of the facts on which the charge was based On Saturday 17 October 1998 the victim Edward Lee travelled with Peter Son, Daniel Son and Michael Rhee at about 7:15pm to Telopea Street, Punchbowl. Daniel Son telephoned the premises that the group were to visit to ascertain the number of the house, the driver having parked the car further up the street. The group alighted and walked towards a group of between seven to ten male persons, one of whom said to Peter Son:What the fuck are you looking at? Daniel Son entered the discussion and one of the group of seven to ten, Ahmad Dib, pushed Peter Son in the chest who took a step backwards and struck Ahmad Dib, the brother of the applicant, causing him to fall to the ground unconscious. Peter Son was then attacked by the group of seven to ten. His brother Daniel Son attempted to provide assistance. There was a general fight in which several people were seen to inflict blows, including the victim. The applicant’s brother, Moustapha Dib went to his house, obtained a knife and stabbed Edward Lee in the back and in the chest. The victim was able to get into the car and the other people from the car extricated themselves from the attack by other members of the group in Telopea Street and went back to the car which drove off. Guns were fired at the vehicle, a bullet lodging in the vehicle’s doorframe. An eye witness who knew Moustapha Dib said that Moustapha Dib said:I just clicked. Lee died as a result of the two deep stab wounds. Shortly after the stabbing Moustapha Dib and the applicant were at premises at Punchbowl and an associate present heard the applicant say:Don’t worry, it’s done, how are we going to fix it? One of the co-accused with the applicant, Mr Kanaan, received a telephone call during which he was heard to say, according to the Summary of Facts, “Drama at Telopea Street, someone got knocked”. It was claimed on behalf of Mr Kanaan that the last word used was “knifed”. The Crown Prosecutor indicated that he was content to proceed on that basis. Half an hour later there was another call following which Mr Kanaan, a Mr Rossinski and others left Surry Hills and travelled to Bondi Beach where they met with a number of males including the two Dib brothers and Mr Refai. Mohamad Dib told the group of the incident in Telopea Street. He said there were some Asians there, a fight occurred, and another of his brothers had been knocked to the ground. Upon seeing this, Moustapha Dib ran to a house, grabbed a knife, (returned) and then stabbed one of the Asians. Mr Kanaan and Mr Rossinski then made a number of telephone calls and there was also discussion about the best way of setting up an alibi. After what would seem to have been some significant consideration in that regard, an idea involving Hamilton Island was abandoned and the discussion turned to the topic of getting the Dibs to Queensland and organising a vehicle and clothes. Mr Rossinski offered suggestions on ways to strengthen this alibi by arranging for friends in Queensland to book a motel room and order food under the Dib’s name and keep the receipt and a decision was made that Mr Refai would drive Moustapha and Mohamed Dib and a fourth person to Queensland in a borrowed vehicle which had Queensland number plates.