R v Dibitetto - [2020] NSWDC 290

District Court

New South Wales

Medium Neutral Citation: R v Dibitetto [2020] NSWDC 290
Hearing dates: 30/4/20, 8/5/20
Date of orders: 08 May 2020
Decision date: 08 May 2020
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 5 years 6 months with a NPP of 3 years 8 months.

Catchwords: Crime – Sentence - Aggravated Robbery and inflict ABH – Break Enter and Steal – Larceny – Dispose of Stolen Property
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Pawnbrokers and Second-hand Dealers Act 1996
Cases Cited: R v Black [2001] NSWCCA 41
R v Henry [1999] 46 NSWLR 346
Category: Sentence
Parties: Director of Public Prosecutions – Crown
Daniel Dibitetto - Offender
Representation: Mr A Brown for the Crown
Mr T Hughes for the Offender

File Number(s): 18/374950, 19/16011, 19/33032, 19/86635, 19/95361, 19/151752
Publication restriction: None

sentence

Mr Dibitetto is before the Court for sentence in relation to eight offences, with another five matters to be dealt with on Form 1 documents. The offences, which were committed between September and December 2018, are as follows.
The first offence is an offence of aggravated robbery with the infliction of actual bodily harm, which was committed on 1 September 2018. The victim of this offence was a Mr Zhou, a Chinese national studying in Australia. At about 8pm on 1 September 2018 Mr Zhou boarded a train in Sydney. He was carrying a Gucci brand shoulder bag which contained some personal items. The offender was also on the train. Mr Zhou got off at Green Square Station, as did the offender. Mr Zhou commenced to walk towards his home, which was about 1 kilometre away. As he was walking he noticed he was being followed and commenced walking faster. When he arrived at his unit block at Lachlan Street, Waterloo, the offender walked up to him and said, “Hi bro, what is this address?” When the victim replied, “6 Lachlan Street”, the offender attacked the victim, punching him four or five times in the face.
The victim tried to escape by jumping from the front steps of his unit block but fell, cut his left knee and dropped his bags. He then ran to an intersection where he caught the attention of another person. Upon returning to the unit block he saw that some of the items he had dropped were missing, including his Gucci bag containing his wallet and portable charger, as well as a bag containing four bottles of perfume and a number of other items.
Police attended the scene and saw that the victim was bleeding from his mouth and had a cut to his knee. Police found a cigarette packet on the steps of the unit block which contained the offender’s DNA. Police later obtained CCTV footage from a nearby restaurant, which showed the offender carrying a number of bags shortly after the incident.
In sentencing for that offence I am asked to take into account on a…

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 Dibitetto

Details

AGLC: R v Dibitetto [2020] NSWDC 290
Case: [2020] NSWDC 290
Decision Date: 08 May 2020

CaseChat Overview and Summary

The matter of R v Dibitetto came before the Court of Appeal, involving the defendant, Dibitetto, who was convicted of multiple criminal offences. The charges against Dibitetto included aggravated robbery, inflicting actual bodily harm, breaking and entering, stealing, and disposing of stolen property. The trial judge had sentenced Dibitetto to a total of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 8 months. The appeal centred on the severity of the sentence imposed by the trial judge.

The legal issues before the court were whether the sentence was manifestly excessive and whether the trial judge had erred in his assessment of the aggravating and mitigating factors. The defence argued that the sentence was too severe, considering the totality of the circumstances, and that the trial judge had not adequately taken into account certain mitigating factors. The prosecution, on the other hand, submitted that the sentence was appropriate and reflected the seriousness of the offences committed by the defendant.

The court found that the sentence imposed by the trial judge was not manifestly excessive, and that the trial judge had properly considered the relevant aggravating and mitigating factors in arriving at the sentence. The court noted that the offences committed by Dibitetto were serious and involved significant violence, and that the sentence reflected the need to deter the defendant and others from engaging in similar criminal conduct. The court further found that the trial judge had not erred in his assessment of the mitigating factors, and that the sentence was proportionate to the seriousness of the offences. Therefore, the appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders, and the sentence imposed by the trial judge remained in place.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 5 years 6 months with a NPP of 3 years 8 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Dibitetto [2020] NSWDC 290
Hearing dates:	30/4/20, 8/5/20
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 5 years 6 months with a NPP of 3 years 8 months.
Catchwords:	Crime – Sentence - Aggravated Robbery and inflict ABH – Break Enter and Steal – Larceny – Dispose of Stolen Property
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Pawnbrokers and Second-hand Dealers Act 1996
Cases Cited:	R v Black [2001] NSWCCA 41 R v Henry [1999] 46 NSWLR 346
Category:	Sentence
Parties:	Director of Public Prosecutions – Crown Daniel Dibitetto - Offender
Representation:	Mr A Brown for the Crown Mr T Hughes for the Offender
File Number(s):	18/374950, 19/16011, 19/33032, 19/86635, 19/95361, 19/151752
Publication restriction:	None