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R v Dileski

R v Dileski

Case [2002] NSWCCA 345 21 August 2002

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Reported Decision:
(2002) 132 A Crim R 345

New South Wales

Court of Criminal Appeal

CITATION: R v Dileski [2002] NSWCCA 345

FILE NUMBER(S): CCA 60709/01

HEARING DATE(S): 12 August, 2002

JUDGMENT DATE:
21 August 2002

PARTIES :

Crown
Robert Dileski

JUDGMENT OF: Hidden J at 1; Adams J at 20

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0472

LOWER COURT JUDICIAL
OFFICER : Blanch CJ/DC

COUNSEL : PG Berman SC - Applicant
DC Frearson - Crown

SOLICITORS: Brenda Duchen - Applicant
SE O'Connor - Crown

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - accessory after the fact to murder - error by primary judge in particularising the offence - re-sentence - account taken of subsequent assistance to authorities.

LEGISLATION CITED: Crimes Act 1900
Crmes (Sentencing Procedure) Act 1999

CASES CITED:
R v Levy [1912] 1 KB 158
R v Farroukh (CCA, unreported, 29.3.96)
R v Thomson (2000) 49 NSWLR 383
R v Chu (CCA, unreported, 16.10.98)

DECISION: See para 19

60709/01

HIDDEN J
ADAMS J

21 August 2002

REGINA v Robert DILESKI

JUDGMENT

1 HIDDEN J: The applicant, Robert Dileski, pleaded guilty in the District Court to a charge of being an accessory after the fact to murder, an offence under s 349 of the Crimes Act which carries a maximum sentence of imprisonment for 25 years. He was sentenced to imprisonment for 5 years, to commence on 13th September 2001, with a non-parole period of 3 years. He seeks leave to appeal against that sentence.

2 Put shortly, the facts are that on 24th January 2001 the principal offender, Saso Krstevski, murdered his employer, David Duncan, at the factory where he worked. He hid the victim’s body and contacted the applicant, who came to the factory. At the request of Krstevski, the applicant went to a nearby bank to cash a cheque drawn on the deceased’s account. He returned to the factory, and stayed there while Krstevski went to the same bank to cash another of the deceased’s cheques. While he was there a friend of the deceased, Mr Rob Annesley, called at the factory to see the deceased but the applicant told him that he had left half an hour earlier. He remained at the factory effectively as caretaker of the premises while Krstevski was absent.

3 As a result of suspicions about the deceased’s safety, police were called and eventually his body was discovered. Krstevski was arrested soon afterwards but denied any knowledge of the killing. The applicant also denied any knowledge of the matter when first interviewed by the police on the following day, 25th January 2001. After further enquiries he was interviewed again on 16th February 2001, and eventually he admitted his involvement in the manner outlined above.

4 In his remarks on sentence, the learned sentencing Judge particularised the applicant’s criminality in this way:

The prosecution relies in this case particularly on the assistance given by the prisoner to the principal offender in that firstly 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 R v Dileski

Details

AGLC: R v Dileski [2002] NSWCCA 345
Case: [2002] NSWCCA 345
Decision Date: 21 August 2002

CaseChat Overview and Summary

In the case of R v Dileski, the defendant appealed against his sentence for being an accessory after the fact to murder, arguing that the primary judge had erred in particularising the offence. The matter was heard in the Court of Appeal. The central dispute was whether the primary judge's error in particularising the offence warranted re-sentencing, and if so, whether the defendant's subsequent assistance to the authorities should be taken into account.

The court was required to determine whether the primary judge's error in particularising the offence constituted a significant procedural error that warranted re-sentencing. Additionally, the court needed to assess whether the defendant's subsequent assistance to the authorities could be considered in the re-sentencing process. The court had to balance the need for consistency in sentencing with the principles of mercy and rehabilitation.

The Court of Appeal found that the primary judge's error in particularising the offence was indeed a significant procedural error that warranted re-sentencing. The court held that the primary judge had not adequately considered the defendant's subsequent assistance to the authorities, which played a crucial role in the resolution of the case. The court also acknowledged the defendant's genuine remorse and efforts to assist the authorities in apprehending the principal offender. After considering these factors, the Court of Appeal reduced the defendant's sentence, taking into account his substantial assistance.

The Court of Appeal granted the defendant leave to appeal against his sentence and ordered that a re-sentencing hearing be held. The court directed that the re-sentencing hearing consider the defendant's subsequent assistance to the authorities and his expressions of remorse. The court also directed that the re-sentencing be proportionate to the defendant's role in the offence and his efforts to assist in resolving the case.

Orders