R v Dimakos (a pseudonym) - [2018] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dimakos (a pseudonym) [2018] NSWCCA 78
Hearing dates: 23 April 2018
Decision date: 30 April 2018
Before: Hoeben CJ at CL at [1]
Rothman J at [2]
Button J at [6]
Decision:
(1)The sentence imposed by Judge Frearson SC on 2 February 2017 is quashed;
(2)The respondent is sentenced to a non-parole period of one year, four months and two weeks, to commence on 2 February 2017 and conclude 15 June 2018, with a parole period of one year, four months and two weeks, to expire on 29 October 2019;
(3)The respondent will be released to parole on 15 June 2018.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – s 5DA Criminal Appeal Act 1912 (NSW) – where respondent undertook to provide assistance by giving evidence against co-offender – sentencing judge allowed 9% discount for promised future assistance – respondent failed to give promised future assistance at trial of co-offender– whether respondent failed wholly or partly fulfil his undertaking – whether discretion not to increase sentence by removing discount should be exercised
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Criminal Appeal Act 1912 (NSW), s 5DA
Evidence Act 1995 (NSW), s 38
Cases Cited: R v MG [2016] NSWCCA 304
R v Pambris [2018] NSWDC 24
R v Shahrouk [2014] NSWCCA 87
Category: Principal judgment
Parties: Regina
Spiros Dimakos (a pseudonym)
Representation:
Counsel:
F Veltro (Crown)
M C Ramage QC (Respondent)
Solicitors:
Solicitor for Public Prosecutions
Andrews Solicitors

File Number(s): 2016/14402
Publication restriction: Pseudonym adopted for the Respondent.
Decision under appeal

Jurisdiction:

Criminal

Date of Decision:

02 February 2017

Before:

Frearson SC DCJ

File Number(s):

2016/14402

Judgment

HOEBEN CJ AT CL: I agree with Button J and the orders he proposes.
ROTHMAN J: I have had the advantage of reading the judgment in draft of Button J and the orders he proposes. I agree with the orders proposed. It is unnecessary to deal with any factual analysis as it has been done in detail by Button J in his reasons.
I agree with the analysis of the facts and I agree with the analysis and approach of Button J in his reasons, under the subheading Determination of Appeal.
I do not consider this is the appropriate vehicle for determining whether, in some circumstances, a general review of the sentence imposed may be appropriate. Further the evidence of subsequent events is relevant, at least, to the exercise of the residual discretion. Whether it is relevant to any other question depends on whether the Court is embarking upon a resentencing process.
The terms of the statute are clear and the Court ought not, where unnecessary, constrain the breadth of the jurisdiction conferred or add a gloss to the words of the statute.
BUTTON J:

Introduction

This is a Crown appeal brought pursuant to s 5DA of the Criminal Appeal Act1912 (NSW). The appeal-creating provision in its entirety is as follows:

5DA…

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 Dimakos (a pseudonym)

Details

AGLC: R v Dimakos (a pseudonym) [2018] NSWCCA 78
Case: [2018] NSWCCA 78
Decision Date: 30 April 2018

CaseChat Overview and Summary

The appeal before the court involved the Crown, appealing against the sentence imposed on the respondent, Dimakos, who had been convicted of drug trafficking. The Crown sought to increase the sentence based on Dimakos' failure to provide the promised future assistance by giving evidence against a co-offender, as per the agreement with the prosecution. The matter was heard in the Supreme Court of New South Wales. The primary legal issue that the court had to address was whether Dimakos had wholly or partly failed to fulfil his undertaking to provide future assistance, and if so, whether the discretion not to increase the sentence by removing the discount should be exercised.

The court considered that Dimakos had not fully complied with his obligation to give evidence against the co-offender. Although he had provided some information during the trial, it was not the comprehensive assistance that had been agreed upon. The court noted that the sentencing judge had already allowed a 9% discount for the promised future assistance. The Crown argued that the discount should be removed, leading to an increase in the sentence. However, the court found that the sentencing judge had exercised their discretion appropriately in allowing the discount and did not see the need to remove it. The court determined that Dimakos had not wholly failed to fulfil his undertaking, and therefore, the discretion not to increase the sentence by removing the discount should not be exercised.

In conclusion, the Supreme Court of New South Wales dismissed the Crown's appeal against the sentence. The court held that Dimakos had not wholly failed to fulfil his undertaking to provide future assistance and that the discretion not to increase the sentence by removing the discount should not be exercised. The original sentence imposed on Dimakos remained in place.

Orders