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 38Cases Cited: R v MG [2016] NSWCCA 304
R v Pambris [2018] NSWDC 24
R v Shahrouk [2014] NSWCCA 87Category: Principal judgment Parties: Regina
Spiros Dimakos (a pseudonym)Representation: Counsel:
Solicitors:
F Veltro (Crown)
M C Ramage QC (Respondent)
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
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HOEBEN CJ AT CL: I agree with Button J and the orders he proposes.
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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.
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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.
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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.
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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.
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BUTTON J:
Introduction
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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…
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- AGLC
- R v Dimakos (a pseudonym) [2018] NSWCCA 78
- Case
- [2018] NSWCCA 78
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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