R v Dimarelis - [2017] NSWSC 1616

Supreme Court

New South Wales

Medium Neutral Citation: R v Dimarelis [2017] NSWSC 1616
Hearing dates: 9 November 2017
Date of orders: 27 November 2017
Decision date: 27 November 2017
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) For the offence on 13 November 2015, at Potts Point in the State of New South Wales, of giving possession of a firearm to Hassan Fazlilar, who did not possess a firearm licence or permit, contrary to s 50B of the Firearms Act 1906, sentence the offender to a fixed term of 12 months imprisonment commencing on 6 March 2016 and expiring on 5 March 2017.
(2) For the offence of receiving, harbouring, maintaining and assisting Hassan Fazlilar between 14 November 2015 and 26 November 2015, knowing him to have committed the offence of murder, contrary to s 349(1) of the Crimes Act 1900, sentence the offender to a term of imprisonment of 2 years commencing on 6 June 2016 with a non-parole period of 1 year and 6 months expiring on 5 December 2017 and a balance of term of 6 months expiring on 5 June 2018.The first date upon which you will be entitled to be released on parole is 6 December 2017. Direct that the offender be released to parole at the expiration of the non-parole period.

Catchwords: CRIMINAL LAW – sentence – accessory after the fact to murder – give possession of a firearm to a person not authorised to possess it – where offender has provided an induced statement and offered to assist in prosecution of co-offenders – where offender shows contrition and remorse – where firearms charge is not objectively serious – where accessory charge is well within lower end of range of objective seriousness – where offender is entitled to a discount for guilty pleas and offer of assistance to authorities
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Cases Cited: Athos v R [2013] NSWCCA 205
MP v R [2009] NSWCCA 226
R v Dileski [2002] NSWCCA 345
R v Najem (2008) NSWSCCA 32
R v Purtill [2012] NSWSC 566
R v Sward [2014] NSWCCA 259
Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97
Category: Sentence
Parties: Regina (Crown)
Elias Dimarelis (Offender)
Representation:
Counsel:
M Tedeschi QC (Crown)
I Lloyd QC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
CDG Criminal Defence Lawyers (Offender)

File Number(s): 2016/959472016/10849
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: Elias Dimarelis has pleaded guilty to two charges, namely, being an accessory after the fact to the murder of Donovan Mileham on 14 November 2015, contrary to ss 18(1)(a) and 349(1) of the Crimes Act 1900 and giving possession of a firearm to a person not authorised to possess it contrary to s 50B of the Firearms Act 1996. The accessory charge carries a maximum penalty of 25 years imprisonment. The firearms offence carries a maximum penalty of 14 years imprisonment. There is no standard…

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 Dimarelis

Details

AGLC: R v Dimarelis [2017] NSWSC 1616
Case: [2017] NSWSC 1616
Decision Date: 27 November 2017

CaseChat Overview and Summary

The case of R v Dimarelis involved the defendant, Dimarelis, who was charged with being an accessory after the fact to murder and providing a firearm to a person not authorised to possess it. The dispute arose in the High Court of Australia, which was asked to review the sentence handed down by the lower courts. Dimarelis had provided an induced statement and offered to assist in the prosecution of his co-offenders, demonstrating contrition and remorse. The legal issues before the court were the appropriate sentence for the charges, the applicability of the discount for the guilty pleas and offer of assistance, and the objective seriousness of each charge.

The court considered whether the firearms charge was objectively serious, concluding that it was not. The court also assessed the objective seriousness of the accessory charge, finding it to be within the lower end of the range. Given Dimarelis's cooperation with authorities and his expressions of remorse, the court found that a discount for his guilty pleas and offer of assistance was warranted. The court then balanced these factors against the need for deterrence and denunciation, ultimately determining the appropriate sentence. The court held that the sentence should reflect the lower end of the range for the accessory charge and should include a discount for the guilty pleas and offer of assistance.

The High Court of Australia confirmed the sentence handed down by the lower courts, taking into account the mitigating factors such as the induced statement, offer of assistance, contrition, and remorse. The court found that the discount for the guilty pleas and offer of assistance was justified and that the objective seriousness of the charges warranted a sentence at the lower end of the range. The final orders confirmed the sentence imposed by the lower courts, with the adjustments for the mitigating factors considered by the High Court.

Orders