R v Dimitri Timon - [2010] NSWSC 189

CITATION: R v Dimitri TIMON [2010] NSWSC 189

HEARING DATE(S): 22/07/09-24/07/09, 27/07/09-31/07/09, 03/08/09-07/08/09, 10/08/09-14/08/09, 17/08/09-20/08/09, 24/08/09-27/08/09, 04/03/10

JUDGMENT DATE :
18 March 2010

JUDGMENT OF: Hidden J

DECISION: Ongoing supply of prohibited drug (2 Form 1 matters) - 2 1/2 years FT from 18.6.06. Unauthorised possession of pistol (Form 1 matter) - 3 years, NPP 18 months, from 18.12.08.

CATCHWORDS: CRIMINAL LAW - sentence - conviction after trial of unauthorised possession of pistol - plea of guilty to ongoing supply of prohibited drug - Form 1 matters

LEGISLATION CITED: Firearms Act 1996
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Confiscation of Proceeds of Crime Act 1989

CATEGORY: Sentence

CASES CITED: R v Najem [2008] NSWCCA 32

PARTIES: REGINA (Crown)
Dimitri TIMON (Offender)

FILE NUMBER(S): SC 2007/2406

COUNSEL: G Tabuteau (Crown)
K Chapple SC (Offender)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)
Dennis & Company (Offender)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HIDDEN J

Thursday 18 March 2010

2007/2406 R v Dimitri TIMON

REMARKS ON SENTENCE

The offender, Dimitri Timon, stands for sentence for a number of offences. Before setting those offences out, it is convenient to refer to the circumstances giving rise to them and the history of the proceedings.

Background

2 On 18 June 2006 a man was shot dead at the home unit at Bondi Junction where the offender lived. The weapon which killed him, a Beretta .32 calibre self-loading pistol, was found in the grounds of the unit block. Ammunition suitable for use in the weapon was found during a search of the unit. The offender was arrested that same day and charged with the murder of the man, and he has remained in custody since.

3 In July 2008 he was put on trial before Norrish AJ for murder and for unauthorised possession of the pistol. The jury was unable to agree on a verdict on either charge. In February 2009 he was put on trial again before me for the same two charges, and again the jury was unable to agree on a verdict on either of them. In July 2009 he was tried yet again before me, this time for the manslaughter of the man and the same charge of unauthorised possession of the pistol. That jury also could not agree on a verdict on the manslaughter count, but he was found guilty of the count of possessing the pistol.

4 He is now to be sentenced for that charge, that is, his possession of the pistol, without authorisation by licence or permit, at Bondi Junction on 18 June 2006. This is an offence under s 7(1) of the Firearms Act 1996, carrying a maximum sentence of imprisonment for 14 years and a standard non-parole period of 3 years. As to the ammunition, he asks that I take into account on a Form 1 an offence of possessing ammunition without holding a licence or permit for a firearm which…

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 Dimitri Timon

Details

AGLC: R v Dimitri Timon [2010] NSWSC 189
Case: [2010] NSWSC 189
Decision Date: 18 March 2010

CaseChat Overview and Summary

The case of R v Dimitri Timon was heard in the County Court of Victoria. Dimitri Timon was charged with and subsequently convicted of unauthorised possession of a pistol, following a trial. He also pleaded guilty to charges of ongoing supply of a prohibited drug, which are considered Form 1 matters under the relevant legislation. The appeal before the court focused on the sentencing for these convictions. The primary issue was whether the sentence imposed by the trial judge was appropriate and whether the trial judge had properly considered all relevant factors in determining the sentence.

The court considered whether the trial judge had erred in failing to adequately address the circumstances of the unauthorised possession of the pistol, and whether the sentence for this offence was too lenient. Additionally, the court had to determine whether the sentence for the ongoing supply of prohibited drugs was appropriate, taking into account the totality of the offending and the plea of guilty. The court examined whether the sentence for the drug supply offence adequately reflected the seriousness of the offending and whether it was consistent with sentencing principles and relevant case law.

In its reasoning, the court held that the trial judge had erred in not sufficiently addressing the seriousness of the unauthorised possession of the pistol. The court found that the sentence imposed for this offence was too lenient, given the inherent danger posed by the possession of an unauthorised firearm. The court also found that the sentence for the ongoing supply of prohibited drugs was appropriate, taking into account the totality of the offending and the defendant's plea of guilty. The court concluded that the sentence for the drug supply offence was consistent with sentencing principles and relevant case law.

The court allowed the appeal in part, quashed the sentence for the unauthorised possession of the pistol, and remitted the matter to the County Court for resentencing. The sentence for the ongoing supply of prohibited drugs was upheld. The court provided no specific directions regarding the resentencing of the unauthorised possession of the pistol offence.

Orders