R v Dimitrov - [2018] ACTSC 367

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Dimitrov
Citation:	[2018] ACTSC 367
Hearing Dates:	23 August, 18, 21 September, 13 November 2018
DecisionDate:	14 November 2018
Before:	Mossop J
Decision:	See [31]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – two counts of aggravated burglary in company and with a hammer – assault occasioning actual bodily harm – trespass – having an offensive weapon with intent to use the weapon to commit an offence involving actual or threatened violence – resisting a public official – significant criminal history – guilty pleas – youth relative to co-offender taken into account – difficult background – significant brain injury – limited education – history of illicit substance abuse – custodial sentence served by way of intensive correction
Legislation Cited:	Crimes Act 1900 (ACT), ss 24, 381(1) Criminal Code2002 (ACT), ss 312, 361(1) Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11
Parties:	The Queen (Crown) Alexander Dimitrov (Offender)
Representation:	Counsel M Fernandez (Crown) J Lawton (23 August, 18, 21 September 2018) and S Howell (13 November 2018) (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (23 August, 18, 21 September 2018) and McKenna Taylor (13 November 2018) (Offender)
File Numbers:	SCC 181 of 2018 SCC 182 of 2018

MOSSOP J:

Introduction

The offender has pleaded guilty to two counts of aggravated burglary contrary to s 312 of the Criminal Code2002 (ACT). The maximum penalty is 20 years imprisonment or a fine of $300,000 or both. He has also pleaded guilty to assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is five years imprisonment.

The offender has also pleaded guilty to a number of summary offences which have been transferred as related charges, they are:

(a)Trespass contrary to s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth) for which the maximum penalty is a fine of $1500.
(b)Having an offensive weapon in circumstances which indicated intent to use the weapon to commit an offence involving actual or threatened violence contrary to s 381(1) of the Crimes Act the maximum penalty for which is one year imprisonment, a fine of $2000 or both.
(c)Resisting a public official contrary to s 361(1) of the Criminal Code. The maximum penalty is two years imprisonment, a fine of $30,000 or both.

Pleas of guilty to the indictable offences were entered in the Magistrates Court on the seventh mention. I treat these pleas as early ones.

Facts

At about 4:30am on 5 March 2018, the offender and Nathan Reid entered the Gungahlin Marketplace shopping centre (‘the marketplace’) and broke into two shops. They were Creamery and Co Coffee Shop and the Boost Juice shop. Both shops had considerable damage to their security screen doors. The two cash registers in the Boost Juice shop had been interfered with. Police were called and attended the scene.…

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 Dimitrov

Details

AGLC: R v Dimitrov [2018] ACTSC 367
Case: [2018] ACTSC 367
Decision Date: 14 November 2018

CaseChat Overview and Summary

In the matter of the Regina versus Dimitrov, the respondent faced a series of charges before the Supreme Court of Victoria. The charges included two counts of aggravated burglary in company and with a hammer, assault occasioning actual bodily harm, trespass, having an offensive weapon with intent to use the weapon to commit an offence involving actual or threatened violence, and resisting a public official. The respondent entered guilty pleas for all charges. The court was tasked with determining an appropriate sentence that balanced the severity of the crimes with the respondent's personal circumstances, including his young age relative to his co-offender, a difficult background, significant brain injury, limited education, and a history of illicit substance abuse.

The primary legal issues before the court were the appropriate sentencing principles to apply, the gravity of the offences, and the respondent's mitigating factors. The court had to consider the totality of the respondent's criminal history, his age at the time of the offences, his personal circumstances, and the principles of proportionality and deterrence. In assessing the appropriate sentence, the court considered whether an intensive correction order would serve as a suitable alternative to imprisonment, given the respondent's personal circumstances and the need for rehabilitation.

The Supreme Court of Victoria, after weighing the severity of the offences against the respondent's mitigating factors, determined that an intensive correction order was appropriate. The court recognised the respondent's significant criminal history and the gravity of the offences but also acknowledged his difficult background and the need for rehabilitation. The court considered that an intensive correction order would provide the necessary structure and support to address the respondent's substance abuse issues and reduce the likelihood of reoffending. The court also noted that the respondent's age at the time of the offences and his youth relative to his co-offender warranted consideration in the sentencing process.

The court ordered that the respondent be sentenced to an intensive correction order for the offences committed. The specific terms and conditions of the order were not detailed in the provided text, but the overall decision reflected the court's consideration of the respondent's personal circumstances and the need for a rehabilitative approach to sentencing.

Orders

Orders of the court

See [31]

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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