R v Dimoski

[2004] NSWCCA 309

CITATION:	R v Dimoski [2004] NSWCCA 309 revised - 9/09/2004
HEARING DATE(S):	01/09/04
JUDGMENT DATE:	1 September 2004
JUDGMENT OF:	Grove J at 22; Simpson J at 23; Shaw J at 1
DECISION:	1. Leave to appeal against the sentence is granted; 2. That appeal is allowed; 3. The sentence imposed in the District Court is quashed; 4. The applicant is sentenced to imprisonment consisting of a non-parole period of 18 months dating from 24 February 2003 and expiring on 23 August 2004 and a head sentence of the three years commencing on 24 February 2003; 5. The applicant is to be released to parole forthwith.
CATCHWORDS:	Application for leave to appeal against severity of sentence - Aggravated armed robbery - Early plea of guilty - Assistance to the authorities in order to secure the charges and convictions against co-offenders - Sentence imposed did not reflect discount for assistance to authorities.
LEGISLATION CITED:	Crimes Act 1900 s97(2) Crmes (Sentencing Procedure) Act 1999 s23
CASES CITED:	R v Henry (1999) 46 NSWLR 346 R v MacDonnell (2002) 128 A Crim R 44
PARTIES :	Regina Trajce Dimoski
FILE NUMBER(S):	CCA 2004/1779 CCAP (60217/04)
COUNSEL:	P Winch (Applicant) E Wilkins (Respondent)
SOLICITORS:	S O'Connor (Applicant) S Kavanagh (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3210
LOWER COURT JUDICIAL OFFICER :	Maguire DCJ

- 6 -

2004/1779

Grove J
Simpson J
Shaw J

Wednesday 1 September 2004

REGINA v TRAJCE DIMOSKI

Judgment

1 SHAW J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court of NSW on 14 November 2003.

2 The applicant pleaded guilty to three counts of offending against s 97(2) Crimes Act 1900 (NSW) of aggravated armed robbery and two further counts pursuant to s 97(2) of that Act were taken into consideration on sentence by way of a Form 1, all of these offences relate to the same house on the same night.

3 The sentence imposed by the sentencing judge was imprisonment for four years with a non-parole period of two years dating from 24 February 2003.

4 In February 2003 the applicant drove to the house of one of the co-offenders at about 7.00 pm. Two hours later he drove the car to an address in Chester Hill. He and a co-offender entered a house, with the co-offender armed with a replica pistol and the applicant with a “wooden imitation knife.”

5 Apparently the applicant thought that the occupants of the house would be young drug dealers but in fact they were people entertaining their friends in the dining room, and there was also a seven year old boy in the house. The two co-offenders demanded money, they took a handbag, a mobile phone, and a video recorder, left the house and drove away. The number plate of the car driven by the applicant was recorded and enabled the police to arrest him. It should be recorded that, following inquiries from the police it was the applicant who phoned the police, who then came to his residence and made the arrest.

6 At an early stage the applicant fully admitted his involvement and gave details in relation to his co-offenders. He later signed undertakings to give evidence against them and gave evidence on oath at sentence to the same effect as the undertakings. It is said by counsel for the applicant, and this seems to be correct, that the co-offenders were apprehended because of the information provided by the applicant and eventually entered pleas of guilty.

7 The applicant remained in custody from the time of his arrest on 24 February 2003.

8 It is the established law in this jurisdiction that the applicant was entitled to a significant discount first, by reason of his early plea of guilty usually twenty percent and secondly by his valuable and arguably necessary assistance to the authorities in order to secure the charges and convictions against co-offenders.

9 That the assistance given by the applicant to the authorities was of substance and useful in the administration of criminal justice is demonstrated by the finding of the sentencing judge to this effect:

The offender has given a written undertaking to the Crown to give evidence against the co-offenders who are listed for trial at this court next week. It is clear that without his co-operation they would not have been identified.

10 It is also fair to say that his Honour expressly said that he had taken into account in determining the penalty the plea of guilty and the assistance to the authorities in relation to the two co-offenders, although there was no quantification as to the way in which assistance to the authorities was taken into account in determining the quantum of imprisonment.

11 Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides: the court is allowed to impose a lesser penalty than it otherwise would impose on an offender:

Having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence

12 A number of other factors are specified in s 23(2) which include (in broad summary) factors governing discretion such as the effect of the offence on the victim, the significance and usefulness of the offender’s assistance to the authorities, the truthfulness, completeness and reliability of the information or evidence provided, the nature and extent of the offender’s assistance or promised assistance, the timeliness of the assistance or undertaking to assist, any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, whether the offender will suffer harsher custodial conditions as a consequence of the assistance, any injury suffered by the offender or his/her family or any danger or risk of injury to the offender or the family resulting from the assistance, whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence and the likelihood that the offender will commit further offences after release. Section 23(3) provides:

A lesser penalty that is imposed under the section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

13 The applicant submits that the sentence imposed did not reflect the discount of the appropriate level (which can include a discount of up to fifty percent for assistance to the authorities), and indeed no significant discount is apparent in the sentence imposed. It is possible that the discount was applied only to the non-parole period and, if so, this would be an error: R v MacDonnell (2002) 128 A Crim R 44. Although because the way in which the discount was applied was not fully articulated, it is difficult to ascertain whether any such error was made.

14 The substantial point raised by the applicant focuses upon an observation made by the sentencing judge to the following effect:

I have looked carefully at the decision of the Court of Criminal Appeal in R v Henry . I regard the subjective facts that I have found above as justifying a measure of departure from the figures suggested by their Honours.

15 R v Henry (1999) 46 NSWLR 346 was a “guideline “judgment. Plainly, the judicially ascertained guidelines are intended to do just that, to guide the sentencing judges not to dictate a particular outcome without consideration of the facts and circumstances. Hence, guideline judgments formulated by appellate courts are qualitatively different from mandatory legislative requirements or grid sentencing systems which dictate in relatively absolute terms a particular outcome. As R v Henry makes expressly clear a guideline judgment does not lay down a requirement or anything in the nature of a rule and so that the failure to sentence in accordance with the guideline is not, in itself, a ground of appeal. Nevertheless, the Court of Criminal Appeal held in that case that where a guideline is not to be applied then the reasons should be articulated by the sentencing judge. The legislative intention is to achieve reasonable and acceptable levels of sentencing consistency rather than rigid absolutism.

16 It seems to me that on a fair reading of R v Henry the offence of armed robbery in the circumstances of the current trial – involving a young offender with no or little criminal history, with a weapon like a knife, a limited degree of planning, limited if any actual violence but a real threat of it, a victim involved who is in a vulnerable position, a small amount taken and a plea of guilty then the sentence should fall ordinarily within the range of four to five years imprisonment. This was regarded by the Court of Criminal Appeal as a “range” rather than a fixed starting point given the variability of the factors which might rationally be involved in the sentencing process.

17 Here, we do have imposed upon the applicant a sentence which was, as I read R v Henry, within the range outlined in that case. That is, the head sentence is imprisonment for four years.

18 Yet, the sentencing judge had, as I have found, explicitly indicated that there was a justification for “a measure” of departure from the figures suggested in the guideline judgment.

19 His Honour found a number mitigating factors, despite the obvious seriousness of the offence and the need for adequate punishment. These were: the level of the criminality was “at the bottom of the range for such offences”; the replica handgun was carried by the co-accused, Mr Brooker; without the co-operation of the applicant, the co-offenders “would not have been identified”; the applicant is “well on the way to complete rehabilitation from his drug problem”; the applicant at age twenty-six had no prior criminal record; the applicant was in protective custody and showed contrition. The applicant gave evidence that he was trying to make amends. Evidence before this court by the police demonstrates that, absent the co-operation of the applicant, the co-offenders would not have been arrested and the victims’ property not recovered.

20 The trial judge in a balanced way acknowledged the seriousness of the offence, but emphasised the assistance to the authorities in relation to the co-offenders, that the applicant was well on the way to complete rehabilitation from his drug problem, that he would benefit from an extended period of supervision while on parole and regarded that as a “special circumstance” justifying a departure from the usual ratio between the head sentence and the non-parole period. The trial judge also acknowledged that it was relevant that the applicant had been in custody since the 24th of February 2003 and in protective custody since 30 April and was expected to remain in that situation. Again, fairly, the trial judge used his extensive knowledge of the criminal justice system to find that protective custody meant that it was “impossible” to undertake certain courses for which the applicant had applied and which would assist in his rehabilitation. However, the bottom line is that the trial judge thought he should depart, in an ameliorative way favourable to the applicant from the guideline range set out in R v Henry, and yet does not appear to have done so. His Honour carefully identified the factors which would justify such a departure.

21 In my view, therefore, in this context the sentence imposed was excessive and there was an error in failing to allow a sufficient discount on account of the applicant’s assistance to the police and to take adequate account of a miscellany of other subjective factors. It is in these circumstances that I would favour the re-sentencing of the applicant and make the following orders:

1 Leave to be appeal be granted.

2 The appeal be upheld.

3 The sentence determined at first instance be quashed.

4 The applicant should be sentenced to a period of three years imprisonment, with a non-parole period of eighteen months commencing from 24 February 2003 expiring on 23 August 2004. Parole is to be supervised.

5 It follows that the applicant should be released from custody forthwith.

22 GROVE J: The formal orders of the court are as follows:

Leave to appeal against the sentence is granted.

That appeal is allowed.

The sentence imposed in the District Court is quashed.

The applicant is sentenced to imprisonment consisting of a non-parole period of 18 months dating from 24 February 2003 and expiring on 23 August 2004 and a head sentence of the three years commencing on 24 February 2003.

The applicant is to be released to parole forthwith.

23 SIMPSON J: I agree with Shaw J.

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Last Modified: 09/09/2004