R v Dukino; R v Moshref - [2003] NSWCCA 379

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Dukino; Regina v Moshref [2003] NSWCCA 379

FILE NUMBER(S):
Dukino: 60357/03;
Moshref: 60311/03

HEARING DATE(S): 9 December 2003

JUDGMENT DATE: 12/12/2003

PARTIES:
Regina
Alan Dukino
Adrian Moshref

JUDGMENT OF: Barr J Newman AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): Dukino: 02/21/0273;
Moshref: 02/21/0331

LOWER COURT JUDICIAL OFFICER: Nield J

COUNSEL:
Dukino:
Applicant - D Dalton
Respondent - P Miller
Moshref:
Applicant - M Buscombe
Respondent - P Miller

SOLICITORS:
Dukino:
Applicant - N Velcic
Respondent - V Boulous
Moshref:
Applicant - M Marx
Respondent - V Boulous

CATCHWORDS:
Criminal Law - appeal against severity of sentence - parity of sentence - totality - use of criminal record.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave granted to appeal but appeals dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60311/03, 60357/03
Barr J
Newman AJ
12 DECEMBER 2003

Regina v Adrian Moshref

Regina v Alan Dukino

Judgment

BARR J: I agree with the judgement of Newman AJ.
NEWMAN AJ: These are applications for leave to appeal brought by one Adrian Moshref and one Alan Dukino against sentences imposed upon them by His Honour Judge Nield in the District Court on the 4th of March 2003.
Both pleaded guilty to offences arising from the same set of circumstances, however the form of indictments presented against them were different.
In the case of Moshref he was charged with three counts of robbery in company. Two of those counts of robbery in company arose from events which occurred at Guildford Railway Station on the 22nd of February 2002 and the third count arose from events which occurred at the self same Railway Station on the 26th of February of the same year.
In the case of Dukino the indictment presented against him contained but one count. That count of robbery in company related to the events which occurred on the 26th of February 2002 at Guildford Railway Station which constituted the 3rd count in the indictment presented against Moshref. The events which had occurred at Guildford Railway Station on the 22nd of February 2002 constituted the crimes contained in a Form 1 accompanying the indictment brought against him.
In the event both men were sentenced to the self same terms of imprisonment. In the case of Moshref His Honour imposed in relation to the first two counts in the indictment a term of imprisonment for a fixed term of one year and nine months commencing on the 23rd of September 2002 and expiring on the 26th of June 2004. As to count 3 His Honour imposed a term of imprisonment for three years and three months commencing on the 23rd of June 2004 and expiring on the 22nd of September 2007 with a non-parole period of one year commencing on the 23rd of June 2004 and expiring on the 22nd of June 2005. In Moshref’s case this meant that His Honour in fact…

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.

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Details

Case: [2003] NSWCCA 379
Decision Date: 12 December 2003

CaseChat Overview and Summary

In the case of R v Dukino; R v Moshref, the respondents appealed against the severity of their sentences, arguing that their sentences were disproportionate to the crimes committed. The appeal was heard by the Court of Appeal, which had to determine whether the trial judge erred in the application of sentencing principles. The central issues were the appropriateness of the sentences in light of the crimes committed, the principle of parity between co-offenders, and the consideration of criminal history.

The court examined the nature and circumstances of the offences, the roles played by each respondent, and the sentencing principles applicable under the Crimes Act. It considered whether the trial judge correctly balanced the aggravating and mitigating factors and whether the sentences were within the range of reasonable outcomes. The principle of parity was discussed, focusing on whether the sentences were commensurate with the roles and culpability of the respondents. The use of criminal history in sentencing was also a key consideration, with the court assessing whether it was appropriately weighed and whether it contributed to an unjust outcome.

The Court of Appeal found that the trial judge did not err in the application of sentencing principles. The court upheld the sentences, concluding that they were proportionate to the crimes and that the trial judge had appropriately considered the principles of parity and the totality principle. The court held that the sentences reflected the severity of the crimes and the respondents' roles, and that the criminal history was correctly considered. The appeal was dismissed, and the original sentences were affirmed.

Orders