CATCHWORDS: CRIMINAL LAW appeal against severity of sentence top of the range criminality special circumstances non-parole period robbery in company causing grievous bodily harm
DECISION: Leave to appeal granted. Appeal dismissed.
JUDGMENT:
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IN THE COURT OF CRIMINAL APPEAL
60071/04
SPIGELMAN CJ HULME J ADAMS J
Wednesday 19 May 2004
REGINA v Dion Imila FIDOW
Judgment
SPIGELMAN CJ: This is an appeal against the alleged severity of a sentence imposed by his Honour Judge Patten in the District Court on a charge of robbery in company causing grievous bodily harm under s98 of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. In sentencing the applicant his Honour took into account a further seven offences on a Form 1. Those offences were offences of dishonesty, rather than violence, in connection with various loan and credit applications.
His Honour sentenced the applicant to 11 years imprisonment with a non-parole period of 8 years. The sentence commenced on the date on which the applicant was arrested.
The submissions, made on behalf of the applicant, accepted his Honour’s characterisation of the offences, as being towards the top of the range for criminality for an offence of this character. The applicant did not contend that the head sentence of 11 years was in error. The appeal relates to the non-parole period.
His Honour stated the facts in the following passage of his judgment. These findings are not in issue.
“The offence on the indictment was committed at about 1.00pm on Monday 3 September 2001 when the victim, Mr Gurgis, left the premises of his Volume Plus Service Station at Long Jetty driving a red Suzuki four wheel drive. He had with him a bank bag containing an amount of $11,855, which represented the weekend takings.
As it appears, as part of a conspiracy to rob Mr Gurgis involving Mr El-Andouri and at least one other person, unfortunately so far unidentified, Mr Gurgis’ car was deliberately rammed by the robbers. The offence evidenced a considerable amount of pre-planning. It is obvious that, in part, this was due to the prisoner’s knowledge, through his sister-in-law who had been an employee of Mr Gurgis, of the procedures adopted at this service station by Mr Gurgis for the banking of money. It is also obvious from the material before me that Mr Gurgis had, in effect, been staked out and his movements put under observation by the prisoner and his co-offenders.
After the deliberate collision with…
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
AGLC
R v Fidow [2004] NSWCCA 172
Case
[2004] NSWCCA 172
Decision Date
CaseChat Overview and Summary
The case of R v Fidow involved an appeal against the severity of a sentence imposed for a serious crime. Fidow was convicted for committing a robbery in company that resulted in grievous bodily harm. The court was tasked with determining whether the sentence handed down by the trial judge was appropriate given the circumstances of the case. This included whether the sentence reflected the top-tier severity of the crime and whether any special circumstances warranted a more lenient sentence.
The primary legal issue before the court was the determination of the appropriate non-parole period for Fidow's sentence. The appeal hinged on whether the trial judge had correctly assessed the seriousness of the crime and the factors that should influence the length of the non-parole period. The court also had to consider whether the trial judge had adequately taken into account the special circumstances surrounding the offence and whether these circumstances justified a reduction in the severity of the sentence.
In reviewing the case, the court found that the trial judge had appropriately recognised the severity of Fidow's crime, which was characterised as being at the top end of the spectrum for such offences. The court noted that the trial judge had correctly identified the need for a substantial non-parole period to adequately protect the community and deter similar future crimes. The court also determined that the special circumstances presented in the case, while noted, did not warrant a reduction in the severity of the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.
The final orders of the court affirmed the sentence imposed by the trial judge, with the non-parole period remaining unchanged. The court confirmed that the sentence was commensurate with the gravity of the offence and that the special circumstances did not sufficiently mitigate the need for a lengthy non-parole period.