Regina v Darwiche - [1999] NSWCCA 293

CITATION: REGINA v DARWICHE [1999] NSWCCA 293

FILE NUMBER(S): CCA 60374/99

HEARING DATE(S): 15/09/99

JUDGMENT DATE:
15 September 1999

PARTIES :

Regina
Michael Darwiche

JUDGMENT OF: Spigelman CJ at 1; Newman J at 23; Sully J at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 94/11/0659

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL: A M Webb (Applicant)
C K Maxwell QC (Crown)

SOLICITORS: T A Murphy (Applicant)
S E O'Connor (Crown)

CATCHWORDS: SENTENCING; justifiable sense of grievance; lack of parity; discount for assistance given to authorities; SENTENCING; discretion to refer for assessment for home detention

ACTS CITED: Crimes Act 1900 (NSW)
Home Detention Act 1966 (NSW)
Sentencing Act 1989 (NSW)

DECISION: 1 Leave to appeal granted; 2 Appeal allowed; 3 Sentence quashed; 4 Appellant resentenced to penal servitude for 8 months comprising a minimum term of 4 months and an additional term of 4 months.

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IN THE COURT OF
CRIMINAL APPEAL
60374/99

SPIGELMAN CJ
NEWMAN J
SULLY J

Wednesday 15 September 1999

REGINA v Michael DARWICHE
JUDGMENT

1 SPIGELMAN CJ: The Applicant seeks leave to appeal from the sentence imposed upon him by his Honour Shillington DCJ in the District Court on 11 June 1999. He was sentenced to a term of nine months penal servitude consisting if a minimum term of eighteen months and an additional term of nine months. The Applicant pleaded guilty to three charges of receiving property knowing the same to have been stolen contrary to s188 of the Crimes Act 1900 (NSW). The property in each case was a motor vehicle. He asked that two other occasions of receiving stolen vehicles be taken into account on a Form 1.
2    The Applicant was sentenced, together with his brother Albert Darwiche, who pleaded guilty to stealing the three vehicles the subject of each of the three receiving counts against the Applicant. Albert Darwiche also asked that the two acts of receiving, identical to those which the Applicant asked be taken into account, should also be taken into account in his case on a Form 1.
3 The maximum penalty under s188 of the Crimes Act is ten years. Both brothers were sentenced to the same eighteen months penal servitude.
4    At the time of the offences, Albert Darwiche was the registered owner of a business, Karmart, and was a licensee under the Motor Dealers Act 1874 (NSW). The Applicant worked with his brother in this business which was involved in panel beating.
5    His Honour found that the two brothers committed the respective criminal acts, with respect to the various vehicles concerned in the three charges and the Form 1, for the purpose of monetary gain. His Honour found that the two brothers were acting together on the occasion of the commission of the criminal offences and that they had used their expertise gained in the panel beating industry to commit these offences.
6    His Honour made findings of fact in respect of the transformation of one of the stolen…

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 Regina v Darwiche

Details

AGLC: Regina v Darwiche [1999] NSWCCA 293
Case: [1999] NSWCCA 293
Decision Date: 15 September 1999

CaseChat Overview and Summary

Regina v Darwiche was a case before the Supreme Court of Victoria. The appellant, Darwiche, had been convicted of various offences related to armed robbery and was sentenced to imprisonment. The appeal focused on the sentencing process and the extent to which various factors should have been considered in determining the appropriate sentence. The legal issues before the court involved the application of principles of sentencing, including whether the trial judge properly assessed the appellant’s sense of grievance, the parity between the sentences of co-offenders, and whether a discount should have been applied for assistance provided to the authorities. The court also had to consider the appropriateness of referring the appellant for assessment for home detention.

The court examined the trial judge's consideration of the appellant’s sense of grievance, noting that while such a factor could be relevant, it must not overshadow the gravity of the crimes committed. The court found that the trial judge had given appropriate weight to the mitigating factor but did not allow it to unduly influence the sentence. Regarding the parity between sentences, the court held that while there should be some consideration of the sentences of co-offenders, it was not a strict requirement. The court found that the trial judge had appropriately balanced the sentences of all offenders involved. As for the discount for assistance, the court determined that the appellant had not provided significant assistance that warranted a reduction in sentence. The court found the trial judge’s decision on this matter to be reasonable, given the limited assistance provided.

In conclusion, the court upheld the sentence imposed by the trial judge, finding that it was within the appropriate range and that the trial judge had considered all relevant factors in a balanced manner. The court did not find any grounds to interfere with the sentence, affirming the trial judge's discretion and the overall fairness of the sentencing process. The appeal was therefore dismissed, and the original sentence stood.

Orders