Regina v Diab - [2005] NSWCCA 341

CITATION:
Regina v Diab [2005] NSWCCA 341

HEARING DATE(S): 6 September 2005

JUDGMENT DATE:

28 September 2005

JUDGMENT OF:
at 1; Grove J at 2; Smart AJ at 3

DECISION:
Leave to appeal granted. Appeal against sentence dismissed.

CATCHWORDS:
Multiple dishonesty offences - errors in application of s 21A of Crimes (Sentencing Procedure) Act - insufficient allowance for special circumstances - despite errors no lesser sentences warranted in law

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999.
Criminal Appeal Act 1912.

CASES CITED:
R v di Gregorio [2004] NSWCCA 9
R v Street [2005] NSWCCA 139
R v Suaalii [2005] NSWCCA 206
R v Tadrosse [2005] NSWCCA 145
R v Tobar [2004] NSWCCA 391
R v Way (2004) 60 NSWLR 168

PARTIES:
Regina v John Diab

FILE NUMBER(S):
CCA 2005/1043

COUNSEL:
(A) G Bashir
(C) J Bennett

SOLICITORS:
(A) S E O'Connor
(C) S Kavanagh

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/0168

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

2005/1043 CCAP

MCCLELLAN CJ AT CL

GROVE J

SMART AJ

Wednesday, 28 September 2005

Regina v John DIAB

1. McCLELLAN CJ AT CL: I agree with Smart AJ

2. GROVE J: I agree with Smart AJ.

3. SMART AJ: John Diab seeks leave to appeal against the following sentences in respect of these offences:

Count Date of
offence Offence Sentence of Imprisonment

1 29/10/03 Break and enter
with intent to steal Fixed term of 1 year 6 months from 17/5/04 to 16/11/05

2 10/12/03 Enter building
with intent to steal Fixed term of 1 year from 17/11/04 to 16/11/05

3 10/12/03 Larceny Fixed term of 6 months from 17/11/04 to 16/5/05

4 4/4/04 Break and enter
with with intent to steal taking into account one count of larceny Non-parole period of 1 year 9 months from 17/3/05 to 16/12/06 Balance of term of 12 months from 17/12/06 to 16/12/07

4. The applicant was in custody, bail refused from 15 Apr 04 to 17 Sep 04 and from 20 Oct 04 onwards. With the concurrence of counsel the judge commenced the initial sentence from 17 May 04 to reflect the period spent in pre-sentence custody. The applicant was sentenced in total to fixed terms and a non-parole period of 2 years seven months and a total sentence of 3 years seven months.

5. About 9.50 pm on 29 October the applicant entered the premises of AV Jennings, builders, at Baulkham Hills. A lady who was working back heard some noise and went to investigate. He claimed that he was a cleaner `and was going to get the vacuum cleaner, walked away and left the building. Later, it was discovered that three panels had been removed from the ceiling and the door had been jemmied. Blood was located at the scene and the DNA extracted from the blood and was positively identified as that of the applicant.

6. On the evening of 10 December 2003 the applicant entered the premises of Oracle Australia at North Ryde and stole 4 laptop…

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 Diab

Details

AGLC: Regina v Diab [2005] NSWCCA 341
Case: [2005] NSWCCA 341
Decision Date: 28 September 2005

CaseChat Overview and Summary

The case of Regina v Diab involved the defendant, Diab, who was charged with multiple offences of dishonesty. The dispute centred on the court's application of section 21A of the Crimes (Sentencing Procedure) Act when determining his sentence. The matter was heard in the Court of Criminal Appeal in New South Wales. The primary legal issue was whether the trial judge's errors in applying section 21A resulted in a sentence that was manifestly excessive or inadequate, warranting a reduction of the sentence under the Act.

The court examined whether the trial judge had sufficiently allowed for the special circumstances of the case when applying section 21A. It was argued that the trial judge failed to adequately consider the special circumstances, which included the defendant's background and the nature of the offences. Despite these errors, the court needed to determine whether they were so significant as to warrant a reduction in sentence under the Act. The court found that while there were indeed errors in the application of section 21A, these did not result in a sentence that was manifestly excessive or inadequate. Consequently, the court held that no lesser sentence was warranted in law.

The Court of Criminal Appeal dismissed the appeal and affirmed the original sentence imposed by the trial judge. The reasoning was that despite the errors in applying section 21A, the overall sentence was not so excessive or inadequate as to require a reduction. The court emphasised the importance of correctly applying the relevant statutory provisions but found that, in this instance, the errors did not reach the threshold of necessitating a new sentence. The appeal was therefore dismissed, and the original sentence remained in place.

Orders