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Court of Criminal Appeal 17 October 2016

Dimian v R

[2016] NSWCCA 223

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SEXUAL ASSAULT PAROLE PERIOD OR WHOLE SENTENCE SENTENCE

Citation: Dimian v R [2016] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 17 October 2016
Judges: Hoeben CJ at CL, Hall J, Davies J (reasons)

Background

The appellant pleaded guilty in the Parramatta District Court to two serious offences arising from a violent sexual assault committed in April 1993: detaining a person for advantage while causing substantial injury, and aggravated sexual assault involving the malicious infliction of grievous bodily harm. A further aggravated sexual assault was taken into account on a Form 1. Each offence carried a maximum penalty of 20 years imprisonment.

The appellant's identity as the offender was not established until 2013, some 20 years after the offences, when a "cold case" DNA notification linked him to samples taken from the victim. By that time, the appellant had already been in custody for many years serving sentences for a series of similar sexual offences committed after the 1993 events. The index offences were the first known sexual offences he committed.

At sentencing in April 2015, the District Court imposed an aggregate sentence of nine years with a non-parole period of six years, commencing 17 February 2014. The appellant sought leave to appeal, arguing that the aggregate sentence exceeded the sum of the indicative sentences and that insufficient weight had been given to the totality principle and other factors.

  • Whether the aggregate sentence impermissibly exceeded the combined total of the indicative sentences specified by the sentencing judge
  • Whether the indicative sentences were intended to represent non-parole periods or the totality of each individual sentence
  • How the totality principle applied given the appellant was already serving a lengthy prior sentence for similar offending
  • Whether the 20-year delay between the offences and prosecution was a mitigating factor in sentencing
  • Whether the progress towards rehabilitation was adequately reflected in the sentence

Decision

The Court identified a technical but significant error in the structure of the sentencing below. The indicative sentences nominated by the sentencing judge (two years and five years and six months) totalled seven years and six months, yet the aggregate sentence imposed was nine years. The Court found that if the indicative sentences represented the full terms (as opposed to just the non-parole periods), the aggregate exceeded them impermissibly. This error, combined with the totality issue, justified intervention.

The totality principle required the Court to consider the aggregate sentencing burden on the appellant when account was taken of his existing sentences. The appellant had been in continuous custody for more than 13 years at the time of sentencing and was serving sentences for persistent similar offending. A proper application of totality required that the commencement date be adjusted to run from an earlier point and that the overall burden not be crushing when viewed as a whole.

On the delay issue, Davies J declined to treat the 20-year gap between the offences and prosecution as significant mitigation. There was no evidence of prosecutorial delay or fault. The appellant had continued to reoffend in a precisely similar manner throughout the intervening period and had the opportunity to come forward about these offences at any time. In those circumstances, the delay carried little mitigating weight.

The Court re-sentenced the appellant, reducing the non-parole period to four years and six months commencing 17 February 2013 with an equal additional term, giving a total sentence of nine years expiring 16 February 2022. Davies J emphasised that the reduction did not reflect an inadequate view of the gravity of the offending; it flowed solely from a correct application of totality. The resulting non-parole period represented approximately 76 percent of the total sentence, allowing a meaningful period on parole to assist rehabilitation and reintegration.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 17 April 2015 quashed
  • In lieu, the appellant sentenced to an aggregate sentence of four years and six months commencing 17 February 2013 and expiring 16 August 2017, with an additional term of four years and six months expiring 16 February 2022

Key Takeaways

  • An aggregate sentence that exceeds the combined total of the indicative sentences specified by the sentencing judge may constitute a legal error warranting appellate intervention.
  • A correct application of the totality principle requires a sentencing court to stand back and assess the overall sentencing burden where an offender is already serving substantial custodial terms for related offending.
  • Prosecutorial delay does not automatically constitute a mitigating factor. Where the delay is attributable to investigative circumstances rather than fault on the part of authorities, and where the offender continued similar offending throughout the intervening period, delay carries limited mitigating weight.
  • Re-sentencing on totality grounds does not necessarily reflect a diminished assessment of objective seriousness. The Court of Criminal Appeal expressly noted that the reduced sentence resulted purely from totality considerations and was not otherwise an adequate sentence for what it characterised as very serious offending.
  • A non-parole period representing approximately 76 percent of the total term was accepted as appropriate to preserve a meaningful period on parole for rehabilitation and supervised community reintegration.

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Humphries v R; Ponfield v R [2016] NSWCCA 86
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- McIntosh v R [2015] NSWCCA 184
- Mill v The Queen (1988) 166 CLR 59
- R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Todd [1982] 2 NSWLR 517