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District Court 8 May 2020

R v Dibitetto

[2020] NSWDC 290

Assault & violenceFraud & dishonestyTheft & property
CRIME SENTENCE AGGRAVATED ROBBERY AND INFLICT ABH BREAK ENTER AND STEAL LARCENY DISPOSE OF STOLEN PROPERTY

Citation: R v Dibitetto [2020] NSWDC 290
Court: District Court of New South Wales
Date: 8 May 2020
Judge: Bourke SC DCJ

Background

The offender appeared for sentencing on eight offences committed between September and December 2018, with a further five matters taken into account on Form 1 documents (a procedural mechanism allowing related admitted offences to be considered in setting the overall sentence without separate conviction). The offences ranged in seriousness from aggravated robbery through to disposing of stolen property.

The most serious offence involved the offender following a Chinese international student from a train at Green Square Station to his Waterloo unit block, punching him repeatedly in the face, and stealing his bag and its contents. The following day, the offender pawned the victim's Gucci bag at a George Street pawnbroker. Subsequent offences included three break, enter and steal offences targeting underground car parks (stealing bicycles and tools), a larceny from a locked utility tray, the disposal of stolen tools at a Cash Converters store, and a break-in at a bicycle shop storage unit in Ultimo.

DNA evidence, CCTV footage, and records from pawnbrokers and second-hand dealers linked the offender to all offences. Notably, CCTV captured him spray-painting over five security cameras at a Brookvale unit complex before stealing property worth thousands of dollars.

  • What indicative sentences were appropriate for each of the eight individual offences, taking into account their objective seriousness and any Form 1 matters?
  • Whether special circumstances existed to justify departing from the standard ratio between head sentence and non-parole period under the Crimes (Sentencing Procedure) Act 1999.
  • What aggregate sentence was appropriate having regard to the totality principle, so as to avoid a crushing outcome.

Decision

Bourke SC DCJ sentenced the offender on each count individually before arriving at an aggregate sentence. The aggravated robbery with actual bodily harm was treated as the most serious offence, attracting an indicative sentence of three years and eight months. The break, enter and steal offences each drew indicative sentences ranging from two years and eight months to two years and ten months, reflecting the premeditated and systematic nature of the offending, including deliberate steps to disable security cameras.

The indicative sentences for larceny (one year and six months), disposal of stolen property (one year), and the remaining offences were set at lower levels commensurate with their relative seriousness. Throughout the sentencing remarks, the court factored in the admitted Form 1 matters alongside the principal offence for each relevant count.

The court found special circumstances justifying a longer-than-usual ratio of parole supervision to custody. Two factors supported this finding: the offender's prior problems with drugs and gambling, which pointed to the need for extended post-release supervision; and the additional hardship caused by COVID-19 restrictions that had curtailed family visits during his time in custody.

Applying the totality principle, the court imposed an aggregate head sentence of five years and six months, with a non-parole period of three years and eight months, both commencing 5 June 2019. The court expressly acknowledged that the aggregate represented only a fraction of the sum of the indicative sentences, but considered that outcome consistent with established principles against imposing a crushing sentence.

Orders Made

  • Aggregate head sentence of five years and six months, commencing 5 June 2019, expiring 4 December 2024.
  • Non-parole period of three years and eight months, commencing 5 June 2019, expiring 4 February 2023.
  • Special circumstances found, varying the standard ratio between head sentence and non-parole period.
  • Indicative sentences imposed for each of the eight offences (ranging from one year to three years and eight months).
  • A number of remaining charges withdrawn by the Crown following conviction on the eight principal offences.

Key Takeaways

  • The District Court applied the totality principle to produce an aggregate sentence substantially below the arithmetic sum of the individual indicative sentences, reflecting the accepted practice of avoiding a disproportionately crushing result where an offender faces multiple counts.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established on two independent grounds: the offender's history of drug and gambling dependency (supporting the need for extended parole supervision) and the additional hardship of COVID-19 restrictions on family contact during custody.
  • Form 1 procedures allowed the court to take admitted related offences into account when setting each indicative sentence, without recording additional convictions for those matters.
  • DNA evidence recovered from discarded cigarette packets and water bottles, combined with CCTV footage, formed the evidentiary backbone of the prosecution across multiple offences, illustrating how forensic and surveillance evidence can connect a series of geographically dispersed crimes.
  • Deliberate interference with CCTV cameras prior to committing the Brookvale offences was treated as indicative of premeditation and contributed to the objective seriousness assessed for those counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Pawnbrokers and Second-hand Dealers Act 1996 (NSW), s 15(4)

Cases:
- R v Black [2001] NSWCCA 41
- R v Henry (1999) 46 NSWLR 346