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Court of Criminal Appeal 1 September 2004

R v Dimoski [2004] NSWCCA 309 revised - 9

[2004] NSWCCA 309

Assault & violenceTheft & propertyFirearms & weapons
AGGRAVATED ARMED ROBBERY EARLY PLEA OF GUILTY OFFENDERS

Citation: R v Dimoski [2004] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 1 September 2004
Judge(s): Shaw J (primary reasons), Grove J, Simpson J

Background

The applicant pleaded guilty in the District Court to three counts of aggravated armed robbery under s 97(2) of the Crimes Act 1900 (NSW), with two further counts taken into account on a Form 1. The offences arose from a single incident in February 2003, when the applicant drove a co-offender to a residential address in Chester Hill, where the pair entered the home of unsuspecting occupants, threatened them with a replica pistol and a wooden imitation knife, and took a handbag, mobile phone, and video recorder. A seven-year-old child was present in the house.

Following his arrest (which occurred after police traced his number plate and the applicant himself contacted police), the applicant fully admitted his involvement at an early stage. He provided detailed information about his co-offenders, signed undertakings to give evidence against them, and gave sworn evidence at their sentencing. The sentencing judge expressly found that the co-offenders would not have been identified without the applicant's cooperation, and both ultimately pleaded guilty.

The District Court sentenced the applicant to four years imprisonment with a two-year non-parole period, commencing 24 February 2003. The applicant sought leave to appeal, contending that the sentence did not adequately reflect discounts for his early guilty plea and substantial assistance to authorities.

  • Whether the sentence imposed by the District Court adequately reflected the applicable discount for an early plea of guilty.
  • Whether the sentence adequately reflected the discount available under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for substantial assistance provided to law enforcement authorities.
  • Whether the sentencing judge erred by failing to sufficiently depart from the guideline range in R v Henry in light of the applicant's subjective circumstances, despite identifying factors that would have justified such a departure.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentence was excessive. Shaw J concluded that the sentencing judge had acknowledged the relevant mitigating factors, including the early plea, substantial assistance to police, personal rehabilitation from drug dependency, and the hardship of protective custody, but had not adequately translated those findings into a reduced penalty.

On the assistance discount, the court noted that the applicable discount under s 23 can reach up to fifty percent, and that no significant reduction was apparent on the face of the sentence. The court also observed, citing R v MacDonnell, that it would be an error to apply a discount only to the non-parole period rather than to the overall sentence, though the lack of articulation in the original sentencing reasons made it difficult to determine precisely where the error lay.

The court emphasised that the guideline judgment in R v Henry was designed to guide, not dictate, sentencing outcomes. The sentencing judge had correctly identified reasons to depart from the guideline range in the applicant's favour, but the final sentence did not appear to reflect that intended departure. Shaw J described this as a failure to allow a sufficient discount and to take adequate account of the constellation of subjective factors.

The Court re-sentenced the applicant to a head sentence of three years imprisonment, with a non-parole period of eighteen months, both commencing 24 February 2003. As the non-parole period had already expired by the time of the appeal, the applicant was ordered to be released forthwith.

Orders Made

  • Leave to appeal against the sentence is granted.
  • The appeal is allowed.
  • The sentence imposed in the District Court is quashed.
  • The applicant is sentenced to imprisonment consisting of a non-parole period of 18 months dating from 24 February 2003 and expiring on 23 August 2004, and a head sentence of 3 years commencing on 24 February 2003.
  • The applicant is to be released to parole forthwith.

Key Takeaways

  • A sentence that fails to reflect a meaningful discount for an offender's substantial assistance to authorities constitutes a sentencing error, even where the sentencing judge verbally acknowledged that assistance.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may reduce a penalty by up to fifty percent to reflect an offender's assistance or undertaking to assist law enforcement in the detection, investigation, or prosecution of offences.
  • Applying an assistance discount only to the non-parole period, rather than to the overall sentence, is an error: R v MacDonnell (2002) 128 A Crim R 44.
  • Guideline judgments such as R v Henry (1999) 46 NSWLR 346 set a range, not a mandatory outcome. A sentencing judge may depart from the range, but must articulate the reasons for doing so, and the resulting sentence must actually reflect those stated reasons.
  • Where a sentencing judge identifies subjective factors warranting a favourable departure from a guideline range but the sentence does not reflect that departure, the Court of Criminal Appeal will intervene and re-sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 23

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v MacDonnell (2002) 128 A Crim R 44 (error to apply assistance discount to non-parole period only)