Dimian v R [2016] NSWCCA 223

Dimian v R [2016] NSWCCA 223

The sentencing judge erred because the indicative sentences stated under s 53A had to be treated as head sentences, and their total was less than the aggregate sentence imposed. On re-sentencing, the offences remained very serious and the delay was of little mitigating force, but totality required increased concurrency with the prior sentence and a lower non-parole period to avoid an excessive overall period in custody and to allow a reasonable parole period for rehabilitation.

Jurisdiction
Australia
Judgment Date
17 October 2016
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Re Sentencing in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced.
Legal Topics
['aggregate Sentence' 'indicative Sentences' 'non Parole Period' 'totality Principle' 'sexual Assault' 'delay in Prosecution' 'rehabilitation' 'prior Sentences']
['criminal Law' 'sentencing'] ['aggregate Sentence' 'indicative Sentences' 'non Parole Period' 'totality Principle' 'sexual Assault' 'delay in Prosecution' 'rehabilitation' 'prior Sentences']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Re Sentencing in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing an aggregate sentence that exceeded the sum of the indicative sentences for the offences.' 'Whether indicative sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) represented whole sentences or non-parole periods.' 'How the totality principle should be applied where the applicant was already serving sentences for similar sexual offending.' 'Whether delay between the 1993 offences and prosecution after a 2013 DNA cold case notification mitigated sentence.' 'What sentence should be imposed on re-sentencing.']

Ratio Decidendi

The sentencing judge erred because the indicative sentences stated under s 53A had to be treated as head sentences, and their total was less than the aggregate sentence imposed. On re-sentencing, the offences remained very serious and the delay was of little mitigating force, but totality required increased concurrency with the prior sentence and a lower non-parole period to avoid an excessive overall period in custody and to allow a reasonable parole period for rehabilitation.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant re-sentenced.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Quash the sentence imposed in the District Court on 17 April 2015. In lieu, sentence the appellant 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...