R v Dimakos (a pseudonym) [2018] NSWCCA 78

R v Dimakos (a pseudonym) [2018] NSWCCA 78

The respondent received a sentence discount for an undertaking to give evidence against the co-offender, but at the co-offender's trial he deliberately failed to give the promised evidence, saying he could not remember the offence and refusing to acknowledge the signed facts as true. That amounted to a complete failure to fulfil the undertaking. The respondent's custody conduct and release plans did not justify allowing him to retain the unearned benefit, and the proper course was to remove the future assistance discount while not conducting a general review of the original sentence.

Jurisdiction
Australia
Judgment Date
30 April 2018
Procedural Posture
Crown Appeal Against Sentence Pursuant to S 5 DA of the Criminal Appeal Act 1912 (nsw) / Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court on 2 February 2017
Outcome
Crown appeal allowed; original sentence quashed and respondent resentenced with the discount for future assistance removed.
Legal Topics
['crown Appeal Against Sentence' 'reduced Sentence for Assistance to Authorities' 'failure to Fulfil Undertaking to Give Evidence' 'removal of Discount for Future Assistance' 'non Parole Period and Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['crown Appeal Against Sentence' 'reduced Sentence for Assistance to Authorities' 'failure to Fulfil Undertaking to Give Evidence' 'removal of Discount for Future Assistance' 'non Parole Period and Parole Period']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence Pursuant to S 5 DA of the Criminal Appeal Act 1912 (nsw) / Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court on 2 February 2017

Legal Issues

  1. 1 ['Whether the respondent failed wholly or partly to fulfil his undertaking to provide future assistance by giving evidence against the co-offender.' 'Whether the Court should exercise its discretion under s 5DA of the Criminal Appeal Act 1912 (NSW) to vary the sentence and remove the discount allowed for future assistance.' "Whether subsequent events, including the course and result of the co-offender's trial and the respondent's conduct in custody, should affect the exercise of discretion."]

Ratio Decidendi

The respondent received a sentence discount for an undertaking to give evidence against the co-offender, but at the co-offender's trial he deliberately failed to give the promised evidence, saying he could not remember the offence and refusing to acknowledge the signed facts as true. That amounted to a complete failure to fulfil the undertaking. The respondent's custody conduct and release plans did not justify allowing him to retain the unearned benefit, and the proper course was to remove the future assistance discount while not conducting a general review of the original sentence.

Court Disposition

Crown appeal allowed; original sentence quashed and respondent resentenced with the discount for future assistance removed.

Orders

  • ['The sentence imposed by Judge Frearson SC on 2 February 2017 is quashed.' 'The respondent is sentenced to a non-parole period of one year, four months and two weeks, to commence on 2 February 2017 and conclude 15 June 2018, with a parole period of one year, four months and two weeks, to expire on 29 October 2019.'...