R v Dimakos

Court of Criminal Appeal (NSW)|2018-04-23|Before: Hoeben CJ, Rothman J, Button J

Judgment

HOEBEN CJ AT CL: I agree with Button J and the orders he proposes.
ROTHMAN J: I have had the advantage of reading the judgment in draft of Button J and the orders he proposes. I agree with the orders proposed. It is unnecessary to deal with any factual analysis as it has been done in detail by Button J in his reasons.
I agree with the analysis of the facts and I agree with the analysis and approach of Button J in his reasons, under the subheading Determination of Appeal.
I do not consider this is the appropriate vehicle for determining whether, in some circumstances, a general review of the sentence imposed may be appropriate. Further the evidence of subsequent events is relevant, at least, to the exercise of the residual discretion. Whether it is relevant to any other question depends on whether the Court is embarking upon a resentencing process.
The terms of the statute are clear and the Court ought not, where unnecessary, constrain the breadth of the jurisdiction conferred or add a gloss to the words of the statute.
BUTTON J:

Introduction

This is a Crown appeal brought pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW). The appeal-creating provision in its entirety is as follows: 5DA Appeal by Crown against reduced sentence for assistance to authorities (1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking. (2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit. (3) A reference in subsection (1) to a sentence imposed on a person includes a reference to a sentence that was varied or imposed by the Court of Criminal Appeal.

Background

Because of the limited issues that arise for consideration in an appeal of this kind, the background of the matter may be shortly stated.
On 9 August 2016, the respondent (to whom I shall refer by the pseudonym previously adopted in related proceedings of Spiros Dimakos, for reasons that will become apparent) pleaded guilty in the District Court to a single offence of aggravated breaking, entering and committing the serious indictable offence of larceny. The circumstance of aggravation was the use of corporal violence.
That offence had been committed on 6 February 2014, the matter had been committed for trial on 22 October 2015, and it had been listed for trial on 8 August 2016.
In a nutshell, in the early hours of 6 February 2014, the respondent, the alleged co-offender (to whom, for the convenience of the reader, I shall simply refer as the co-offender), and an unknown male attended the premises of the victim pursuant to a joint criminal enterprise. The respondent - who knew the victim - pretended to be overborne by the co-accused and the unknown male, and the three of them entered the victim's apartment. The co-accused punched the victim, asked "Where is your stash?", and threatened him on two occasions with further violence. The co-accused and the unknown male then tied up the respondent and the victim, and stole a number of items from the premises, including jewellery forcibly removed from the body of the victim. It was not until later, when monitored calls between the respondent and the co-offender were discovered, that the respondent was implicated in the offence.
The matter came before his Honour Judge Frearson SC for sentence on 2 February 2017. On that day, counsel then appearing for the respondent (to whom I shall refer as defence counsel) indicated that, on the day of the entry of the plea of guilty, the respondent had provided a statement about the involvement of the co-offender. Defence counsel also indicated that the respondent would "get into the witness box" and confirm that he would give evidence against the co-offender at his trial a few months later. The advocate for the Crown indicated that the evidence of the respondent "would certainly assist" (proceedings on sentence transcript (POST) 1.42).
The Crown tendered agreed facts signed by the respondent, his statement of 9 August 2016 confirming that the agreed facts were a "true and correct account" of the offence, his criminal history, and a pre-sentence report. The first of those documents directly implicated the co-offender, not only in the commission of the offence itself, but also in dishonest efforts to conceal it afterwards.
Defence counsel tendered a report from a forensic psychologist, a letter from a general practitioner, two references, and a certificate and transcript from TAFE.
Taken as a whole, the subjective material showed that the respondent was a man of mature years with a reasonably limited criminal record whose life had been damaged by a longstanding problem with prohibited and prescription drugs.
Thereafter, the respondent gave evidence on oath. In short, he agreed that he had pleaded guilty to a very serious offence. He confirmed that he had read the facts, and that he agreed with them. He explained that at the time of the commission of the offence, he had just left a drug treatment program. In the time leading up to the offence, he had been using a large number of prohibited and un-prescribed drugs.
His evidence on oath on 2 February 2017 was that, since about March 2014, he had remained abstinent from such substances (POST 6.45).
He gave evidence about his hopes for the future, including committing himself to his fiancée, working, reconnecting with his father, remaining on opioid replacement therapy, and seeing a psychologist. He also expressed remorse about the harm that his abuse of prohibited drugs had done to himself, his family and the community.
The following exchange occurred in chief: "Q. One other matter, Mr [Dimakos] - you provided a statement to police in August in relation to the involvement of your co-offender. A. That's correct. Q. You provided a statement - your co-accused's trial is in May this year. Are you willing to give evidence against him? A. Yes, I am. Q. Consistent with your statement that you've provided-- A. Yes. Q. --to police? That's the evidence in chief, your Honour." (POST 8.35-46)
In cross-examination, the respondent confirmed that he had been abstinent from all drugs since March 2014. He denied that monitored calls between himself and the alleged co-offender showed that he had been prepared to provide the co-offender with drugs whilst the latter was in prison.
In written submissions, defence counsel referred to the signed statement adopting the agreed facts that the respondent had provided implicating the co-offender, and submitted that his client should receive a discount for his assistance as a result, pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
In oral submissions, defence counsel submitted that there should be a discount of about 10% for the utilitarian value of the plea of guilty, at least some nominal discount for the past assistance in the form of the signing of the statement, and a total discount of not more than 40% (POST 14.44 - 16.18).

Sentence imposed

In the proceedings on sentence and remarks on sentence, his Honour rejected the submission that a head sentence of imprisonment for two years or less was appropriate, and concomitantly rejected the proposition that an intensive correction order could be imposed.
A discount for the utilitarian value of the plea was given "in the order of 10%".
At page 4 of the remarks on sentence, his Honour said the following: "I should point out that the offender has indicated and signed a statement which is dated the 9 August 2016, indicating that he is prepared to give evidence against the co offender in accordance with the agreed facts that he is relied upon. It is contended that I should provide a discount to him for past assistance and future assistance in accordance with the statute. There was very little past assistance apart from him signing a statement nominating the co offender. The combined discount for the plea and for the assistance should be in the order of 20%, and in my view the future assistance properly assessed is worth in the order of 9%. I say that because the offender's evidence may be of some assistance if it is called, but the history of his matter involves considerable dishonesty on behalf of the offender and he has very little credibility. Having said that though, there are some objective facts that would support his evidence at trial, so it is not worthless. It is worth in the order of about 9%, and that is the way I assess it."
His Honour discussed in detail the subjective features, including the fact that the respondent at that stage was a man of 44 years; his family relationships had been unsatisfactory; and he had abused prohibited drugs since early adolescence. His Honour noted that the position of the respondent was that, as at February 2017, he was drug-free; that at the time of the commission of the offence he was under the influence of crystal methamphetamine (ice); his claim to being remorseful; a history of depression; the relapse into drug use said to have preceded the offence; the current employment of the respondent; and his hopes for the future.
Special circumstances having been found, a head sentence of 30 months (or two years six months) was imposed, with a non-parole period of 15 months (or one year three months), each to date from 2 February 2017.
As a matter of mathematics, removing the global discount of 20%, one can see that the starting point of the head sentence was 37.5 months, or three years, one month and two weeks.

Subsequent events

On 21 February 2018, the respondent was called as a prosecution witness in the trial of the co-offender that was being conducted judge alone before his Honour Judge Berman SC. The following exchanges occurred in chief: "Q. You're currently in custody serving a sentence in respect of an aggravated break and enter on 6 February 2014, at [ ] Avenue, Marrickville? A. Yes. Q. You pleaded guilty to that offence? A. Yes, I did. Q. And you agreed facts on that sentence? A. I just can't remember. I may have but I don't remember. Q. You don't remember whether you agreed facts on your sentence? A. I was very nervous and under the influence of drugs, so like I said, and I said this to you yesterday, that my memory is not good and I do not remember a lot of incidences. Q. Mr [Dimakos], you were sentenced in February of 2017? A. Last year. Q. And on that occasion, in February last year, you agreed to a set of facts on your sentence; do you remember doing that? A. No, I can't. Like I said to you, I - I was speaking to my lawyers, my lawyers told me what to do. I don't remember all the legal jargon 'cause-- HIS HONOUR Q. Mr [Dimakos], do you have any memory of the robbery? Well, I'm sorry, the aggravated break and enter? A. Not much, your Honour. Q. Right, thanks. Do you know who you were with? A. No, sir." (TT 1.26 - 2.07)
Thereafter the Crown prosecutor made an application pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine the respondent. It was not opposed, and granted.
The following exchanges occurred: "CROSS-EXAMINATION BY CROWN PROSECUTOR Q. It's the case, isn't it, on 6 February 2014, when you committed the aggravated break and enter on [the victim], [the co-offender] was with you, wasn't he? A. I don't remember, sir. I don't remember the incidences, I told youse this. I told you this yesterday when we spoke. You came down and you told me that I had to come up and see this, this, and I told you I do not remember. I did state this to youse yesterday. HIS HONOUR Q. Mr [Dimakos], let me just make sure you understand what's happening. When you were sentenced in February last year I have been told that you got a reduction in your sentence for agreeing to give evidence against [the co-offender]. Do you know that? A. I don't - a lot of this-- Q. Hold on, just one thing at a time. Do you know you got a reduction for agreeing to give evidence against [the co-offender]? A. Your Honour, I agreed to paperwork, to signing paperwork. Q. Yeah, okay. I've been told anyway that you got a reduced sentence. Now, what can happen, if you don't do what you said you were going to do, is that the prosecution can appeal, you go to the Court of Criminal Appeal and you lose the discount that you got. So, in effect, your sentence can be increased. Do you know that? A. No, I didn't, your Honour. Q. Okay. Anyway, I just wanted to explain the position you're in? A. Thank you, your Honour." (TT 2.17-47)
Thereafter, the respondent gave evidence that he had no recollection of the discount that he had been given for agreeing to give evidence against the co-offender. He agreed that a signature on the statement that he had made "looks like" his (TT 3.44). Later, the following exchange occurred between the respondent and Judge Berman: "HIS HONOUR Q. Mr [Dimakos], maybe it would be quicker for you to tell us what you do remember about the offence that you pleaded guilty to? A. I don't remember much, your Honour. Q. Well-- A I don't remember anything. Q. --what does "much" mean? A. I don't remember anything, to be honest with you. Q. I beg your pardon? A. I don't remember anything. Q. You don't remember anything, okay? A. (No verbal reply)." (TT 5.36-6.03)
Audio discs of the monitored calls between the respondent and the co-offender were played, and he gave evidence that he "slightly" recognised the voices.
Later, his position was that he could not remember any of the circumstances of the offence to which he had pleaded guilty.
In due course, Judge Berman found the co-offender not guilty of the offence in which the respondent had implicated him at the time of giving his undertaking to Judge Frearson: see R v Pambris [2018] NSWDC 24. Having recounted the position adopted by the respondent when called as a witness in the judge alone trial, his Honour said at [30] of the reasons for verdict: "The result of this analysis of the crown case is that the Crown is left with the statement of facts signed by Mr Dimakos, a statement signed by Mr Dimakos when he had a powerful incentive to do so - the expectation that if he implicated the accused he would get a discount on his sentence. And it is a statement Mr Dimakos refused to acknowledge as true when giving sworn evidence before me despite being advised that this could see his time in jail increased. Exercising the caution I must, I am not satisfied of that statement's reliability to the high standard required by the criminal law, proof beyond reasonable doubt."
I interpolate that, at the hearing of the appeal, senior counsel for the respondent objected to receipt of the evidence of the disposition of the proceedings against the co-offender. But to my mind the evidence of the consequences of the position adopted by the offender in those proceedings is certainly relevant, not only to the discretion encapsulated in the word "may" in s 5DA(2) of the Criminal Appeal Act, but also to the evaluative judgment encapsulated in the phrase "as it thinks fit" to be found in the same subsection. And the same approach has been adopted in many decisions of this Court: for a recent example, see R v MG [2016] NSWCCA 304 at [18].

Position of the Crown

As one would expect, bearing in mind that the non-parole period of the respondent expires on 1 May 2018, the Crown promptly lodged the appeal under consideration.
The position of the Crown at the hearing of the appeal was simply that the respondent had indeed given an undertaking to give evidence; the content of the undertaking was that he would unequivocally implicate the co-offender in the home invasion; Judge Frearson clearly gave the offender a discount on his sentence on account of the undertaking "in the order of 9%"; the offender wholly failed to comply with his undertaking; and there is no reason why this Court should decline in the exercise of its discretion to intervene and remove that discount from the sentence of the respondent.

Position of the respondent

At the hearing of the appeal, senior counsel accepted in written submissions that the respondent had given an undertaking and, when called in the trial, "at least failed to wholly [sic; partly?] fulfil the undertaking".
Nevertheless, senior counsel submitted that this Court should not vary the sentence that is to expire in a matter of days. That was based on the following factors.
Judge Frearson "never warned or even advised" the respondent that a failure to comply with his undertaking would result in his sentence being increased.
An increase in sentence pursuant to s 5DA of the Criminal Appeal Act is not an exercise in punishment.
This Court retains a discretion as to whether it should intervene to increase the sentence.
The section does not permit a general review of the sentence imposed on a successful appeal.
Although the increase for which the Crown contended will not be lengthy, it will be painful indeed for the respondent, who has an expectation of being released in a matter of days. I understood the submission of senior counsel to be that the brevity of the increase contended for the Crown inherently argues against it.
Finally, events subsequent to the imposition of sentence also argue against increasing it. (I interpolate that, at the hearing of the appeal, a question was raised about the admissibility of an affidavit with annexures of the solicitor for the respondent setting out such matters. But to my mind they are clearly relevant to the two aspects of the appeal-creating section to which I have invited attention above. And in any event, in the determination of many such appeals, this Court has received such evidence: see, for example R v Shahrouk [2014] NSWCCA 87 at [31]).
The subsequent matters relied upon by senior counsel include: the respondent instructing his solicitor that he has been working whilst in custody; his classification having been adversely affected by the filing of the Crown appeal; a prison officer having spoken highly of the respondent as a good worker; and the respondent having completed a number of TAFE courses whilst in custody. Furthermore, when released, the respondent intends to live a law-abiding life with his partner and their daughter at the home of the mother of his partner, engage in employment that is already arranged, and get married later this year.

Determination of appeal

I am firmly of the view that the discount afforded by the sentencing judge to the respondent should be removed, with the result that his head sentence and non-parole period will be extended. That is because I am satisfied that the respondent wholly failed to comply with his undertaking, and did so deliberately. Because Judge Frearson spoke of a discount "in the order of 9%" for future assistance, for abundant caution I shall very slightly round down the head sentence and non-parole period that result.
Turning to the factors relied upon by senior counsel in resistance to that outcome, and dealing with them in the same order that they appear above, it is clear from the conduct of the proceedings on sentence by defence counsel that he is experienced in criminal law. One can safely infer that, at the time when the statement adopting the agreed facts was signed by the respondent, his counsel had informed him of the consequence of failing to comply with his undertaking, and that that state of knowledge was extant when the respondent gave evidence on sentence.
Secondly, I agree that increasing the sentence is not an exercise in punishment. Rather, it is an exercise in withdrawing an unearned benefit from a person who has entered into a bargain and thereafter not fulfilled his or her side of it.
Thirdly, I accept that there is a discretion not to intervene in matters such as this. But here one is compelled to the view that there has been a dishonest manipulation of the criminal justice system by the respondent.
Fourthly, I have no intention of reviewing generally the sentence imposed upon the respondent. All I propose is that the discount for future assistance that was not forthcoming be removed.
Fifthly, it is true that the extension of the head sentence and, in particular, the non-parole period, will not be great. But there are obvious systemic reasons why persons who fail to maintain their side of a bargain such as this should, except in unusual circumstances, suffer consequences as a result. And the fact that a discount that is to be removed was not overly significant in the first place - because a sentencing judge, for reasons adverse to the offender, assessed the future assistance as not being of great value even if given - is no reason why such a benefit obtained by manipulation should be retained.
Sixthly and finally, regrettably the history of this matter renders the credibility of the respondent negligible, if not worthless. Having said that, I accept much of the new evidence placed before us, because it is corroborated from other sources. But neither events in custody, nor what is proposed to occur once the respondent is released, should stand in the way of the unearned benefit being withdrawn.

Calculations and proposed orders

To give effect to the preceding analysis, I have adopted the following mathematical procedure.
First, removing the global discount of 20%, one arrives as I have said at the notional starting point of the head sentence of 37.5 months or three years, one month and two weeks.
Secondly, reducing that by 11%, one arrives at a head sentence of 33 months and some days, which I have rounded down to 33 months, or two years nine months.
Thirdly, replicating the ratio of 50% between the non-parole period and the head sentence adopted by the sentencing judge, one arrives at a non-parole period of 16 months and two weeks or one year, four months and two weeks.
In accordance with that approach, I propose the following orders: 1. The sentence imposed by Judge Frearson SC on 2 February 2017 is quashed; 2. 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; 3. The respondent will be released to parole on 15 June 2018.

Amendments 02 May 2018 - The expiry dates of the non-parole period and aggregate sentence adjusted by one and two days respectively to reflect with precision the orders made with regard to their length. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2018

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