R v Dimarelis

Supreme Court of NSW|2017-11-09|Before: Harrison J

REMARKS ON SENTENCE

HIS HONOUR: Elias Dimarelis has pleaded guilty to two charges, namely, being an accessory after the fact to the murder of Donovan Mileham on 14 November 2015, contrary to ss 18(1)(a) and 349(1) of the Crimes Act 1900 and giving possession of a firearm to a person not authorised to possess it contrary to s 50B of the Firearms Act 1996. The accessory charge carries a maximum penalty of 25 years imprisonment. The firearms offence carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period for either offence.
Mr Dimarelis stands to be sentenced upon the basis of a statement of agreed facts. That statement contains some matters of detail that are to a large extent extraneous to my present task. However, to the extent that they are relevant, those facts are as follows.

Agreed facts

Donovan Mileham was fatally shot in room 3109 at the Fraser Suites, 488 Kent Street, Sydney on 14 November 2015. His body was discovered by hotel staff two days later at approximately 6.42am. Mr Mileham had suffered a single gunshot to the rear of his upper left thigh that had penetrated his abdomen.
Mr Mileham had been an associate of Mr Dimarelis and his co-accused Rebel-Anne King. Mr Dimarelis and Ms King were in a relationship. Mr Mileham was known to frequent an establishment known as The Love Machine at 60 Darlinghurst Road, Kings Cross. The Love Machine operated as a strip club and brothel. Mr Dimarelis and Ms King worked there. Mr Dimarelis had an interest as a part-owner of that business.

Induced statement

Mr Dimarelis provided an induced statement on 8 November 2017. This is referred to later in these remarks in the context of the significance for sentencing purposes of Mr Dimarelis' offer of assistance to the police in the prosecution of his co-offenders.

What items were left in or removed from room 3109?

As already indicated, there is a dispute between the Crown and Mr Dimarelis about what other items, including the firearm used to shoot Mr Mileham, were left in the room. There is also a related dispute about what Ms King removed from the safe in room 3109 and in particular what she said to Mr Dimarelis after she left the room. The issue of significance is what Mr Dimarelis knew concerning whether or not Ms King removed the gun from the safe in room 3109. The Crown contends that the objective seriousness of the accessory count is informed by the answer to this question.
The Crown submits that the terms and tone of the conversation between Mr Dimarelis and Mr Bayeh at 5.29am on Sunday 15 November 2015 indicate that Mr Dimarelis must have been aware that the gun remained in the safe. The Crown contends that Mr Bayeh is in effect giving instructions to Mr Dimarelis and Ms King to return to the hotel and remove the firearm from the safe. It is the Crown case that in the recorded conversation at The Love Machine at 6.14am on the day of the shooting Mr Dimarelis tells Mr Bayeh that the gun is in the safe. During this conversation Mr Bayeh asks Mr Dimarelis "Where the…?" The Crown submits that Mr Bayeh is referring to the firearm. Mr Dimarelis replies "In the safe". Mr Bayeh then asks "Where?" and Mr Dimarelis responds "In the hotel". Mr Bayeh then asks Mr Dimarelis "Why did he [meaning Mr Fazlilar] put it in the safe for?" to which Mr Dimarelis replies "'cause he wanted to stash it (indecipherable) transport it (indecipherable)." Mr Bayeh confirms "In the safe in the hotel?" and Mr Dimarelis replies "In the safe in the hotel yeah in the room. I just got the fuck out of there." The Crown maintains that this passage of dialogue supports its case that after Mr Fazlilar shot Mr Mileham he put the gun in the safe in the hotel room and that Mr Dimarelis was aware of this. In the conversation on the following day, Mr Bayeh says "And she left something in the safe and she need to pick it up so it'll all open up for her and you grab what's a name." Mr Dimarelis agrees and Mr Bayeh continues saying "'Cause once you get that one, the whole case shut".
In this same context the Crown submits that the whole purpose of extending the period of the occupancy of the room was so that Ms King could return to remove the firearm from the safe, thereby assisting Mr Fazlilar to avoid detection or apprehension. The Crown says that Mr Dimarelis was aware of this and was complicit with Ms King in assisting Mr Fazlilar to evade justice. The Crown contends that Ms King did not go up to the room to remove the gun until the middle of the night when fewer people would be around and when there was less chance of her being seen entering the room. Ms King was chosen to do so as she was the person who arranged for the extension. The Crown case is that in the three minutes and twenty seconds that elapsed, Ms King entered the room, removed the firearm and placed it in the Eiffel Tower bag. It is implicit in this analysis that Mr Dimarelis was aware of what Ms King was then doing. The Crown contends that Mr Dimarelis was thereafter aware of Ms King's movements whilst carrying the Eiffel Tower bag at all times up to and including its delivery to Mr Fazlilar's Redfern apartment where it was ultimately found by the police. The firearm was never recovered.
Mr Lloyd QC who appeared for Mr Dimarelis disputed the proposition that the gun was ever in the Eiffel Tower bag. The bag was tested for the presence of gunshot residue and none was found. Sergeant West confirmed this in cross-examination as follows; "Q. Did you test the inside of the bag or any of these items for gunshot residue? A. The inside of the bag was tested, yes. Q. Was there any gunshot residue found? A. Not in the bag, no."
Mr Lloyd submitted that one would have expected, if the gun had been recently used, to find gunshot residue on the inside of the bag. Indeed, that is clearly why it was tested, and yet none was found.
Mr Lloyd also submitted that Ms King is more likely to have returned to the room to retrieve drugs and ammunition. He submitted that I would never be satisfied beyond reasonable doubt that Mr Dimarelis was complicit with Ms King in her return to the hotel room to retrieve a gun. For example, it is known that Mr Fazlilar remained in the room after Mr Dimarelis fled the scene. It is also apparent that Mr Fazlilar must have taken with him Mr Mileham's phone and undoubtedly would have done so in an effort to avoid detection himself. Mr Lloyd submitted in these circumstances that common sense would dictate that if Mr Fazlilar was taking the phone he would also take the gun.
Part of the evidence before me is Mr Dimarelis' induced statement. That was tendered by the Crown without objection. Paragraph 25 of that statement is as follows: "25. In paragraph 45-50 [of my previous statement] I lied about the reason Rebel [King] returned to the Fraser Suites and extended the stay. The reason we decided to extend the stay was to allow Rebel time to 'clean the room' of items that would be incriminating. I will provide further detail later in this statement…"
Paragraph 41 of the statement is in the following relevant terms: "41. After [Mr Fazlilar] and Rebel returned (from the bedroom at Mr Fazlilar's apartment) Rebel said something along the lines of 'Louie [meaning Mr Dimarelis] is shitting himself'. [Mr Fazlilar] put his arm around me in a reassuring way and said words to the effect of: 'Don't worry I don't have anything here. I'm not armed, nothing here, I gave it to Dave, Dave is getting rid of it.' Dave confirmed that he was getting rid of what I took to be the gun or he had already gotten rid of it. Rebel and I left the unit, as we got to the car Rebel told me she had agreed with [Mr Fazlilar] to extend the room. Rebel and I had already planned to do this in any case prior to the shooting for the purpose of spending time together in a nice hotel. But now we were doing it because [Mr Fazlilar] had left some 'shit' in the room. [Mr Fazlilar] had not taken the key to the room and had left some drugs and bullets in the safe. [He] was going to give Rebel $1,000 to 'clean' the room. Rebel and I understood this to mean 'clean' the room of incriminating evidence, but she did not specifically state what she was asked to 'clean'. Rebel told me that she was going to go to the room, collect the drugs and bullets from the room and hand them back to [Mr Fazlilar], but also wipe down the room. I took this to mean cleaning the surfaces of finger prints and DNA. [Mr Fazlilar] had already given Rebel the money to extend the room. To the best of my knowledge, Rebel did not get paid the $1,000. I said I would wait downstairs while she did it. Rebel called the hotel and extended the room. I am not sure why the room needed to be extended, it might have been expiring soon I am not sure. We drove from Redfern to Kent Street in the city. I waited in a bar while she went and extended the room."
At paragraph 42 of that statement, Mr Dimarelis indicated that his text message to Mr Fazlilar Saying "all sweet" was in order to inform him that the room had been extended. Paragraph 44 is in the following relevant terms: "44. Some time before she went into the room, she had gone to my car to get some of her things - just bags nothing particular. Rebel then left to go to the Fraser Suites. Rebel came back about 15-20 minutes later. Rebel said she had opened the door to the room, she said words to the effect of: 'I saw a figure lying on the floor that I assume is Donovan'. I called [Mr Fazlilar] from Rebel's phone and said that we need to meet. [He] agreed and asked where…I also asked Rebel if she checked on Donovan just then, Rebel said 'No, I didn't go into the room'."
Finally for present purposes, Mr Dimarelis said this at paragraph 50: "50. After the shooting I did not see the gun used by [Mr Fazlilar] in the shooting again or the ammunition that I saw in the safe. At no time did I see any other gun or was told at any time by Rebel that she had removed or possessed or disposed any ammunition or firearm."
Mr Dimarelis gave evidence before me. He was cross-examined on this issue by the Crown as follows; "Q. And I want to suggest to you that you knew that one of the items that she removed from the room was the gun that had been used to shoot Mr Mileham? A. No. That's not correct. … Q. When she returned to the Charlie Chan bar, after cleaning the room, did you ask her what she'd removed? A. No, I didn't have a chance. She just came and told me that she had found a figure lying on the ground that she assumed to be Donovan. And that's all that was discussed. Q. But you say you had some drugs there that probably had your fingerprints on them? A. Mmm mmm. Q. Didn't you ask her: 'Look, where are the drugs?' 'Where's the bag of drugs'? A. That wasn't my concern at that stage. Q. Did you suggest she go back up and get the drugs that would implicate you? A. No. Q. You see, I want to suggest to you that you were satisfied that she had removed material there that might have implicated you? A. No that's not correct. Q. You didn't even ask her about the drugs that were up in the room? A. No. Q. Did you tell Mr Fazlilar that there were drugs up in the room that might implicate you? A. No. Q. Did you tell Mr Fazlilar anything about what had been removed from the room? A. No. Q. Did you know what Rebel King had removed from the room? A. No. Q. Did you ask her at any stage what it was that she'd removed from that room? A. No, she had told me from when she had found Donovan that she never crossed the threshold of the room. Q. She told you she didn't even go in A. She said she opened the door, saw him lying there, and then came straight back to Charlie Chans. So I didn't question her further after that. Q. I suggest to you that you were aware that she had removed the gun that had been used to shoot Mr Mileham? A. No that's incorrect. Q. It was at about half past 2 in the morning of the Monday that Rebel King had gone up to that room in order to clean it? A. Yes. Q. And you didn't see Mr Fazlilar for some considerable time after that; is that right? A. Yes. Q. About a day, a whole day? A. No. Q. Sorry, several hours? A. (Witness nodded) Q. Several hours? A. I believe so. Q. And during that time, you say you didn't discuss with her anything about whether she'd removed anything from the room? A. No. Q. You met with Mr Fazlilar at the Madison Hotel later that day? A. Yes. Q. Did Rebel King in your presence say to him anything about what she'd removed from the room? A. No she didn't speak to him. Q. Was the purpose of meeting Mr Fazlilar that day to tell him that the gun had been retrieved? A. No."
Having regard to this material I am unable to be satisfied beyond reasonable doubt that Mr Fazlilar's gun was still in the room when Ms King returned to it or that she retrieved it from the room. I accept that on one view the conversation between Mr Dimarelis and Mr Bayeh supports the contention that Mr Dimarelis was concerned that the gun may still have been in the room. An alternative explanation of this discussion is that Mr Bayeh was asking why Mr Fazlilar had the gun "stashed' in the safe in the first place, meaning before the death occurred.
Mr Dimarelis also maintained that he did not have any involvement with retrieving the gun from the room. That is apparent from his induced statement. He maintained that position in cross-examination. In the relatively limited setting of that cross-examination in sentencing proceedings, it is not possible to be satisfied that his evidence was false.
Moreover, there are two matters that cast a reasonable doubt upon the Crown's submissions. The first is the absence of gunshot residue in the Eiffel Tower bag. This issue was not examined at a technical or scientific level before me but its potential importance from the police perspective is highlighted by the fact that tests were in fact performed. A positive result for the presence of gunshot residue would have been a powerful indicator that the gun had been transported in the bag. The negative result is equally powerful.
The second is the significant unlikelihood that Mr Fazlilar would not himself have removed the gun from the room when he left it. It is difficult to conceive of a sensible or logical reason why the weapon used by him to kill Mr Mileham, whose body remained in the room after he left it, would not have been taken by Mr Fazlilar and disposed of elsewhere. This is particularly so when one considers that the eventual discovery of Mr Mileham's body in the room by the police was inevitable and that a search of the room for other evidence in the way that occurred was equally certain.
I am unable to be satisfied to the required standard that Mr Dimarelis knew about, or was concerned with, the removal of the gun from room 3109.

The meeting at Mr Fazlilar's apartment on Monday

There is also a dispute between the parties about what occurred at the meeting that took place at Mr Fazlilar's apartment in Redfern around midday on Monday 16 November 2015. For present purposes, the only relevant issue concerning this meeting is whether or not Ms King and Mr Dimarelis went there to return Mr Fazlilar's gun.
Mr Dimarelis' statement does not support the Crown contention that they did. Mr Dimarelis was not specifically cross-examined about what took place at that meeting. My analysis of the dispute concerning the retrieval of the gun from room 3109 does not support the proposition for which the Crown now contends. The evidence is otherwise unavailable to permit me to make a reasoned determination of what took place at the meeting. I cannot in these circumstances make any finding beyond reasonable doubt, on matters arguably adverse to Mr Dimarelis, about what happened at Mr Fazlilar's Redfern apartment on Monday 16 November 2015.

The accessory count

The Crown frankly conceded that the assessment of this offence was difficult. The shooting was in effect a brazen act of extreme aggression for no apparent logical reasons. However, the Crown quite properly conceded that Mr Dimarelis was terrified at the shooting, that he thought that he may also be shot because he was a witness to what occurred and that he continued to be fearful afterwards. The Crown accepted that these were all matters that had to be taken into account. The following extract from the Crown's submissions should be noted: "CROWN: The acts of accessoryship of themselves in one sense are serious but in another sense they are perhaps below the mid-range. In terms of the seriousness it involved his presence at a time when his then girlfriend Rebel King was providing considerable assistance to Mr Fazlilar to try and hide the identity of the shooter. So I suppose in the sense it wasn't him that actually did the physical acts. He was there encouraging and assisting and advising Ms King to do the acts or to do most of the acts of accessoryship, so in that sense his involvement was a second stage involvement, he wasn't directly involved in it. HIS HONOUR: As you say there's a coextension between the acts that appeared to disguise the crime and self-interest. CROWN: Yes indeed. So he's not the one who physically cleans the room. He's not the one who physically goes up to clean the room up. So his involvement is one stage removed from those acts. So in that sense it's less serious but it is more serious in that it was designed to cover up the involvement of the shooter who had committed a very serious offence."
Mr Lloyd submitted that the objective seriousness of this offending was at the lower end of the scale. He identified four acts that operated to help Mr Fazlilar, as the principal offender, to evade justice in accordance with the principles discussed in R v Dileski [2002] NSWCCA 345: 1. After witnessing Mr Fazlilar shoot Mr Mileham, he failed to notify the police and emergency services. 2. He agreed to assist Ms King to return to the room where Mr Mileham had been shot in order to retrieve incriminating items. 3. He agreed with Ms King to extend the room occupancy for another night and assisted her to do so. 4. He lied to the police about what had taken place in the room around the time of the murder.
Mr Lloyd also emphasised that the things done by Mr Dimarelis that could be characterised as being of assistance to Mr Fazlilar in evading justice were also significantly inspired by his own desire to avoid falling foul of Mr Fazlilar himself. Mr Dimarelis was after all the only witness to the death of Mr Mileham and potentially the person who stood between Mr Fazlilar and his acquittal for the murder. Mr Fazlilar was demonstrably a person of irrational temperament and violent tendencies. It was clearly in Mr Dimarelis' best interests to cooperate with Mr Fazlilar to avoid detection and conviction. This is borne out as well by the Crown's acceptance of Mr Dimarelis' importance in the Crown case against Mr Fazlilar and the associated significance of the discount to which he is entitled for assistance in this regard.
It is nowhere suggested that Mr Dimarelis anticipated what occurred or that he should have foreseen that Mr Mileham would be shot.
In my opinion, this offence falls well below the middle of the range of objective seriousness for offences of this type. Compare, for example, R v Purtill [2012] NSWSC 566.

The firearms count

With respect to the firearms offence, the Crown submitted that it fell within the midrange of objective seriousness. It was the handing over of a firearm to a man who Mr Dimarelis believed had associations with criminal elements, including bikie gangs. The Crown maintained that whilst assessment of the criminality cannot take into account the fact that Mr Fazlilar, something like 20 hours later, probably used the same gun to shoot Mr Mileham, the very fact that he was a man who Mr Dimarelis believed was dangerous and who was capable of using the firearm made the offence of transferring it to Mr Fazlilar more serious.
Mr Lloyd submitted that the objective criminality of this offence fell at the lowest level for the following reasons: 1. Mr Dimarelis was not supplying a firearm afresh to Mr Fazlilar but was on the contrary delivering Mr Fazlilar's own firearm to him. 2. The physical acts concerned in retrieving and delivering the firearm to Mr Fazlilar occurred over a short period of time. 3. The acts were not performed for reward or other pecuniary advantage. 4. Mr Dimarelis' acts were not critical or essential to Mr Fazlilar's possession of the firearm, in the sense that it was open to him to have retrieved the weapon himself. 5. (To the extent that it is relevant to the assessment of objective seriousness), it has not been established that Mr Dimarelis knew or believed that Mr Fazlilar would or might use the firearm for a dangerous or illegal purpose. In this respect it should be noted that Mr Dimarelis was not cross-examined about what use he thought Mr Fazlilar might make of the firearm or about any belief or understanding he might have had prior to the shooting about Mr Fazlilar's background or dangerousness.
To what extent can a specified offence be aggravated by certain external circumstances? In particular, can the subjective features of somebody unconnected with the commission of the offence inform the degree of criminality involved?
In MP v R [2009] NSWCCA 226 the offender was charged with the common law offence of conspiracy to sell unregistered firearms. Over a lengthy period of time, he funded and made various arrangements related to the purchase of firearms interstate for sale in New South Wales. The court held that where an "inherent characteristic" of a particular offence exceeds the norm it may be taken into account as an aggravating factor within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. The court concluded, at [37], that it was appropriate to take the disregard of public safety into account as an aggravating factor because "the longevity of the risk, the fact that in excess of 740 weapons were placed into circulation as a result of the applicant's participation in the conspiracy…overwhelmingly establish that the risk to the public brought about by this offence 'exceeds the norm'".
In Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97, Simpson J explained: "[37] … By s 21A(2), the fact that an offence is part of a planned or organised criminal activity is a matter that a sentencing court is obliged to take into account as an aggravating feature. But, by the suffix to that subsection, the court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are 'an inherent characteristic' of the offence charged (see, for example, Elyard v The Queen [2006] NSWCCA 43; per Howie J). An example is the disregard for public safety implicit in dangerous driving offences. But this principle does not mean that the degree to which the 'inherent characteristic' exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor. …"
In this case, the Crown has submitted that the criminality involved in the firearm offence was increased by the fact that it was supplied by Mr Dimarelis to a recipient he knew to be violent and capable of crime. This is akin to a suggestion that the offence was aggravated by a disregard for public safety (s21A(2)(i)). A disregard for public safety (or an understanding that the unauthorised firearm may be used in a violent crime or by a specific violent person) is arguably an inherent characteristic of the offence, and therefore not to be considered as an additional aggravating circumstance informing the criminality involved. It could only be if Mr Dimarelis' actions or disregard "exceeded the norm" of what is contemplated by the statute, that it could be considered as an aggravating circumstance.
In R v Najem (2008) NSWSCCA 32, the Court considered that: "It is appropriate to have regard to the rationale behind the statutory provision against which the Respondent offended. That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights."
The Crown referred to the decisions of Athos v R [2013] NSWCCA 205 and R v Sward [2014] NSWCCA 259 in support of the submission that Mr Dimarelis' knowledge about Mr Fazlilar as the intended recipient of the firearm is relevant to his moral culpability for the offence.
However, these cases are different factually and legally to the present case. Sward concerned the sale (supply) of four handguns at the one time to members of an outlaw motorcycle gang. Athos concerned the transport of multiple firearms and ammunition in bags from Queensland for partial delivery to a co-offender. As stated in the judgment at [22]: "His Honour was unable to accept the applicant's assertion 'that he did not consider by handing over what he agreed was an arsenal of weapons and ammunition to men who he knew had criminal backgrounds, that these items might be used in criminal activity' (ROS 11). His Honour did not accept that the applicant's role was merely as a custodian of these weapons and his possession of them was nothing more than a foolish favour. Given his findings as to the lack of credibility of the applicant both in his ERISP and in his evidence, his Honour was unable to determine what were the true circumstances in which the applicant came to be in possession of the weapons and ammunition. The judge was satisfied beyond reasonable doubt that the applicant would have been fully aware that by handing over the weapons and ammunition to these associates with criminal backgrounds, as he intended to do, that there was a real chance that these weapons would be used in criminal activity."
It seems to me that Mr Dimarelis' actions in retrieving Mr Fazlilar's gun and delivering it to him amounted to no more than a foolish favour. It was in context a ministrative and perfunctory act of convenience. Mr Dimarelis is now painfully aware of the fact that Mr Fazlilar used the firearm to commit a serious offence. He did not know that when he handed the gun to its owner. I do not consider that there is in this case some superadded aggravating element of dangerousness or increased moral culpability extending beyond the clear purpose or rationale for this offence.
I consider that this offence lies well within the lower end of the range of objective seriousness for offences of this kind.

Subjective circumstances

Mr Dimarelis is a 33 year old man of Greek parents. He is married but separated. He attended a Marist High School in Sydney to Year 10. He would appear to have been an average student with no particular academic or sporting successes.
Mr Dimarelis grew up in a close family and was supported by both parents. There were no significant childhood dramas. He was never sexually abused.
Mr Dimarelis had some difficulties in his marriage and was anxious on occasions. His most significant psychological injury was triggered by a car accident when he was working for Panasonic. He developed symptoms of relatively severe PTSD that included an overwhelming fear that he would die every time he travelled in a car. He underwent exposure therapy for this problem.
Mr Dimarelis is a social drinker. He has no history of using cannabis or amphetamines. He commenced using cocaine after he secured a financial interest in The Love Machine and became involved in a relationship with Ms King around August 2015. He used cocaine initially weekly, but this progressed to daily use. He felt invincible.
In relation to the shooting of Mr Mileham, Dr Furst obtained the following account from Mr Dimarelis: "Mr Dimarelis said [in relation to the shooting]: 'I have never seen anything like that before. It's not something I've been around. He…pulled out the gun and shot the guy in the leg. I thought I was going to get shot next. He was looking at me. I kept saying 'I didn't see anything'. He just went crazy and pulled it out [the gun]. It happened so quick. I heard him pull it back then, the next thing, 'boom'. He was just standing there, staring at me. I thought. 'What if he shoots me next?' When asked why he did not go to the police, Mr Dimarelis said, 'I was scared for myself. He was a client at the club. He knew where I worked. I knew he was armed. I knew he was a person not to be messed with'. He now understands that his actions were wrong. He said, 'I have strong feelings of fear, guilt and shame. I now know I did the wrong thing afterwards. I was so confused. So scared. I should have gone to the police. I was so afraid for my girlfriend. He knew where my business was. I think about how stupid it was to have done this [being an accessory after the fact to murder]. I wasn't thinking properly. I put myself in the world I'm not used to. They have notions of not going to the police. Even not calling an ambulance'. He said, 'I feel terrible for myself and my actions. I want to do what I can to make it better…help Donovan's family'."
Mr Dimarelis plans to live with his parents when released from custody. He has an offer of work with his brother as a business development manager.
Mr Dimarelis has past convictions. These include robbery in company when he was 17 years of age. He has three other convictions for traffic offences between 2008 and 2010.

Pleas of guilty

Mr Dimarelis entered pleas of guilty to both offences. The Crown accepted that his plea of guilty to the accessory after the fact to murder charge was entered in the Local Court about 15 months after he was first charged. The Crown submitted that Mr Dimarelis would not therefore be entitled to the full discount because of the lateness of the plea. Some discount was nevertheless appropriate.
With respect to the firearms offence, Mr Dimarelis' plea was only entered at the first arraignment in the Supreme Court on 2 June 2017. The Crown argued that a lesser discount should apply in relation to his plea of guilty on that charge.
Mr Lloyd submitted that a discount of 25 percent should apply to each count. The practical effect of the pleas is that a trial has been avoided, and well in advance of the scheduled date for the trial of the co-offenders. The utilitarian benefit in the circumstances remained high, even if the pleas were not entered at what might strictly be considered to be the first available opportunity.
I consider that Mr Dimarelis is entitled to a discount to reflect the value of his pleas in each case. In my view a discount of 20 percent on each count should apply.

Discount for assistance

The discount in respect of Mr Dimarelis' offer to provide assistance to the authorities in this case is of a high order. The Crown once again properly accepted that Mr Dimarelis is quite clearly entitled to a substantial discount for providing the induced statement to the police, albeit at a late stage, and for his offer to give evidence, predominantly against Mr Fazlilar.
As I have elsewhere discussed, Mr Dimarelis would appear to be the sole eye witness to the events that led to the death of Mr Mileham. He has offered to assist the prosecution in the knowledge that his personal safety may be at risk. That prospect has hardened, with threats to him having been circulated within the prison environment. At face value, and putting aside any possible attacks that may be made upon his credibility or truthfulness at the trial of his co-accused, the value of Mr Dimarelis' evidence would appear potentially to be of the highest order.
I consider that Mr Dimarelis is entitled to a discount of 30 percent for his offer of assistance. I consider further that the discount should be applied in respect of the value of Mr Dimarelis' offer to give evidence at the trial of his co-accused and so should apply exclusively to that future assistance.

Custodial conditions

By reason of his offer to cooperate with the police and to provide assistance in the prosecution of Mr Fazlilar, Mr Dimarelis perceives that his safety is at risk in both the prison environment and possibly beyond it. He is currently classified as an inmate in need of protection. Mr Dimarelis gave evidence of the extent to which that classification affected his daily prison routine and the unpleasant differences between him and those in the general prison population. As will be apparent, however, and being mindful to avoid double counting, I have factored this into my assessment of the value of Mr Dimarelis' future assistance and have not separately incorporated it in calculating the sentence I intend to impose.

Contrition and remorse

Mr Dimarelis gave evidence in the following terms: "Well I apologise for my actions. I realise now it was a tremendous error in my judgment. I made a lot of mistakes which I now regret and will regret for the rest of my life. I do want to convey my condolences to the Mileham family. I am deeply sorry for their loss and I can only say that I do my best to understand what they go through every day as I remember the event quite vividly everyday myself."
I have no basis upon which to reject the expression of those sentiments as honest and genuine. That opinion is shared by Dr Richard Furst who examined Mr Dimarelis and who prepared a report dated 17 August 2017. I have had the opportunity to observe Mr Dimarelis in the witness box. He undoubtedly regrets his actions and accepts responsibility for the role that they played in the unfortunate and senseless death of Mr Mileham.

Risk of reoffending

In a related context, I have no expectation that Mr Dimarelis is at risk of reoffending. His family background and support suggests that he will move to steady employment beyond the seedy context of The Love Machine and his erstwhile curious investment in it. His criminal history is of limited significance and provides no indicators to suggest that my expectations about him are frail.

Deterrence

For the reasons I have expressed with respect to his risk of reoffending, I am satisfied that there is no need to impose a sentence that includes any element of special deterrence.
On the contrary, the nature of the offending, if not of the most serious kind in this case, calls for some public recognition of the distaste that the community rightly has for such criminal activity.

Special circumstances

Having regard to the sentence that I propose to impose, I do not consider that there are special circumstances that warrant any variation of the ratio of the parole to non-parole period pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act.

Victim impact statements

Statements were read in the sentencing proceedings by Mr Mileham's mother and one of his brothers. It is obvious and understandable that they are severely distressed at the loss of their son and brother respectively. There are, however, strict legal limitations upon the use that can be made of such statements for sentencing purposes.

Previous custody

Mr Dimarelis has been in custody since 29 March 2016. He was originally arrested and charged with the accessory after the fact to murder count on 12 January 2016 and spent 23 days in custody until he was granted bail by Central Local Court on 4 February 2016. On 29 March 2016 Mr Dimarelis was arrested for the firearms offence. He was refused bail for that offence. On 7 April 2016 a detention application was made by the Crown with respect to the accessory offence and bail was revoked on that charge.

The sentence

It is important to bear in mind that Mr Dimarelis is not being sentenced for the murder of Mr Mileham. He is to be sentenced for delivering a gun to Mr Fazlilar and for what amounts to a failure immediately to report the circumstances of the death to the police. The evidence before me makes it plain that Mr Dimarelis was in fear of Mr Fazlilar following the shooting, clearly recognising himself to be a significant witness to what occurred. I find it relatively unsurprising in the circumstances that Mr Dimarelis acted for a time with a considerable degree of self-interest. His actions in assisting Mr Fazlilar to evade justice were entirely coextensive with self-preservation. The fact that his assessment of the situation that confronted him was clouded with confusion is in the circumstances a neutral consideration.
I have indicated that in my opinion the firearms offence is not objectively serious. It was committed over a short period of time for no financial gain and not as part of some then existing criminal activity or enterprise. There does not appear to be any rational or reasonable explanation for what Mr Dimarelis did in fetching the gun apart from ignorance or stupidity or both.
The accessory charge is the more serious. It is entirely explicable. It is, however, largely characterised by or made up of the telling, and continually thereafter asserting the truth of, a series of lies to the police about what Mr Dimarelis knew of the events at the hotel room when the shooting occurred. The significant exception to that is the assistance given by Mr Dimarelis to Ms King in her actions in extending the occupancy of the room for the related purposes of removing incriminating material within it. As I have earlier indicated, I exclude from that analysis any finding that Mr Dimarelis was involved in or had any knowledge of the removal of the gun from the room following the shooting.
Elias Dimarelis, for the offence on 13 November 2015, at Potts Point in the State of New South Wales, of giving possession of a firearm to Hassan Fazlilar, who did not possess a firearm licence or permit, contrary to s 50B of the Firearms Act 1906, I sentence you to a fixed term of 12 months imprisonment commencing on 6 March 2016 and expiring on 5 March 2017.
Elias Dimarelis, for the offence of receiving, harbouring, maintaining and assisting Hassan Fazlilar between 14 November 2015 and 26 November 2015, knowing him to have committed the offence of murder, contrary to s 349(1) of the Crimes Act 1900, I sentence you to a term of imprisonment of 2 years commencing on 6 June 2016 with a non-parole period of 1 year and 6 months expiring on 5 December 2017 and a balance of term of 6 months expiring on 5 June 2018.
The first date upon which you will be entitled to be released on parole is 6 December 2017. I direct that you are to be released to parole at the expiration of the non-parole period.

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: 04 June 2018

At a glance

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Judgment (19 paragraphs)

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Cases Cited (7)

Cited By (2)