Regina v Diab [2005] NSWCCA 341

New South Wales Court of Criminal Appeal

CITATION: Regina v Diab [2005] NSWCCA 341

HEARING DATE(S): 6 September 2005

JUDGMENT DATE: 28 September 2005

JUDGMENT OF: at 1; Grove J at 2; Smart AJ at 3

DECISION: Leave to appeal granted. Appeal against sentence dismissed.

CATCHWORDS: Multiple dishonesty offences - errors in application of s 21A of Crimes (Sentencing Procedure) Act - insufficient allowance for special circumstances - despite errors no lesser sentences warranted in law

Crimes (Sentencing Procedure) Act 1999. LEGISLATION CITED: Criminal Appeal Act 1912.

R v di Gregorio [2004] NSWCCA 9 R v Street [2005] NSWCCA 139 R v Suaalii [2005] NSWCCA 206 CASES CITED: R v Tadrosse [2005] NSWCCA 145 R v Tobar [2004] NSWCCA 391 R v Way (2004) 60 NSWLR 168

PARTIES: Regina v John Diab

FILE NUMBER(S): CCA 2005/1043

(A) G Bashir COUNSEL: (C) J Bennett

(A) S E O'Connor SOLICITORS: (C) S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0168

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1043 CCAP

MCCLELLAN CJ AT CL GROVE J SMART AJ Wednesday, 28 September 2005

Regina v John DIAB

1. McCLELLAN CJ AT CL: I agree with Smart AJ

2. GROVE J: I agree with Smart AJ.

3. SMART AJ: John Diab seeks leave to appeal against the following sentences in respect of these offences:

Count Date of Offence Sentence of Imprisonment offence 1 29/10/03 Break and enter Fixed term of 1 year 6 months from 17/5/04 to 16/11/05 with intent to steal 2 10/12/03 Enter building Fixed term of 1 year from 17/11/04 to 16/11/05 with intent to steal 3 10/12/03 Larceny Fixed term of 6 months from 17/11/04 to 16/5/05 4 4/4/04 Break and enter Non-parole period of 1 year 9 months from 17/3/05 to 16/12/06 Balance of term of 12 months from 17/12/06 to 16/12/07 with with intent to steal taking into account one count of larceny