R v Dimarelis

1. [1]

   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.

2. [2]

   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

1. [3]

   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.

2. [4]

   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.

3. [5]

   Hasan Fazlilar was a known associate of Mr Dimarelis. He frequented The Love Machine.

4. [6]

   In the early hours of Friday 13 November 2015, Mr Mileham met with Mr Dimarelis, Mr Fazlilar and Ms King and socialised with them at The Love Machine. Shortly thereafter, at Mr Fazlilar’s request, Mr Dimarelis retrieved a .38 calibre revolver from somewhere within the premises and handed it to Mr Fazlilar. Mr Fazlilar proceeded to put the gun down the front of his trousers.

5. [7]

   At 8.44pm that day, Mr Mileham and Ms King registered at the Fraser Suites in Kent Street and went to room 3109. The room was booked in the name of Mr Mileham. They then went to a bar in George Street before taking a taxi back to The Love Machine at approximately 10pm.

6. [8]

   In the early hours of Saturday 14 November 2015, Mr Mileham, Mr Fazlilar, Mr Dimarelis and Ms King, together with another person, socialised inside The Love Machine. Shortly after 6am, these people moved to room 3109 at the Fraser Suites. The safe in that room was opened and locked at about 6.18am. This happened again at about 11.30am.

7. [9]

   Shortly after 3pm, Mr Fazlilar examined Mr Mileham’s mobile phone and detected a contact saved in that phone described as “Police Crime 1800 333 000”. Mr Fazlilar then became enraged and between 3.38pm and 3.57pm he shot Mr Mileham once with the .38 calibre firearm. Mr Dimarelis was present when this occurred. He had no prior warning of this shooting. Shortly thereafter, Mr Dimarelis left the room and caught a taxi back to The Love Machine. Mr Fazlilar remained in the room before leaving at 4.04pm. He left Mr Mileham’s body in the room, together with some ammunition. 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.

8. [10]

   Mr Dimarelis entered The Love Machine at 4.06pm and told Ms King that Mr Fazlilar had been involved in a shooting.

9. [11]

   At 6.14pm, Mr Dimarelis was involved in a meeting at The Love Machine with Ms King, Bill Bayeh, and Mikan Porcnja. The meeting was recorded on CCTV at the premises. The conversation at that meeting included the following:

10. [12]

    A meeting took place the following morning at The Love Machine commencing at approximately 5.30. Mr Dimarelis, Mr Bayeh and Ms King were present. The meeting was again captured on CCTV and the following are excerpts of what was said:

11. [13]

    Mr Dimarelis, Ms King and Mr Fazlilar were by now concerned about items that remained in room 3109 at the Fraser Suites. A decision was made to extend the period of the occupancy of the room in order to give Mr Fazlilar and Ms King time in which to clear the room. At 7.30am, Mr Dimarelis and Ms King left The Love Machine and drove to Mr Fazlilar’s apartment in Redfern looking for him. They arrived there at 7.51am. Ms King phoned the Fraser Suites using Mr Dimarelis’ phone and extended the occupancy for room 3109 until 11am on Monday 16 November 2015.

12. [14]

    At 10.54am Ms King completed the booking process at the Fraser Suites to extend the occupancy of the room. Mr Dimarelis was aware of this. At 8.45pm Mr Dimarelis sent a text message to Mr Fazlilar that said “all sweet”. That was a message intended to convey the fact that the room occupancy had been extended.

13. [15]

    In the early hours of Monday morning, Ms King went to room 3109 with a distinctive bag containing images of the Eiffel Tower. She did this with the knowledge of Mr Dimarelis. Ms King went into the room at 2.46am and left it three minutes and twenty seconds later. Ms King returned to Mr Dimarelis who was waiting for her at Charlie Chan’s Bar in George Street. There is a dispute between the parties about what Ms King removed from the safe in room 3109 and what she said to Mr Dimarelis after she left the room. They then drove to Mr Fazlilar’s apartment at Redfern. He was not there at that time.

14. [16]

    At 4.19am on 16 November 2015, Mr Dimarelis met Mr Fazlilar outside the Madison Hotel by prior arrangement. They spoke in a nearby lane for about two minutes. They returned to the hotel. About 12 minutes later, Mr Dimarelis and Ms King walked out of the Madison Hotel. Ms King was carrying the Eiffel Tower bag. They both drove from there to The Love Machine in a rented car.

15. [17]

    At 4.55am, Mr Fazlilar left a voicemail message on Ms King’s phone asking “What’s going on? I’m really worried.” Ms King left The Love Machine at 5.57am carrying the Eiffel Tower bag and drove to Glebe with Mr Fazlilar and another person.

16. [18]

    Mr Dimarelis called the ambulance service on 000 from a public phone at Burwood at 6.14am. He said this to the operator:

17. [19]

    Mr Dimarelis’ call to 000 was made 38 hours and 20 minutes after Mr Mileham was shot and Mr Dimarelis left the room. Police attended the room at 6.56am and found a quantity of ammunition in the opened safe. Forty five minutes later Ms King entered The Love Machine in possession of the Eiffel Tower bag. Mr Dimarelis was there at that time. He left at 10.39am.

18. [20]

    Mr Fazlilar sent what appear to be threatening text messages to Mr Dimarelis at 8.13am and 8.22am.

19. [21]

    Ms King left The Love Machine carrying a shoulder bag containing the Eiffel Tower bag at 11.17am on that morning. She and Mr Dimarelis went to Mr Fazlilar’s Redfern apartment a short time later. Mr Fazlilar was there at this time. There is a dispute between the parties about what occurred at this meeting.

20. [22]

    Mr Mileham’s mobile phone was handed in to the police by a member of the public on Wednesday 18 November 2015, having been found two days earlier in the gutter on Phillip Street, Redfern.

21. [23]

    The police attended The Love Machine on 19 November 2015 and spoke with Mr Dimarelis. He did not disclose any information to the police at this time.

22. [24]

    On 24 November 2015 the police lawfully intercepted communications on Mr Dimarelis’ mobile phone. They executed a search warrant at Mr Fazlilar’s apartment on 26 November 2015 and there found the Eiffel Tower bag. It contained traces of DNA consistent with the DNA of Ms King. Mr Dimarelis provided a statement to the police the same day in which he made the following false assertions:

23. [25]

    Mr Dimarelis was arrested on 12 January 2016. He was charged with being an accessory after the fact to the murder of Mr Mileham. He declined to be interviewed. He was rearrested on 29 March 2016 and charged with the firearms offence. He participated in an electronically recorded interview. He agreed that he carried the firearm from The Love Machine. With respect to his handing the weapon to Mr Fazlilar, Mr Dimarelis said:

24. [26]

    In relation to the murder of the deceased Mr Dimarelis said:

Induced statement

1. [27]

   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.

Disputed matters

1. [28]

   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.

2. [29]

   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”.

3. [30]

   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.

4. [31]

   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;

5. [32]

   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.

6. [33]

   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.

7. [34]

   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:

8. [35]

   Paragraph 41 of the statement is in the following relevant terms:

9. [36]

   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:

10. [37]

    Finally for present purposes, Mr Dimarelis said this at paragraph 50:

11. [38]

    Mr Dimarelis gave evidence before me. He was cross-examined on this issue by the Crown as follows;

12. [39]

    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.

13. [40]

    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.

14. [41]

    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.

15. [42]

    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.

16. [43]

    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.

17. [44]

    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.

18. [45]

    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.

Objective seriousness

1. [46]

   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:

2. [47]

   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. (1)

      After witnessing Mr Fazlilar shoot Mr Mileham, he failed to notify the police and emergency services.

   2. (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. (3)

      He agreed with Ms King to extend the room occupancy for another night and assisted her to do so.

   4. (4)

      He lied to the police about what had taken place in the room around the time of the murder.

3. [48]

   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.

4. [49]

   It is nowhere suggested that Mr Dimarelis anticipated what occurred or that he should have foreseen that Mr Mileham would be shot.

5. [50]

   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.

6. [51]

   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.

7. [52]

   Mr Lloyd submitted that the objective criminality of this offence fell at the lowest level for the following reasons:

   1. (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. (2)

      The physical acts concerned in retrieving and delivering the firearm to Mr Fazlilar occurred over a short period of time.

   3. (3)

      The acts were not performed for reward or other pecuniary advantage.

   4. (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. (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.

8. [53]

   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?

9. [54]

   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’”.

10. [55]

    In Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97, Simpson J explained:

11. [56]

    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.

12. [57]

    In R v Najem (2008) NSWSCCA 32, the Court considered that:

13. [58]

    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.

14. [59]

    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]:

15. [60]

    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.

16. [61]

    I consider that this offence lies well within the lower end of the range of objective seriousness for offences of this kind.

Subjective circumstances

1. [62]

   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.

2. [63]

   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.

3. [64]

   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.

4. [65]

   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.

5. [66]

   In relation to the shooting of Mr Mileham, Dr Furst obtained the following account from Mr Dimarelis:

6. [67]

   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.

7. [68]

   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

1. [69]

   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.

2. [70]

   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.

3. [71]

   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.

4. [72]

   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

1. [73]

   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.

2. [74]

   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.

3. [75]

   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

1. [76]

   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

1. [77]

   Mr Dimarelis gave evidence in the following terms:

2. [78]

   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

1. [79]

   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

1. [80]

   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.

2. [81]

   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

1. [82]

   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

1. [83]

   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

1. [84]

   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

1. [85]

   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.

2. [86]

   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.

3. [87]

   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.

4. [88]

   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.

5. [89]

   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.

6. [90]

   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.