Di Marco & Anor, R. v

Factual and Procedural Background

On 10 January 2023, in the Crown Court at Warwick, the Appellant and a co-accused were convicted of attempted murder and sentenced to lengthy custodial terms. The Appellant received a life sentence with a minimum term of 22 years and 280 days, alongside the implementation of a previously suspended sentence. The co-accused was sentenced to an extended determinate sentence of 35 years. Another co-accused was also convicted and sentenced similarly, while a fourth individual was convicted of perverting the course of justice and sentenced to 30 months' imprisonment.

The Appellant renewed his application for leave to appeal against sentence after refusal by a single judge. The other convicted party applied for an extension of time to renew his application for leave to appeal and for a representation order, which was granted.

The factual background involves a longstanding animosity between the Appellant and the victim, who lived in a small lane with few properties. The victim had previously reported being assaulted by the Appellant, who had also made complaints about the victim’s livestock. This history included multiple police calls alleging harassment and trespass between the parties, though no charges resulted.

The dispute escalated when the victim complained to the local council about the Appellant’s business activities on the roadway. Following the Appellant’s 2021 conviction, he planned the attempted murder of the victim, enlisting the assistance of the co-accused and a third individual to carry out the attack using a firearm.

The attack occurred in early September 2021, with the victim shot twice but surviving, suffering serious injuries and long-term physical and psychological harm. The perpetrators attempted to cover up the crime afterwards.

The sentencing judge categorized the offences as extremely serious, finding all defendants to be dangerous offenders. The Appellant was identified as the principal instigator and considered more dangerous than his co-accused. The judge imposed sentences reflecting the high culpability and the permanent harm caused to the victim.

Legal Issues Presented

1. Whether the sentencing judge erred in the assessment of harm caused to the victim, particularly by accepting the victim’s personal statement without sufficient qualification.
2. Whether the judge properly classified the Appellant as more dangerous than his co-accused, justifying a life sentence.
3. Whether the sentences imposed were manifestly excessive in light of the evidence and the defendants' respective roles and histories.
4. Whether the judge correctly applied the dangerous offender test and the sentencing guidelines in determining the length and nature of the sentences.

Arguments of the Parties

Appellant's Arguments

• The judge made an erroneous assessment of harm by relying on the victim’s personal statement without properly considering medical evidence and video evidence suggesting the victim’s condition was better than stated.
• The Appellant was less dangerous than his co-accused, who were willing to commit the shooting for financial gain without any personal dispute.
• The life sentence was disproportionate, as the Appellant would not pose a risk after approximately 20 years in custody.
• The medical evidence regarding the victim’s heart condition and recovery was not adequately explored to the detriment of the defence.

Co-Accused's Arguments

• The judge overstated the level of harm caused to the victim.
• The judge erred in finding the co-accused to be dangerous offenders, as one was not sophisticated and did not pose a significant risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized the sentencing judge’s advantage in having heard the trial evidence and seen the victim’s testimony firsthand. The judge’s harm assessment, which placed the offence between the highest categories of harm in the sentencing guidelines, was deemed a permissible conclusion. The court acknowledged the judge’s consideration of both physical and psychological harm, including the victim’s genuine fear of death.

The court upheld the judge’s finding that the Appellant’s offence was more serious than his co-accused’s, given his role as the instigator, planner, and financier of the attempted murder, as well as his efforts to conceal the crime. The judge’s conclusion that the Appellant was more dangerous was supported by the facts and not subject to challenge.

Regarding the co-accused, the judge’s determination that they were dangerous offenders was justified by their willingness and ability to recruit a gunman and participate in a planned execution. The court found no error in the judge’s assessment that an extended licence period was necessary to manage the risk posed.

Overall, the court found no merit in the submissions challenging the sentences as manifestly excessive or the dangerous offender classification. The sentencing judge’s application of the relevant legal principles and guidelines was proper and reasoned.

Holding and Implications

The court REFUSED the renewed applications for leave to appeal against sentence by the Appellant and the co-accused.

The direct effect is that the original sentences imposed stand, including the life sentence for the Appellant and extended determinate sentences for the co-accused. No new precedent was established by this decision. The ruling affirms the sentencing judge’s discretion in assessing harm, dangerousness, and appropriate sentence length in cases of serious violent offences involving multiple offenders.