Serial Sex Offender’s Sentence Reduced Due to Judge’s Error

A DNA profile taken from Michael Dimian in September 2013 matched the sperm fraction of two swab samples taken from the victim of a 1993 rape case. Mr Dimian had already been convicted of several other sexual assaults and was serving time when the profile was taken.

On 26 March 2015, Mr Dimian pleaded guilty in Parramatta District Court to one count of detain for advantage and cause substantial injury, and one of aggravated sexual assault. The sexual assault was aggravated due to the fact that it involved the infliction of grievous bodily harm.

Both offences carry a maximum penalty of 20 years imprisonment.

District Court Judge Mark Williams SC sentenced Mr Dimian on 17 April 2015 to an indicative sentence of two years for detain for advantage, and five years and six months for the aggravated sexual assault. The judge then imposed an aggregate (full term) sentence of nine years imprisonment, with a non-parole period (minimum sentence) of six years.

Mr Dimian appealed the severity of the sentence to the NSW Criminal Court of Appeal (NSWCCA) on 24 August last year. He did so on an initial two grounds.

The first ground was that Judge Williams had made an error when “imposing an aggregate sentence that exceeded the sum of the indicative sentences.” Mr Dimian’s lawyers argued that when imposing the sentence, the judge had failed to take into account the principle of totality, meaning the aggregate sentence must be “just and appropriate” when taking into account the overall offending conduct.

Impersonating a police officer

Just before midnight on 2 April 1993, a 31-year-old woman attended Crescent Hotel in Fairfield to meet with some friends. The woman was at the bar when Mr Dimian approached her. He struck up a conversation, and then offered to drive her home.

The woman initially refused the lift, but later accepted after Dimian repeatedly assured her that she would be safe because he was a police officer.  But he wasn’t a police officer, he was actually the store manager at a Norman Ross outlet.

After getting into his red Holden Commodore, the woman became suspicious when Mr Dimian took a different turn at a roundabout in the opposite direction to her home. Dimian then drove her into parkland at Fairfield Showground.

A vicious attack

The woman demanded to be taken back and, after Dimian refused, she tried to get out of the car. The two struggled. Dimian pulled at her hair to prevent her from getting away, whilst she scratched at his face. The woman then said she had to go to the toilet, and they both got out.

The woman tried several times to get away. But her efforts were in vain, as her assailant repeatedly threw her to the ground. Dimian then demanded that she perform oral sex upon him, but she refused saying she would rather die.

Mr Dimian then forcefully penetrated his victim’s vagina both digitally and with his penis.

After the horrendous attack, Dimian offered to drive the woman home, but she refused. Eventually, she waved down a taxi and was taken to Wetherill Park police station.

On examination at Liverpool Hospital, the woman was found to have suffered 32 bruises, abrasions and scratches, as well as serious injuries to her genital area.

Subsequent offending

Dimian was not satisfied with his conquest, and continued to sexually assault females. On 26 June 1993, he committed an aggravated sexual assault on a 14-year-old girl for which he was sentenced to a non-parole period of two years and four months. This term concluded on 22 July 2000.

In July 1996, he committed a further offence of sexual intercourse upon a child aged ten to 16 years.

The serial rapist sexually assaulted two other women in October 2002. He was arrested and charged for these offences at later dates, and was ultimately sentenced to terms of imprisonment on different court dates.

A psychologist’s appraisal

The most recent psychological report to go before the sentencing judge was by Mr Yat Sang Cheung, dated 12 April 2015.

It was Mr Cheung’s opinion that Dimian suffered from manic depression, general anxiety and post-traumatic stress disorder. He also found Dimian to be in the moderate to high risk category for sexual reoffending.

Further appeal grounds

Two days before his appearance in the NSWCCA, Mr Dimian’s lawyers added several additional grounds of appeal.

They submitted that the sentencing judge had failed to consider an appropriate sentence with regards to his history of incarceration. They argued that the sentence imposed resulted in a non-parole period of 85 percent of the overall term, when taking into account his previous sentences, which was well above the statutory ration of two-thirds.

They additionally submitted that the sentencing judge had failed to take into account the delay in sentencing for the present offence, which they said was a factor in mitigation.

In the NSWCCA

Justice Mark Davies handed down the NSWCCA’s judgment on 17 October last year. The court allowed the appeal on the basis that an aggregate sentence cannot exceed the sum of indicative sentences.

The court noted that Dimian had constantly been in custody since 18 February 2003, and when including the sentence being appealed, it meant that he would be serving a 17 year non-parole period, which was 85 percent of his overall sentences taken together.

The court took into account the likelihood that Dimian would become institutionalised due to his long period of incarceration. The interests of community safety had to be weighed up against his prospects for rehabilitation.

The overall sentence remains the same

The NSWCCA found that the overall sentence should remain at nine years, and the non-parole period should be adjusted to commence at an earlier date than the sentencing judge had applied.

Justice Davies also noted that the evidence from the psychologist showed that “some progress to rehabilitation” had been made, but acknowledged that it was “clear that it had some distance to go.”

His Honour quashed the original sentence, and resentenced Dimian to a non-parole period of four years and six months, backdated to 17 February 2013. He also applied an additional term of four and a half years.

“The need for the lower non-parole period and the increased concurrency with the prior sentence arises only because of a proper application of the principle of totality,” his Honour outlined and added that this sentence “provides a reasonable period on parole to assist in rehabilitation.”