Diaz v R

Case [2019] NSWCCA 216 13 September 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Diaz v R [2019] NSWCCA 216
Hearing dates: 5 July 2019
Decision date: 13 September 2019
Before: Gleeson JA at [1]
Button J at [4]
Lonergan J at [94]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal upheld.
(3) The sentence imposed by M L Williams SC DCJ on 27 January 2017 is quashed.
(4) The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non-parole period of 4 years 6 months, expiring on 5 May 2020.

Catchwords: CRIME – APPEALS – appeal against sentence – application for leave to appeal – attempting to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1)) – self-represented applicant – proposed grounds devoid of merit – no assertion of Xiao error in grounds – consideration of Xiao error – Xiao error established – sentencing judge provided 25% discount for facilitation of justice – whether applicant to be resentenced – applicant resentenced afresh – 25% discount for utilitarian value of plea applied
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.1(1)
Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DPP (Cth) v Masange; DPP (Cth) v Kachunga [2017] VSCA 204
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Newman (a pseudonym) v R [2019] NSWCCA 157
Obiekwe v R [2018] NSWCCA 55
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category: Principal judgment
Parties: Luis Diaz (Applicant)
Regina (Respondent)
Representation:
Counsel:
H Ginges (Commonwealth DPP) (Respondent)
Applicant (self-represented)
Solicitors:
Commonwealth Directors of Public Prosecutions (Respondent)

File Number(s): 2015/327238
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 January 2017

Before:

M L Williams SC DCJ

File Number(s):

2015/327238

Judgment

GLEESON JA: I agree with Button J for the reasons given by his Honour that the four grounds of appeal advanced by the applicant are without merit.
I also agree with Button J that although not expressly raised by the applicant’s grounds of appeal, there is error on the face of the reasons of the sentencing judge who did not consider the matter identified in s 16A(2)(g) of the Crimes Act 1914 (Cth) in the manner stated by this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. To be fair to the sentencing judge, the decision in Xiao was delivered after the sentencing judge had delivered his decision. This Court held in Xiao at [278] that a sentencing judge is entitled to take the utilitarian value of a plea of guilty into account in sentencing. Here, notwithstanding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Diaz v R

Details

AGLC: Diaz v R [2019] NSWCCA 216
Case: [2019] NSWCCA 216
Decision Date: 13 September 2019

CaseChat Overview and Summary

The appellant, Diaz, appealed against his sentence for attempting to import a commercial quantity of a border controlled drug, in contravention of the Criminal Code Act 1995 (Cth). The appeal was heard by the High Court of Australia, which was asked to determine whether the appellant was entitled to leave to appeal and, if so, whether the appeal against his sentence should succeed. Diaz was self-represented in the appeal and the proposed grounds of appeal were considered to be devoid of merit. However, the Court considered whether there was a Xiao error in the sentencing proceedings.

The central legal issue before the Court was whether there was a Xiao error in the sentencing proceedings. The Court noted that Diaz had not explicitly asserted a Xiao error in his grounds of appeal, but the Court considered the issue in any event. The Court found that there was indeed a Xiao error in the proceedings, as the sentencing judge had provided a 25% discount for the facilitation of justice, which was not a permissible consideration in determining the sentence. The Court held that the appellant should be resentenced afresh, with the 25% discount for the utilitarian value of the plea applied.

In its judgment, the Court held that Diaz was entitled to leave to appeal and that the appeal against sentence should succeed. The Court resentenced Diaz afresh, taking into account the 25% discount for the utilitarian value of his plea. The Court did not provide further details on the specifics of the resentence. This decision highlights the importance of ensuring that all relevant considerations are taken into account in sentencing proceedings, and that any errors are corrected on appeal.

Orders