Diaz v R

Case [2018] NSWCCA 33 14 March 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Diaz v R [2018] NSWCCA 33
Hearing dates: 5 February 2018
Date of orders: 14 March 2018
Decision date: 14 March 2018
Before: Payne JA [1]
Garling J [2]
Hidden AJ [8]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – aggravated kidnapping – sexual intercourse without consent – related matters on Form 1 – domestic violence – record of similar offences - challenge to sentencing judge’s assessment of objective gravity of aggravating kidnapping – whether sentences manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Alkanaan v R [2017] NSWCCA 56
Diaz v R [2013] NSWCCA 277
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
House v The King (1936) 55 CLR 499
Hurst v R [2017] NSWCCA 114
Ibbs v The Queen (1987) 163 CLR 447
Mulato v R [2006] NSWCCA 282
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Hibberd [200] NSWCCA 20; (2009) 194 A Crim R 1
R v Newell [2004] NSWCCA 183
R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
Veen v The Queen [No. 2] (1987-88) 164 CLR 465
Category: Principal judgment
Parties: Regina (Respondent)
Rodrigo Phillip Diaz (Applicant)
Representation:
Counsel:
E Balodis (Crown)
Ms S Kluss (Applicant)
Solicitors:
Solicitor for Director of Public Prosecutions
Legal Aid Commission NSW

File Number(s): 2015/277699
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 October 2016

Before:

Acting Judge Delaney

File Number(s):

2015/277699

Judgment

PAYNE JA: I agree with the reasons of Hidden AJ and the order he proposes. I also agree with the additional remarks of Garling J.
GARLING J: I agree with the orders proposed by Hidden AJ and with his reasons.
I desire to add some comments. In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (with whom Studdert and Bell JJ agreed) said at 558 [41] of violent attacks in domestic settings this:

“Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth, such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

Having regard to the fact that these offences were committed whilst the applicant was on parole for similar, but more serious, offences of domestic violence upon a different victim, any sentence which was imposed needed to pay close attention, and give significant weight, to specific deterrence.
The nature of these offences, being of domestic violence…

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 [2018] NSWCCA 33
Case: [2018] NSWCCA 33
Decision Date: 14 March 2018

CaseChat Overview and Summary

Diaz appealed against his conviction and sentence for aggravated kidnapping and sexual intercourse without consent. The case was heard in the High Court of Australia. Diaz argued that the sentences imposed were manifestly excessive due to the sentencing judge’s assessment of the objective gravity of the aggravating kidnapping. The appeal also questioned the consideration of related matters on Form 1, domestic violence, and the record of similar offences.

The central legal issue was whether the sentences imposed by the sentencing judge were manifestly excessive. The court considered whether the sentencing judge appropriately assessed the objective gravity of the aggravating kidnapping and whether the related matters on Form 1, domestic violence, and the record of similar offences were adequately considered. The appeal also questioned whether the sentences imposed were so excessive that they could not be justified.

The court found that the sentencing judge had appropriately assessed the objective gravity of the aggravating kidnapping. The court determined that the sentences were not manifestly excessive. The court considered the totality of the circumstances, including the nature and circumstances of the offences, the character of the offender, and the need for deterrence and denunciation. The court held that the sentences were proportionate to the gravity of the offences and took into account all relevant factors.

The appeal was dismissed, and the original sentences were affirmed.

Orders