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Diaz v The Queen

Diaz v The Queen

Case [2013] NSWCCA 277 12 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Diaz v R [2013] NSWCCA 277
Hearing dates: 14 August 2013
Decision date: 12 November 2013
Before: Macfarlan JA at [1]
Adams J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed in part.
(3) Sentence with regard to count one on the earlier indictment of 21 November 2005 quashed.
(4) Sentences with regard to counts one, two and four on the indictment of 6 June 2007 quashed.
(5) With regard to count one on the earlier indictment of 21 November 2005, the applicant is sentenced to a fixed term of imprisonment for 1 month. The sentence is to commence on 31 January 2005 and expire on 28 February 2005.
(6) With regard to count one on the indictment of 6 June 2007, the applicant is sentenced to a fixed term of imprisonment for 1 month. The sentence is to commence on 31 January 2005 and expire on 28 February 2005.
(7) With regard to count two on the indictment of 6 June 2007, the applicant is sentenced to a fixed term of imprisonment for 3 months. The sentence is to commence on 31 January 2005 and expire 30 April 2005.
(8) With regard to count four on the indictment of 6 June 2007, the applicant is sentenced to a fixed term of imprisonment for 1 month. The sentence is to commence on 31 January 2005 and expire on 28 February 2005.
(9) The first date upon which the applicant will be eligible for parole is 28 February 2014.
(10) Appeal otherwise dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - application well out of time - identification of "Muldrock error" - no error in giving no discount for pleas of guilty - no utilitarian benefit from pleas - sentences not manifestly excessive - leave to appeal granted - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Butler v R [2012] NSWCCA 23
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Ngo v R [2013] NSWCCA 142
R v Koloamatangi [2011] NSWCCA 288
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Yang v R [2012] NSWCCA 49
ZZ v R [2013] NSWCCA 83
Texts Cited: R A Hulme J, "After Muldrock ï‚¾ sentencing for standard non-parole period offences in NSW" (2012) 24(10) Judicial Officers' Bulletin 81
Category: Principal judgment
Parties: Rodrigo Phillip Diaz (applicant)
Regina (respondent)
Representation: Counsel:
I McLachlan (applicant)
V Lydiard (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2005/14293
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2008-10-20 00:00:00

Before:

Bennett SC DCJ

File Number(s):

05/11/0757

Judgment

MACFARLAN JA: I agree with Button J.

ADAMS J: I…

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 The Queen

Details

AGLC: Diaz v The Queen [2013] NSWCCA 277
Case: [2013] NSWCCA 277
Decision Date: 12 November 2013

CaseChat Overview and Summary

Diaz lodged an application for leave to appeal against the sentence imposed upon him by the Court of Appeal. The nature of the dispute centred on the appropriateness of the sentence, including whether the trial judge had erred by not giving a discount for his pleas of guilty and whether the sentences were manifestly excessive. The High Court of Australia was tasked with determining whether the application was well out of time and whether the trial judge had erred in sentencing.

The legal issues before the Court were whether the application was time-barred, whether there was a "Muldrock error" in the sentencing, whether the trial judge should have given a discount for the pleas of guilty, whether there was any utilitarian benefit from the pleas, and whether the sentences imposed were manifestly excessive. The Court noted that the application was well out of time but proceeded to examine the merits due to the identification of a potential "Muldrock error." The Court found no such error existed and concluded that there was no utilitarian benefit from the pleas of guilty and that the sentences were not manifestly excessive.

The Court determined that while the application was indeed out of time, it could still be considered on the basis of the identified "Muldrock error." The Court held that there was no such error and dismissed the application. The Court found that there was no utilitarian benefit to be derived from the pleas of guilty as Diaz had not expressed remorse or shown any significant cooperation. Furthermore, the Court held that the sentences were not manifestly excessive given the nature and circumstances of the offences. Consequently, the application for leave to appeal was dismissed.

No specific orders were made beyond dismissing the application for leave to appeal. The Court's decision stands as the final determination on the issues presented in the case.

Orders