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Dieguez Jason v The Queen

Dieguez Jason v The Queen

Case [2008] NSWCCA 147 4 July 2008

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New South Wales
Court of Criminal Appeal

CITATION: DIEGUEZ Jason v R [2008] NSWCCA 147

HEARING DATE(S): 24 June 2008

JUDGMENT DATE:
4 July 2008

JUDGMENT OF: Bell JA at 1; Grove J at 2; Latham J at 3

DECISION: Leave to appeal refused

CATCHWORDS: SENTENCE - application for leave to appeal filed out of time - no reasonable explanation for delay - whether sentence for Supply Heroin manifestly excessive - leave refused.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes Act 1914 (Cth)

CASES CITED: Wong v R (2001) 207 CLR 584
Markarian v R (2005) 228 CLR 357
R v Stanbouli (2003) 141 A Crim R 531 ; [2003] NSWCCA 355
R v Bardo CCA 14 July 1992
R v Ozer CCA 9 November 1993
R v Depalo [2003] NSWCCA 80
R v Gip ; R v Ly [2006] NSWCCA 115
R v Keyte CCA 26 March 1986
R v Rajapaski [2001] NSWCCA 126
Dinsdale v The Queen (2000) 202 CLR 321
Ma & Pham v R [2007] NSWCCA 240
R v Vu [2003] NSWCCA 316
Lu v R [2007] NSWCCA 74
Derrington v R [2008] NSWCCA 94

PARTIES: Jason Dieguez - Applicant
Regina - Respondent

FILE NUMBER(S): CCA 2007/2891

COUNSEL: MC Ramage QC - Applicant
J Girdham - Respondent

SOLICITORS: Voros Lawyers - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3162

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

LOWER COURT DATE OF DECISION: 13 March 2007

2007/2891

BELL JA
GROVE J
LATHAM J
4 JULY 2008

Jason DIEGUEZ v REGINA

Judgment

1 BELL JA : I agree with Latham J.

2 GROVE J : I agree with Latham J

3 LATHAM J : The applicant, Jason Dieguez, seeks leave to appeal against the sentence imposed upon him on 13 March 2007 by Sides QC DCJ (the judge) following the applicant’s conviction after trial on one count of Supply Prohibited Drug (heroin). A non-parole period of 4 (four) years was imposed, with an additional term of two and a half (2.5) years.

4 The applicant faces a considerable hurdle in persuading the Court to grant leave. A Notice of Intention to Appeal was filed on 4 April 2007, expiring 4 October 2007. The applicant’s present solicitors received instructions to act on the appeal on or about 22 March 2007. It appears that the transcripts of the trial and the remarks on sentence were requested as early as 11 May 2007. By late August, those transcripts had been provided to the applicant’s solicitors. Senior counsel was briefed in late July 2007. There was no explanation provided for the failure to apply for an extension of the Notice of Intention to Appeal in these circumstances.

5 Moreover, the grounds of the application for leave to appeal and senior counsel’s submissions were provided to the applicant’s solicitors in mid February 2008, yet were not filed until 9 April 2008. No explanation is forthcoming to explain that delay.

6 For the purposes of what…

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 Dieguez Jason v The Queen

Details

AGLC: Dieguez Jason v The Queen [2008] NSWCCA 147
Case: [2008] NSWCCA 147
Decision Date: 4 July 2008

CaseChat Overview and Summary

The case of Dieguez Jason v The Queen involves the appellant, Jason Dieguez, who applied for leave to appeal against his sentence, which was imposed following his conviction for supplying heroin. The application for leave to appeal was filed outside the statutory time limit, and Dieguez provided no reasonable explanation for the delay. The central issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court was required to determine if the delay in filing the application for leave to appeal was justified and whether the sentence was excessive.

The court began by addressing the delay in filing the application for leave to appeal. It noted that the application was filed well beyond the statutory time limit, and Dieguez provided no reasonable explanation for the delay. The court found that the delay was not justified and, as a result, the application was considered out of time. Regarding the excessiveness of the sentence, the court examined the trial judge's reasons for imposing the sentence and found that they were comprehensive and well-reasoned. The court concluded that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence committed.

Given the court's findings that the application for leave to appeal was filed out of time and that the sentence was not manifestly excessive, the court refused the application for leave to appeal. The court emphasised the importance of adhering to statutory time limits and the need for a reasonable explanation for any delay in filing an application for leave to appeal. The court's decision ensures that the trial judge's sentence remains in place and that the appeal process is not unduly prolonged by unjustified delays.

Orders