Diri v The Queen - [2019] NSWCCA 319

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Diri v R [2019] NSWCCA 319
Hearing dates: 9 December 2019
Date of orders: 23 December 2019
Decision date: 23 December 2019
Before: Macfarlan JA at [1]
Davies J at [2]
Hidden AJ at [69]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal in respect of ground 2.
(3) Quash the sentence imposed by Judge Craigie SC in the District Court on 12 April 2019. In lieu, sentence the applicant to an aggregate sentence of two years nine months’ imprisonment commencing 12 July 2018 and expiring 11 April 2021 with a non-parole period of one year nine months expiring 11 April 2020. The appellant will be eligible for parole from 11 April 2020.
(4) Otherwise dismiss the appeal.

Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to two drug supply offences – further offences taken into account on sentence – applicant made nine separate supplies to undercover police operatives – seven of the supplies involved methylamphetamine and two involved inert substances – where the sentencing judge assessed the objective seriousness of the offending collectively – where the parties had made submissions on the objective seriousness of the offending collectively – sentencing judge made reference to the relevant matters in assessing the objective seriousness of the offending – no error shown – whether the sentencing judge erred in fixing the commencement date of the sentence – where the commencement date did not accord with the sentencing judge’s decision to backdate the sentence – error demonstrated – no need to engage in the resentencing exercise
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 11
Cases Cited: Daher v R [2018] NSWCCA 287
Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581
Gordon v R [2018] NSWCCA 54
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Lyons v R [2017] NSWCCA 204
Mulato v R [2006] NSWCCA 282
R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63
R v Kijurina [2017] NSWCCA 117
R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47
R v Yaghi [2002] NSWCCA 396; (2002) 133 A Crim R 490
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Texts Cited: Nil
Category: Principal judgment
Parties: George Diri (Applicant)
Crown (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
M Millward (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/335171
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

12 April 2019

Before:

Craigie SC DCJ

File Number(s):

2016/335171

Judgment

MACFARLAN JA: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Local Court to the following two offences:

Sequence 1. Supply prohibited drug…

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 Diri v The Queen

Details

AGLC: Diri v The Queen [2019] NSWCCA 319
Case: [2019] NSWCCA 319
Decision Date: 23 December 2019

CaseChat Overview and Summary

The appellant, Diri, appealed against the sentence imposed by the sentencing judge following a guilty plea to two drug supply offences. The case was heard in the Court of Appeal. Diri had made nine separate supplies to undercover police operatives, with seven involving methylamphetamine and two involving inert substances. The appeal centred on two main issues: the assessment of the objective seriousness of the offending and the commencement date of the sentence. The Court of Appeal was required to determine whether the sentencing judge had erred in the overall assessment of the objective seriousness of the offending and whether there was an error in the fixing of the sentence's commencement date.

The Court of Appeal found that the sentencing judge had correctly assessed the objective seriousness of the offending by considering all relevant matters. The submissions made by both parties on the objective seriousness of the offending were taken into account, and the sentencing judge's reference to the relevant matters was deemed appropriate. Therefore, no error was demonstrated in the assessment of the objective seriousness of the offending. However, the Court of Appeal identified an error in the fixing of the sentence's commencement date. The sentencing judge's decision to backdate the sentence did not align with the stated commencement date, indicating a discrepancy that warranted correction.

Given the demonstrated error in the fixing of the sentence's commencement date, the Court of Appeal concluded that there was no need to engage in the resentencing exercise. The Court found that the error was sufficiently significant to warrant a correction, but the overall assessment of the objective seriousness of the offending remained valid. The appeal was thus partially upheld, and the sentence was amended to correct the commencement date. The final orders reflected the Court of Appeal's decision to amend the sentence without requiring a full resentencing process.

Orders