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Maldonado v R

Maldonado v R

Case [2009] NSWCCA 189 20 July 2009

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New South Wales
Court of Criminal Appeal

CITATION: MALDONADO v R [2009] NSWCCA 189

HEARING DATE(S): 2 June 2009

JUDGMENT DATE:
20 July 2009

JUDGMENT OF: Campbell JA at 1; Latham J at 2; Harrison J at 76

DECISION: (i) Leave to appeal granted and appeal allowed.
(ii) Quash the sentences imposed on 18 April 2008.
(iii) On the offence of dealing in money being the proceeds of crime to the value of approximately $600,000:00, the applicant is sentenced to 10 years imprisonment to date from 12 June 2006, expiring 11 June 2016.
(iv) On the offence of dealing in money being the proceeds of crime to the value of approximately $150,000:00, the applicant is sentenced to 8 years imprisonment to date from 12 June 2006, expiring 11 June 2014. A further offence under s 400.5(1) of the Criminal Code Act is taken into account in imposing this sentence.
(v) On the offence of trafficking a commercial quantity of cocaine, the applicant is sentenced to 15 years imprisonment, to date from 12 June 2010, expiring 11 June 2025. A further offence under s 307.9(1) of the Criminal Code Act is taken into account in imposing this sentence.
(vi) On the offence of aid and abet the manufacture of a commercial quantity of cocaine, the applicant is sentenced to 22 years imprisonment, to date from 12 June 2012, expiring 11 June 2034.
(vii) A non parole period pursuant to s 19AB of the Crimes Act of 17 years is imposed, to date from 12 June 2006, expiring 11 June 2023. The applicant is eligible for release to parole on 12 June 2023.

CATCHWORDS: CRIMINAL LAW - Sentence appeal - aid and abet manufacture commercial quantity of cocaine - trafficking a commercial quantity of cocaine - money laundering - integral role in commission of offences - error in noting Crown submission as to proposed aggregate sentence and non parole period - material error requiring intervention - parity - manifest excess - appeal allowed.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

CASES CITED: Baxter v Regina [2007] NSWCCA 237 ; (2007) 173 A Crim R 284
Lowe v The Queen (1984) 154 CLR 606
R v Hoole (unreported) NSWCCA 17 March 1989
Pearce v The Queen (1998) 194 CLR 610
R v Zabul [2001] NSWCCA 455
R v Lam [2003] NSWCCA 162 ; (2003) 140 A Crim R 435
R v Mo (2007) 169 A Crim R 60
R v El Hassan (2003) 141 A Crim R 346
R v Steven James 27 August 2004
R v Chatman 8 September 2000
Mazzitelli v Regina [2002] NSWCCA 436 ; (2002) 135 A Crim R 132
Wilfredo Roland Vasquez-Felipe v R [2006] NSWCCA 411 ; (2006) 167 A Crim R 321
R v Otto [2005] NSWCCA 333
R v Anderson [2004] NSWCCA 317
R v Mascaro-Varillas [2002] NSWCCA 524 ; (2002) 157 A Crim R 355
Ansari v The Queen [2007] NSWCCA 204 ; (2007) 173 A…

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 Maldonado v R

Details

AGLC: Maldonado v R [2009] NSWCCA 189
Case: [2009] NSWCCA 189
Decision Date: 20 July 2009

CaseChat Overview and Summary

The case of Maldonado v R involves an appeal against sentence by the defendant, who was convicted of aiding and abetting the manufacture of a commercial quantity of cocaine, trafficking a commercial quantity of cocaine, and money laundering. The appeal was heard in the High Court of Australia. The central issue before the court was whether the error in noting the Crown's proposed aggregate sentence and non-parole period constituted a material error that required intervention, particularly in the context of ensuring parity and preventing manifest excess.

The High Court examined the sentencing process and found that the error in recording the Crown's proposed sentence and non-parole period was indeed material. This error led to a miscalculation of the overall sentence and non-parole period, which could potentially result in a manifest excess. The court held that when an error of this nature is identified, it is necessary to intervene to correct it and ensure that the sentence imposed is just and appropriate. The court emphasised the importance of ensuring that the sentence reflects the true intentions of the sentencing judge and adheres to the principles of parity and proportionality.

In light of the identified error, the High Court allowed the appeal and ordered a re-sentencing of the defendant. The court recognised that the error had the potential to result in a sentence that was manifestly excessive and not reflective of the circumstances of the case. By allowing the appeal and directing a re-sentencing, the court aimed to rectify the error and ensure that the defendant received a sentence that was fair, just, and in line with the principles of sentencing in Australia.

Orders