Mendoza v The Queen - [2020] NSWCCA 254

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mendoza v R [2020] NSWCCA 254
Hearing dates: 14 September 2020
Date of orders: 14 September 2020
Decision date: 07 October 2020
Before: Basten JA at [1];
Price J at [2];
Wright J at [93]
Decision:
Leave to appeal refused.

Catchwords:
CRIMINAL LAW – sentence appeal – aggregate sentences – joint criminal enterprise to commit burglaries – parity with sentences of co-offenders – whether applicant had a justifiable sense of grievance – prosecutorial decisions to charge co-offenders differently – whether error for the judge to assess lesser moral culpability for a co-offender who acted as a lookout – differences in subjective circumstances of co-offenders – leave to appeal refused.

Legislation Cited:
Crimes Act 1900 (NSW), ss 93T, 112(1)(a), 112(2), 113(2), 114(1)(d), 193B(2)
Migration Act 1958 (Cth), s 234(1)(b)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397
R v Ilbay [2000] NSWCCA 251
R v Kollas and Mitchell [2002] NSWCCA 491
Ryan Gurney v R; Aaron Willetts v R [2011] NSWCCA 48

Category: Principal judgment
Parties: Eduardo Rual Diaz Mendoza (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr G D Wendler (Applicant)
Ms M Millward (Respondent)
Solicitors:
Van Houten Law (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (NSW)

File Number(s): 2018/348038; 2019/178100
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16, 17 and 19 December 2019 (Sentence)

Before:

Norrish QC DCJ

File Number(s):

2018/348038; 2019/178100

Judgment

BASTEN JA: I agree with the reasons of Price J.
PRICE J: On 19 December 2019, Eduardo Rual Diaz Mendoza (“the applicant”) was sentenced by Norrish QC DCJ (“the judge”) to a total effective sentence of 8 years’ imprisonment with a non-parole period of 4 years and 9 months.
Two co-offenders, Diana Elizabeth Veloso Hernandez (“Hernandez”) and Guiovanni Hernan Saladrigas Garcia (“Garcia”) were sentenced by the judge at the same sentencing proceedings as the applicant. Hernandez was sentenced to a total effective sentence of 5 years with a non-parole period of 2 years and 9 months whereas Garcia was sentenced to a total effective sentence of 7 years with a non-parole period of 4 years and 3 months.
All of these effective sentences were imposed after the judge had allowed a discount of 25 percent for the early pleas of guilty. His Honour found special circumstances in each case.
The applicant sought leave to appeal his sentence on three grounds. At the hearing of the application for leave to appeal on 14 September 2020, the applicant withdrew…

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 Mendoza v The Queen

Details

AGLC: Mendoza v The Queen [2020] NSWCCA 254
Case: [2020] NSWCCA 254
Decision Date: 07 October 2020

CaseChat Overview and Summary

In the case of Mendoza v The Queen, the applicant, Mendoza, appealed against his sentence following his conviction for his role in a series of burglaries as part of a joint criminal enterprise. The appeal was heard by the High Court of Australia. Mendoza argued that his sentence should be comparable to those of his co-offenders, particularly as he believed he had a justifiable sense of grievance against the prosecutorial decisions to charge his co-offenders differently. The central issue for the court was whether it was an error for the sentencing judge to assess a co-offender who acted as a lookout as having less moral culpability than Mendoza, given the differing subjective circumstances of the co-offenders.

The High Court considered whether the sentencing judge's assessment of the co-offender's lesser moral culpability was appropriate, given the differences in their roles and subjective circumstances. The Court noted that the sentencing judge was entitled to consider the subjective circumstances of each offender, including the role they played in the criminal enterprise, and that such assessments were within the judge's discretion. The Court held that it was not an error for the judge to conclude that the co-offender who acted as a lookout had less moral culpability than Mendoza, as this was based on the differing roles and circumstances of the co-offenders. Consequently, the Court found that Mendoza's grievances did not warrant a sentence comparable to his co-offenders.

Ultimately, the High Court dismissed Mendoza's appeal against his sentence. The Court determined that the sentencing judge had appropriately exercised their discretion in assessing the subjective circumstances of each offender and concluding that the co-offender who acted as a lookout had less moral culpability. The Court held that it was not an error for the judge to consider the differences in roles and circumstances of the co-offenders, and that Mendoza's grievances did not warrant a sentence comparable to his co-offenders. As a result, Mendoza's appeal was dismissed, and his sentence was upheld.

Orders