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Ortiz v The Queen

Ortiz v The Queen

Case [2014] NSWCCA 260 10 November 2014

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Court of Criminal Appeal

New South Wales

Case Title: Ortiz v R

Medium Neutral Citation: [2014] NSWCCA 260

Hearing Date(s): 27 October 2014

Decision Date: 10 November 2014

Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Davies J at [65]

Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - accessory before the fact to robbery in company - Form 1 procedure - totality not applicable - criminal history of co-offender did not warrant greater disparity in sentence

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v AEM [2002] NSWCCA 58
R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Lemene [2001] NSWCCA 5; 118 A Crim R 131
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Wong v The Queen [2001] HCA 64; 207 CLR 584

Category: Principal judgment

Parties: Armando Salinas Ortiz (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr T Gartelmann (Applicant)
Ms J Girdham SC (Crown)

- Solicitors: Solicitors:
Legal Aid (NSW)
Solicitor for Public Prosecutions

File Number(s): 2012/195297

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Norrish QC DCJ

- Date of Decision: 22 August 2013

- Court File Number(s): 2012/195297

JUDGMENT

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: Armando Salinas Ortiz (the applicant) was sentenced by his Honour Judge Norrish QC in the District Court at Sydney on 22 August 2013 for two offences of being an accessory before the fact to robbery in company that were committed on 30 May and 12 June 2012.
The offences are contrary to ss 97(1) and 346 of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years.
For the offence committed on 30 May 2012 the sentence was a fixed term of imprisonment for 3 years and 9 months with effect from 21 June 2012. For the second offence the sentence was imprisonment for 5 years and 3 months with a non-parole period of 2 years and 6 months with effect from 21 December 2013.
The total effective sentence was 6 years and 9 months with a minimum custodial component of 4 years.
The sole ground of appeal is that the applicant has a justified sense of grievance arising from a lack of due proportionality between the sentences…

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 Ortiz v The Queen

Details

AGLC: Ortiz v The Queen [2014] NSWCCA 260
Case: [2014] NSWCCA 260
Decision Date: 10 November 2014

CaseChat Overview and Summary

The case of Ortiz v The Queen involved the defendant, Ortiz, who was convicted as an accessory before the fact to a robbery that took place in the company of others. Ortiz appealed against his sentence, arguing that the sentence was excessive. The appeal was heard by the court, which had to determine the appropriate legal principles to apply in sentencing an accessory before the fact, particularly in light of the totality principle and the criminal history of co-offenders.

The court was required to address several legal issues, including the applicability of the totality principle in sentencing an accessory, the appropriate weight to give to the criminal history of co-offenders, and whether the sentence imposed was just and proportionate. The totality principle, which considers the totality of the offender's criminal conduct, was argued to be inapplicable in this context. The court also had to consider whether the disparity in sentencing between Ortiz and his co-offenders was warranted given their differing criminal histories.

The court held that the totality principle was not applicable in sentencing an accessory before the fact, as it did not take into account the nature of the offence or the role of the accessory. The court further found that the criminal history of the co-offenders did not warrant a greater disparity in sentence, as the accessory's role was distinct from that of the principal offenders. The court ultimately concluded that the sentence imposed was appropriate and proportionate, taking into account the seriousness of the offence and the role of the accessory. The appeal was therefore dismissed.

No further orders were made by the court.

Orders