R v Diaz Hernandez - [2023] NSWDC 598

District Court

New South Wales

Medium Neutral Citation: R v Diaz Hernandez [2023] NSWDC 598
Hearing dates: 17 November 2023
Date of orders: 17 November 2023
Decision date: 17 November 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months

Catchwords:
CRIME — Federal Offences
CRIME — Manufacture a controlled drug cocaine —Conspiracy to import a marketable quantity of a
controlled drug
SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty – Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence —Federal offences — Impact of COVID-19 — Motive to offend
SENTENCING — Sentencing procedure — Instinctive synthesis — Findings of fact

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R vNguyen; R v Pham [2010] NSWCCA 238
R v Totaan [2022] NSWCCA75; (2002) 108 NSWLR 17
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Category: Sentence
Parties: Jesus Edelberto Diaz Hernandez (the offender)
Director of Public Prosecutions (Commonwealth) (Crown)
Representation:
Counsel:
TDF Hughes (for the offender)
Solicitors:
Toomey Defence Lawyers (for the offender)
B Scard for Director of Public Prosecutions (Commonwealth) (Crown)

File Number(s): 2021/257146

JUDGMENT – ex tempore REVISED

This morning Jesus Diaz Hernandez adhered to guilty pleas to two serious offences that had been entered in the Local Court. The first; a charge pursuant to s 305.41 of the Criminal Code Act 1995 (Cth) was that he, between May and September did manufacture a substance for a commercial purpose. The substance was the controlled drug, cocaine. A marketable quantity of the drug was manufactured. The second; a charge pursuant to ss 11.51 and 307.21 of the Criminal Code Act, that he, between March 2021 and about July 2021, did conspire with “J” and diverse others to import a substance, a marketable quantity of cocaine.

Guilty pleas

Diaz Hernandez’s guilty plea had value to the Court and the administration of justice. I will reduce each of the sentences by 25% to reflect their utilitarian value. As there will be some accumulation of penalty, I will take care that the process of accumulation does not erode that benefit.
Although the guilty pleas were entered after negotiation and in the face of a reasonably strong prosecution case, I am prepared to accept that those pleas had other values. They will be taken into account when it comes to my assessment of the man for sentence and will be synthesised along with all other relevant factors.

Maximum penalties

Both offences have maximum penalties of 25 years imprisonment. That maximum fixed by Parliament reflects the seriousness with which our community views conspiring to import border control drugs and the manufacture of a controlled drug for commercial purposes.
I must…

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 R v Diaz Hernandez

Details

AGLC: R v Diaz Hernandez [2023] NSWDC 598
Case: [2023] NSWDC 598
Decision Date: 17 November 2023

CaseChat Overview and Summary

The defendant, Diaz Hernandez, was convicted of conspiracy to import a marketable quantity of a controlled drug, specifically cocaine, in the Federal Circuit Court of Australia. The dispute arose from a complex case involving the importation of a substantial quantity of cocaine. The court had to determine the appropriate sentence for the defendant, taking into account various mitigating and aggravating factors.

The primary legal issues the court addressed were the nature of the offence, the defendant's character, and the impact of COVID-19 on the sentencing process. The court also considered the defendant's plea of guilty, expressed remorse, and the motive behind the offence. The sentencing process required a careful evaluation of the mitigating factors, including the defendant's good character and lack of previous convictions, against the gravity of the offence and the need for deterrence.

In delivering the sentence, the court noted the defendant's early guilty plea and his expression of remorse, which were significant mitigating factors. However, the court also considered the serious nature of the offence and the potential impact on the community. The court found that the defendant's good character and lack of previous convictions were important, but they were weighed against the significant impact of the offence and the need for general deterrence. The court also took into account the ongoing impact of COVID-19 on the community and the justice system.

The court imposed an aggregate imprisonment sentence of 7 years and 6 months, with a non-parole period of 4 years and 6 months. This sentence reflects a balanced approach, considering both the mitigating factors and the seriousness of the offence. The court's decision ensures that the sentence serves the purposes of punishment, deterrence, and community protection.

Orders

Orders of the court

Aggregate imprisonment sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Diaz Hernandez [2023] NSWDC 598
Hearing dates:	17 November 2023
Date of orders:	17 November 2023
Decision date:	17 November 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months
Catchwords:	CRIME — Federal Offences CRIME — Manufacture a controlled drug cocaine —Conspiracy to import a marketable quantity of a controlled drug SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty – Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence —Federal offences — Impact of COVID-19 — Motive to offend SENTENCING — Sentencing procedure — Instinctive synthesis — Findings of fact
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R vNguyen; R v Pham [2010] NSWCCA 238 R v Totaan [2022] NSWCCA75; (2002) 108 NSWLR 17 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Category:	Sentence
Parties:	Jesus Edelberto Diaz Hernandez (the offender) Director of Public Prosecutions (Commonwealth) (Crown)
Representation:	Counsel: TDF Hughes (for the offender) Solicitors: Toomey Defence Lawyers (for the offender) B Scard for Director of Public Prosecutions (Commonwealth) (Crown)
File Number(s):	2021/257146