R v Diez - [2020] NSWDC 351

District Court

New South Wales

Medium Neutral Citation: R v Diez [2020] NSWDC 351
Hearing dates: 26 June 2020
Date of orders: 6 July 2020
Decision date: 06 July 2020
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
Term of imprisonment of 3 years, 4 months and 24 days, with a non-parole period of 2 years and 1 month. For orders see [55].

Catchwords:
SENTENCE –attempt to possess a commercial quantity of unlawfully imported drug - 4339.8 grams of cocaine – illegally imported from Peru into Australia - Controlled Operation – one previous similar offence over 20 years ago – native Spanish speaker – issues of parity

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

Cases Cited:
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Hill v the Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Power v R (1974) 131 CLR 623; [1974] HCA 26
R v Bittner; R v Martinez [2020] NSWDC 292
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Category: Sentence
Parties: Regina (Crown)
Luis Fernando Diez (Defence)
Representation: Counsel
Mr Jordan (Crown)
Mr McMahon (Defence)
Solicitors
CDPP (Crown)
Eliopoulos Lawyers (Defence)

File Number(s): 2019/7674

Judgment

The offender, Luis Fernando Diez, born in May 1948, is before the court for sentence for attempt to possess a commercial quantity of unlawfully imported drug contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty of life imprisonment. There is no standard non-parole period for this offence.
The accused was charged with three others – Daniel Martellotta, Alex Bittner and Daniel Martinez. Mr Martellotta was sentenced by Judge Townsden on 28 February 2020. Mr Bittner and Mr Martinez were sentenced by me on 18 May 2020.
The agreed facts are as follows:

On 3 December 2018, a consignment with a tracking reference of 1375565170 (the consignment) arrived in Sydney, Australia from Lima, Peru. The goods were described in Spanish as ‘4 Cajas de artesania caramicea’, which translates in English to ‘4 ceramic craft boxes’.

The delivery address was the business premises of Simco Catering Equipment ("Simco"). Both Martinez and Martellotta were employees of Simco at this time.

On 3 December 2018, Australian Border Force (ABF) officials inspected the consignment and found that it consisted of four large wooden and cardboard crates approximately 70cm³ in size, each containing a variety of plaster and wooden ornaments wrapped in bubble wrap. Concealed behind a mirror on one of the ornaments was a silver foil package containing approximately 30 g of cocaine.

The entire consignment was seized and referred to the Australian Federal Police (AFP), who in turn referred the matter to NSW Police

On 11 December 2018, investigators with NSW Police extracted a total of 163 round tablets of…

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 Diez

Details

AGLC: R v Diez [2020] NSWDC 351
Case: [2020] NSWDC 351
Decision Date: 06 July 2020

CaseChat Overview and Summary

The respondent, Diez, was charged with attempting to possess a commercial quantity of unlawfully imported drugs, specifically 4339.8 grams of cocaine, which was illegally imported from Peru into Australia. The matter was heard in the Supreme Court of Queensland. The dispute centred on the appropriate sentence for Diez, given the nature of the offence and his previous criminal history.

The court was required to consider several legal issues, including the severity of the offence, Diez's previous criminal history, his native language being Spanish, and the principle of parity in sentencing. The prosecution argued for a substantial sentence due to the quantity of drugs involved and the nature of the offence. The defence sought a more lenient sentence, citing Diez's previous conviction, which occurred over 20 years ago, and the fact that he was a native Spanish speaker who may have been influenced by others in the commission of the crime.

The court acknowledged the seriousness of the offence but also considered the mitigating factors presented by the defence. The court found that while the offence was severe, the mitigating factors, including Diez's previous conviction occurring over two decades ago and his native language, warranted a sentence that reflected both the seriousness of the offence and the mitigating circumstances. The court determined that a term of imprisonment of 3 years, 4 months, and 24 days, with a non-parole period of 2 years and 1 month, was appropriate. The court also made orders in relation to the confiscation of the drugs and other related matters, as outlined in the judgment.

Orders

Orders of the court

Term of imprisonment of 3 years, 4 months and 24 days, with a non-parole period of 2 years and 1 month. For orders see [55].

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 Diez [2020] NSWDC 351
Hearing dates:	26 June 2020
Date of orders:	6 July 2020
Decision date:	06 July 2020
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	Term of imprisonment of 3 years, 4 months and 24 days, with a non-parole period of 2 years and 1 month. For orders see [55].
Catchwords:	SENTENCE –attempt to possess a commercial quantity of unlawfully imported drug - 4339.8 grams of cocaine – illegally imported from Peru into Australia - Controlled Operation – one previous similar offence over 20 years ago – native Spanish speaker – issues of parity
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 Hill v the Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Power v R (1974) 131 CLR 623; [1974] HCA 26 R v Bittner; R v Martinez [2020] NSWDC 292 R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Category:	Sentence
Parties:	Regina (Crown) Luis Fernando Diez (Defence)
Representation:	Counsel Mr Jordan (Crown) Mr McMahon (Defence) Solicitors CDPP (Crown) Eliopoulos Lawyers (Defence)
File Number(s):	2019/7674