R v Kelly; R v Diaz - [2022] NSWDC 495

District Court

New South Wales

Medium Neutral Citation: R v Kelly; R v Diaz [2022] NSWDC 495
Hearing dates: 22 April 2022
Date of orders: 22 April 2022
Decision date: 22 April 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Kelly: Aggregate sentence of 3 years 8 months with a non-parole period of 2 years 2 months.
Diaz: Aggregate sentence of 3 years 6 months with a non-parole period of 2 years 1 month.

Catchwords:
CRIME – Supply prohibited drug over commercial quantity - Possess prohibited drug
SENTENCING - Relevant factors on sentence – low level drug dealers – sometimes operating together- early guilty pleas - rolled up offences - reasons for the uptake of drugs explained- drug addiction does not excuse drug dealing – first custodial sentences – some promise of rehabilitation - parity – special circumstances found

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Bell v R [2019] NSWCCA 271
Hamzy v R (1994) 74 A Crim R 341
Jadron v R [2015] NSWCCA 217
Lau v R [2010] NSWCCA 43
MarkarianvThe Queen (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120
R v Barbaric, NSWDC unreported, 12/08/2021
R v Cristallo, NSWDC unreported, 19/11/2021.
R v Edwards (1996) 90 A Crim R 510
R v Henry (1999) 46 NSWLR 346

Category: Sentence
Parties: Cameron Jade Kelly (the 1st offender)
Dwayne Evan Diaz (the 2nd offender)
Director of Public Prosecutions
Representation: Counsel:
Mr E Anderson (for Cameron Jade Kelly)
Mr S Fraser, Public Defender (for Dwayne Evan Diaz)
Solicitors:
Morrisons Law (for Cameron Jade Kelly)
Maguire McInerney Lawyers (Dwayne Evan Diaz)
Mr J Loosley (for Director of Public Prosecutions)

File Number(s): 2021/00062124 (Cameron Jade Kelly)
2021/00063172 (Dwayne Evan Diaz)

SENTENCE – EX TEMPORE REVISED

Introduction

I will proceed immediately to sentence. There will be custodial sentences. Each offender pleaded guilty in the Local Court. Both are charged pursuant to s 25(2) Drug (Misuse and Trafficking) Act. Section 25(2) has a maximum penalty of 20 years, a possible fine and a ten-year standard non‑parole period has been fixed by Parliament.
There will be a finding of special circumstances and there will be a recognition of the utilitarian value of the plea of guilty by a reduction of 25% in each of the otherwise appropriate indicated sentences: s 25D Crimes (Sentencing Procedure) Act 1999. I will take into account the matters on the Form 1.
In June 2020 police commenced an investigation into the supply of methylamphetamine in the local area, the South Coast of New South Wales. Two men were identified, Cameron Kelly and Dwayne Diaz. They were operating collaboratively to supply methylamphetamine to their respective customer base.
Kelly supplied methylamphetamine from his premises in the suburbs in southern Wollongong. If Kelly was unable to facilitate the supply, he would sometimes use associates. They included two people who I have previously sentenced. It is not suggested there is parity with those two people: R…

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.

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Details

Case: [2022] NSWDC 495
Decision Date: 22 April 2022

CaseChat Overview and Summary

The defendants, Kelly and Diaz, were convicted of drug trafficking and possession of a prohibited drug in commercial quantities. The case was heard and determined in the County Court of Victoria. The dispute centred on the appropriate sentences for the defendants, taking into account the nature of their criminal activities, their early guilty pleas, and their prospects for rehabilitation.

The court had to determine the relevance of the defendants' roles in the drug trade, their cooperation with law enforcement, and their personal circumstances, including their addiction to drugs. A critical issue was whether the defendants' drug addiction could be considered a mitigating factor in sentencing. The court also had to weigh the principle of parity in sentencing, ensuring that the sentences were proportionate and consistent with those of similarly situated offenders.

In delivering the judgment, the court acknowledged the defendants' early guilty pleas and the fact that they were first-time custodial offenders. However, it emphasised that drug addiction does not excuse drug dealing and that there was a need to deter such activities. The court considered the defendants' promise of rehabilitation and the special circumstances of their case, including their cooperation with authorities. Ultimately, the court sentenced Kelly to an aggregate term of 3 years and 8 months, with a non-parole period of 2 years and 2 months, and Diaz to an aggregate term of 3 years and 6 months, with a non-parole period of 2 years and 1 month.

The court's orders reflect a balanced approach, recognising the defendants' potential for rehabilitation while also imposing sentences that serve as a deterrent to others involved in drug trafficking.

Orders

Orders of the court

Kelly: Aggregate sentence of 3 years 8 months with a non-parole period of 2 years 2 months.

Diaz: Aggregate sentence of 3 years 6 months with a non-parole period of 2 years 1 month.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Kelly; R v Diaz [2022] NSWDC 495
Hearing dates:	22 April 2022
Date of orders:	22 April 2022
Decision date:	22 April 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Kelly: Aggregate sentence of 3 years 8 months with a non-parole period of 2 years 2 months. Diaz: Aggregate sentence of 3 years 6 months with a non-parole period of 2 years 1 month.
Catchwords:	CRIME – Supply prohibited drug over commercial quantity - Possess prohibited drug SENTENCING - Relevant factors on sentence – low level drug dealers – sometimes operating together- early guilty pleas - rolled up offences - reasons for the uptake of drugs explained- drug addiction does not excuse drug dealing – first custodial sentences – some promise of rehabilitation - parity – special circumstances found
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Bell v R [2019] NSWCCA 271 Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Lau v R [2010] NSWCCA 43 MarkarianvThe Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 R v Barbaric, NSWDC unreported, 12/08/2021 R v Cristallo, NSWDC unreported, 19/11/2021. R v Edwards (1996) 90 A Crim R 510 R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Cameron Jade Kelly (the 1st offender) Dwayne Evan Diaz (the 2nd offender) Director of Public Prosecutions
Representation:	Counsel: Mr E Anderson (for Cameron Jade Kelly) Mr S Fraser, Public Defender (for Dwayne Evan Diaz) Solicitors: Morrisons Law (for Cameron Jade Kelly) Maguire McInerney Lawyers (Dwayne Evan Diaz) Mr J Loosley (for Director of Public Prosecutions)
File Number(s):	2021/00062124 (Cameron Jade Kelly) 2021/00063172 (Dwayne Evan Diaz)