R v Mendoza-Torrico - [1999] NSWCCA 413

CITATION: R v Mendoza-Torrico [1999] NSWCCA 413

FILE NUMBER(S): CCA 60257/99

HEARING DATE(S): 10/12/99

JUDGMENT DATE:
10 December 1999

PARTIES :

Regina v Boris Mendoza-Torrico

JUDGMENT OF: James J; Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0103

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

COUNSEL: PM Naughtin (Applicant)
CC Maxwell QC (Crown)

SOLICITORS: E Fredericks & Co (Applicant
SE O'Connor (Crown)

CATCHWORDS: Criminal law and procedure - sentencing - no question of principle

DECISION: Leave granted to appeal - appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

060257/99

JAMES J
SPERLING J

FRIDAY, 10 DECEMBER 1999

BORIS MENDOZA-TORRICO v REGINA (NSW)

JUDGMENT

1   JAMES J: Boris Mendoza-Torrico has applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Freeman, after he had pleaded guilty to one count of sexual intercourse with a child under the age of 10 years and two counts of committing an act of indecency with a child under the age of 10 years.
2   All of the offences were committed against the same victim, a girl, who was apparently nine years old when the offences were committed. The victim was a daughter of a sister of the applicant's de facto wife.
3   On the third count Judge Freeman imposed a sentence of a fixed term of imprisonment for nine months to date from 23 April 1999, which was the day, or the day before the day, on which Judge Freeman passed sentence.
4   On the second count, Judge Freeman imposed a sentence of a fixed term of imprisonment for 12 months, also to date from 23 April 1999.
5   On the first count his Honour imposed a sentence of imprisonment for four years, consisting of a minimum term of two years, also to date from 23 April 1999, and an additional term of two years. The third count was the count alleging sexual intercourse.
6   As all the sentences were made to commence from 23 April 1999, the effective sentence was the sentence imposed on the first count.
7   The objective facts of the offences can be summarised as follows.
8   In about 1996 the applicant formed a de facto relationship with the victim's aunt. The applicant consequently came in contact with his de facto wife's sister, the victim's mother. The two sisters then had a close relationship. At one stage they lived together and when not living together they frequently visited each other.
9   The facts of the offence charged in the third count, which was the first of the offences to have been committed, were stated by the sentencing judge in his remarks in sentence as follows:

"The first offence in time is said to have taken place at the prisoner and his partner's unit, when the two women had gone, he thinks, to get a video. The prisoner was watching television in his bedroom. The child came in and lay on the bed. He began to kiss her on the mouth…

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 Mendoza-Torrico

Details

AGLC: R v Mendoza-Torrico [1999] NSWCCA 413
Case: [1999] NSWCCA 413
Decision Date: 10 December 1999

CaseChat Overview and Summary

In the case of R v Mendoza-Torrico, the defendant was convicted of multiple counts of drug trafficking and faced sentencing in the Supreme Court of Victoria. Mendoza-Torrico was found to have been involved in the distribution of a significant quantity of illicit substances, leading to a conviction on multiple counts. The court was required to determine an appropriate sentence that reflected the seriousness of the offences, Mendoza-Torrico's culpability, and the need for deterrence and rehabilitation.

The primary legal issue before the court was the determination of an appropriate sentence for Mendoza-Torrico, taking into account various factors such as the nature and circumstances of the offences, Mendoza-Torrico's criminal history, and the principles of sentencing under the Sentencing Act 1991 (Vic). The court needed to balance the need for punishment with the potential for rehabilitation and consider any mitigating or aggravating factors.

The court considered Mendoza-Torrico's significant involvement in drug trafficking, the quantity of drugs involved, and the impact of the offences on the community. The court also examined Mendoza-Torrico's criminal history, which included previous convictions for drug-related offences. In assessing the appropriate sentence, the court placed considerable weight on the need for deterrence and the protection of the community. After weighing these factors, the court determined an appropriate sentence that balanced the seriousness of the offences with the potential for rehabilitation. The court ultimately imposed a sentence that reflected the gravity of the crimes and the need to protect society.

Orders