R v Munoz - [2003] NSWCCA 133

CITATION: R v Munoz [2003] NSWCCA 133 revised - 09/05/2003

HEARING DATE(S): 30/4/03

JUDGMENT DATE:
30 April 2003

JUDGMENT OF: Wood CJ at CL at 1, 28; Simpson J at 27

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - using an offensive weapon with intent to prevent a member of the Police Service from investigating an act reasonably calling for investigation - discharging a firearm in a manner likely to endanger the safety of others - importation of cocaine into Australia. Appeal dismissed.

LEGISLATION CITED: Crimes Act 1900
Customs Act (Cth) 1901

CASES CITED: R v Bahsa [2003] NSW CCA 36
R v Bazzi [1999] NSWCCA 346
R v Greene [2001] NSWCCA 258
R v Hamilton (1993) 66 A Crim R 575
Pearce v The Queen (1998) 194 CLR 610
R v Watts [2000] NSWCCA 167

PARTIES :
Regina
David Alexander Munoz

FILE NUMBER(S): CCA 60029/03

COUNSEL: L M B Lamprati (Crown)
A C Haesler (Applicant)

SOLICITORS: S E O'Connor
D J Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0323; 01/11/1248

LOWER COURT
JUDICIAL OFFICER : Holt DCJ

- 2 -

60029/03

WOOD CJ at CL
SIMPSON J

Wednesday 30 April 2003

Regina v David Alex Munoz

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of imprisonment for a fixed term of two years for an offence of using an offensive weapon with intent to prevent a member of the Police Service from investigating an act reasonably calling for investigation. Such offence is one for which the maximum available sentence pursuant to s 33B of the Crimes Act is imprisonment for twelve years.

2 At the same time he was sentence to a cumulative fixed term of two years for an offence under s 93G of the Crimes Act for discharging a firearm in a manner likely to endanger the safety of others; and to two separate terms of six years, each cumulative upon the State offences, but concurrently with each other, for offences of having been knowingly concerned in the importation of cocaine into Australia contrary to s 233B of the Customs Act 1901.

3 The total sentence was accordingly one of ten years with an effective non-parole period of six years and nine months. The non-parole period was expressed to commence at the expiration of the fixed terms for the two State offences.

4 The application for leave to appeal is confined to the s 33B offence, it being submitted that the accumulation of sentences in relation to the two State offences resulted in a sentence that was manifestly excessive. Otherwise it was accepted that the sentences were appropriate.

5 The firearms offences were extremely serious having regard to the circumstances in which they were committed. On 15 July 2001, a resident of the premises in McGirr Parade, Warwick Farm, was seriously assaulted by a group of men. The applicant, who lived in premises in the same street,…

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 Munoz

Details

AGLC: R v Munoz [2003] NSWCCA 133
Case: [2003] NSWCCA 133
Decision Date: 30 April 2003

CaseChat Overview and Summary

The case of R v Munoz involved the defendant appealing the severity of a sentence imposed by a lower court. Munoz was convicted of multiple offences, including using an offensive weapon with the intent to prevent a police officer from investigating a reasonably suspicious act, discharging a firearm in a manner likely to endanger the safety of others, and importing cocaine into Australia. The appeal was heard in the relevant appellate court.

The legal issues before the court were centred around the severity of the sentence imposed on Munoz and whether it was appropriate given the nature and circumstances of the offences committed. The court was required to consider the principles of sentencing and whether the lower court had adequately balanced the seriousness of the offences with the need for deterrence and rehabilitation.

The court examined the evidence and the sentencing remarks of the lower court. It found that the lower court had appropriately considered the seriousness of Munoz’s offences and the need for a sentence that adequately reflected the gravity of the crimes. The court determined that the sentence was proportionate to the offences committed and that there were no errors in the legal process that would warrant a reduction in the sentence. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court beyond dismissing the appeal and affirming the lower court's sentence.

Orders