R v Ortiz - [2013] NSWDC 282

District Court

New South Wales

Medium Neutral Citation: R v Ortiz [2013] NSWDC 282
Hearing dates: 22/08/2013
Decision date: 22 August 2013
Before: S Norrish QC
Decision:
Robbery in company 30/5/2012 - Sentenced to a term of imprisonment of 3 years and 9 months.
Robbery in company 12/06/2012 - Sentenced to a term of imprisonment of 5 years and 3 months, non parole period being 2 years and 6 months.

Catchwords: CRIMINAL LAW - Sentence - plea of guilty, accessory before the fact to robbery, special circumstances
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Hemsley [2004] NSWCCA 228
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Veen (No 2) v The Queen (1988) 164 CLR 465
R v Olivieri [2007] NSWSC 142
R v Murchie [1999] NSWCCA 424
R v Lesi [2004] NSWCCA 63
R v Stanley [2003] NSWCCA 233
R v Henry (1999) 46 NSWLR 346
R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383
Pearce v R (1998) 194 CLR 610
Category: Sentence
Parties: The Crown
Armando Salinas Ortiz (offender)
Representation: Director of Public Prosecutions
Legal Aid NSW

File Number(s): 2012/00195297

Sentence

HIS HONOUR: Armando Salinas Ortiz appears today for sentence in relation to two offences of accessory before the fact to robbery in company. The first offence in time was committed on 30 May 2012. It was particularised as happening at Killara, and the robbery in company was robbery in company, by persons unknown, of a man called Li Jun Wei of $200,000 worth of assorted jewellery. I will outline the facts in relation to that matter.

The particulars of accessorial liability by reference to the charge are that he did, "Incite, move, procure, counsel, hire and command the said persons", although the liability of the prisoner is not that of the "principal" in the criminal scheme in which he was involved.

The second offence in time of accessory before the fact of robbery in command occurred at Haberfield on 12 June 2012. The robbery in company was of two persons, Chi Ho So and Po Seng Choi of certain property, namely $750,000 worth of assorted jewellery, $20,000 in Australian currency, the property of Man King Jewellery Company Ltd of China, Chinese passports, a laptop computer and printer and a Rolex watch worth $6,000, the property of Po Seng Choi.

The particulars of accessorial liability are identical as to the first charge. Again it is not the Crown case, nor could I conclude, that the prisoner was a principal in the planning and preparation, nor obviously the 'executive', of the offence given his plea to being an accessory before the fact.

I will deal with the facts of the matter and what flows from them in the context of other material in the case in a moment, but it goes without saying that having regard to the actual robberies in company and the very significant value of property that was stolen from particular people, that this is a serious…

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 Ortiz

Details

AGLC: R v Ortiz [2013] NSWDC 282
Case: [2013] NSWDC 282
Decision Date: 22 August 2013

CaseChat Overview and Summary

In the case of R v Ortiz, the defendant was convicted of being an accessory before the fact to two separate robberies that occurred in company on 30 May 2012 and 12 June 2012. The matter was heard in a relevant Australian court, where the defendant had entered a plea of guilty to the charges. The court was tasked with determining an appropriate sentence for the defendant given the nature and circumstances of the offences.

The legal issues before the court involved the assessment of the appropriate sentence for the defendant, considering the plea of guilty, the role of the defendant in the offences, and any special circumstances that might warrant a particular sentence. The court was required to balance the gravity of the offences and the defendant's role as an accessory against any mitigating factors that might be present.

The court carefully considered the defendant's role as an accessory before the fact, noting the planning and preparation involved in the robberies. It also took into account the defendant's guilty plea, which generally warrants a lesser sentence. However, the court also considered the seriousness of the offences and the need for deterrence. The court ultimately determined that a term of imprisonment was warranted and sentenced the defendant to a term of imprisonment of 3 years and 9 months for the first robbery and 5 years and 3 months for the second, with a non-parole period of 2 years and 6 months for the second offence.

Orders

Orders of the court

Robbery in company 30/5/2012 - Sentenced to a term of imprisonment of 3 years and 9 months.

Robbery in company 12/06/2012 - Sentenced to a term of imprisonment of 5 years and 3 months, non parole period being 2 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 Ortiz [2013] NSWDC 282
Hearing dates:	22/08/2013
Decision date:	22 August 2013
Before:	S Norrish QC
Decision:	Robbery in company 30/5/2012 - Sentenced to a term of imprisonment of 3 years and 9 months. Robbery in company 12/06/2012 - Sentenced to a term of imprisonment of 5 years and 3 months, non parole period being 2 years and 6 months.
Catchwords:	CRIMINAL LAW - Sentence - plea of guilty, accessory before the fact to robbery, special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Hemsley [2004] NSWCCA 228 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Olivieri [2007] NSWSC 142 R v Murchie [1999] NSWCCA 424 R v Lesi [2004] NSWCCA 63 R v Stanley [2003] NSWCCA 233 R v Henry (1999) 46 NSWLR 346 R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383 Pearce v R (1998) 194 CLR 610
Category:	Sentence
Parties:	The Crown Armando Salinas Ortiz (offender)
Representation:	Director of Public Prosecutions Legal Aid NSW
File Number(s):	2012/00195297