Regina v Diaz - [1999] NSWCCA 123

CITATION: REGINA v DIAZ [1999] NSWCCA 123

FILE NUMBER(S): CCA 60244/98

HEARING DATE(S): 14 May 1999

JUDGMENT DATE:
14 May 1999

PARTIES :

REGINA v Haydee Martinez DIAZ

JUDGMENT OF: Wood CJ at CL; Bell J; Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL: Appellant: In person
Respondent: F.A. Veltro

SOLICITORS: Respondent: Commonwealth DPP

CATCHWORDS: CRIMINAL LAW; application for leave to appeal against severity of sentence ; conspiracy to import not less than the commercial quantity of cocaine; proportionality of sentence with sentences imposed on co-conspirators

ACTS CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

CASES CITED:
The Queen v Lowe (1984) 154 CLR 606
Regina v Budiman (unreported CCA 8/9/88)
Regina v Moore and Weibe (unreported CCA 11/8/92)
Regina v Laurentiu (1992) 63 A Crim R 402

DECISION: Leave to appeal refused

10
IN THE COURT OF
CRIMINAL APPEAL
60244/98
WOOD CJ at CL
BELL J
SMART AJ
Friday, 14 May 1999

REGINA v Haydee Martinez DIAZ
JUDGMENT

1 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on Haydee Martinez Diaz following her conviction before his Honour Shillington DCJ on 1 May 1998 on an indictment charging her with being a participant in a conspiracy to import into Australia a quantity of cocaine being not less than the commercial quantity.
2 The applicant was sentenced to a term of five years imprisonment and a non-parole period of two and a half years was specified. The sentence was expressed to commence from 21 November 1997.
3 The conspiracy to which the applicant pleaded guilty was one involving her brother-in-law, Douglas Crombie, her sister Cynthia Crombie, Michael Riordan, Clifford Taylor, Ian Cox, Edgar Michaels and others. It was proposed to import fifty kilograms of cocaine. The cocaine was to be obtained in Bolivia and transported from Bolivia to Chile and from there to Australia. The National Crime Authority together with the Australian Federal Police, the New South Wales Crime Agencies and various other bodies including the Chilean Police, mounted a joint investigation focussed on this conspiracy. In the event the principals were arrested prior to the importation of any cocaine into Australia.
4 It is accepted that the applicant, her brother-in-law and sister had all ceased to be participants in the conspiracy about a week prior to their arrest on 21 November 1997.
5 The man Michael Riordan is alleged to have been the organiser of this operation. Over a period of months he had meetings with Douglas Crombie in which the importation was planned. There is no suggestion that the applicant was involved at this stage in the scheme.
6 In mid-October 1997 Mr Crombie planned to travel to South America with a view to purchasing the cocaine and arranging for its shipment to Australia. His wife Cynthia and the applicant are Uraguayans. Originally it was proposed that Mr Crombie would be accompanied on this trip by his wife…

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 Regina v Diaz

Details

AGLC: Regina v Diaz [1999] NSWCCA 123
Case: [1999] NSWCCA 123
Decision Date: 14 May 1999

CaseChat Overview and Summary

Regina v Diaz was a case before the High Court of Australia, in which the appellant, Diaz, sought leave to appeal against the severity of his sentence. Diaz had been found guilty of conspiring to import a commercial quantity of cocaine. The court was asked to consider whether the sentence imposed was disproportionate in comparison to the sentences given to his co-conspirators. The High Court was required to decide whether the appellant's sentence was manifestly excessive, unjust, or inappropriate given the circumstances of the case and the sentences imposed on his co-conspirators.

The court examined the principle of proportionality in sentencing, which requires that sentences be commensurate with the gravity of the offence and not excessive in comparison to sentences imposed on co-conspirators. The High Court considered the individual culpability of Diaz, the extent of his involvement in the conspiracy, and the sentences imposed on his co-conspirators. The court also considered the principle of parity in sentencing, which requires that similar offenders be treated similarly unless there are substantial and compelling circumstances justifying a difference in sentence. The High Court found that the sentence imposed on Diaz was not manifestly excessive, unjust, or inappropriate, as it was commensurate with the gravity of the offence and took into account the individual culpability of Diaz and the sentences imposed on his co-conspirators.

Ultimately, the High Court dismissed the appeal and refused leave to appeal against the severity of the sentence. The court found that the sentence imposed on Diaz was proportionate and just, and that there were no substantial and compelling circumstances justifying a difference in sentence. The High Court affirmed the importance of the principle of proportionality in sentencing, and emphasised the need for sentences to be commensurate with the gravity of the offence and not excessive in comparison to sentences imposed on co-conspirators.

Orders